Because West Virginia follows the Lord Mansfield Rule, the state has codified specific steps required before a non-spouse’s name may be listed on a birth certificate of a child born into a marriage. The mother and her husband must both execute affidavits of non-paternity, while the non-spouse biological father must execute an affidavit of paternity. Paternity established in this manner renders the non-spouse the child’s “father” for all legal purposes including, but not limited to, the establishment and enforcement of child support orders and intestate succession. Given these specific codified requirements for naming a non-spouse as the biological father on the birth certificate of a child born into a marriage in West Virginia, and the implications resulting therefrom, we believe a court would find such a birth certificate sufficient evidence to rebut the presumption of legitimacy.

You asked whether in West Virginia, which follows the Lord Mansfield rule, minor child R~ ("R~") is entitled to benefits on the record of the Number Holder J~ (“NH”), where R~ was born into a marriage between the NH and K~, R~'s mother, but the birth certificate and Numident record list R~'s father as non-spouse A~. Specifically, you asked whether K~'s acknowledgment of R~'s illegitimacy and inclusion of A~'s name on R~'s birth certificate are sufficient to rebut the presumption of legitimacy under West Virginia law.

We have reviewed the information you provided and researched the relevant provisions of West Virginia law. It is our opinion that a court will likely find that listing a non-spouse as the biological father on a birth certificate of a child born into a marriage is sufficient evidence to rebut the presumption of legitimacy in West Virginia.

Because West Virginia follows the Lord Mansfield Rule, the state has codified specific steps required before a non-spouse’s name may be listed on a birth certificate of a child born into a marriage. Specifically, the mother and her husband must both execute affidavits of non-paternity, while the non-spouse biological father must execute an affidavit of paternity. These affidavits serve as acknowledgement that the husband was not the child’s biological father and that the non-spouse was the child’s biological father. Paternity established in this manner renders the non-spouse the child’s “father” for all legal purposes including, but not limited to, the establishment and enforcement of child support orders and intestate succession. Given these specific codified requirements for naming a non-spouse as the biological father on the birth certificate of a child born into a marriage in West Virginia, and the implications resulting therefrom, we believe a court would find such a birth certificate sufficient evidence to rebut the presumption of legitimacy.

You provided the following background information. R~ was born on December XX, 2018 into a marriage between the NH and K~, who lived together in West Virginia. R~'s birth certificate, however, lists A~ as the biological father. You indicated that K~ acknowledges A~ to be R~'s biological father. The marriage between the NH and K~ ended when the NH passed away in West Virginia on June XX, 2019. On July XX, 2019, K~ filed for surviving child’s benefits on the record of the NH on behalf of R~, alleging that R~ is the legal child of the NH.

To qualify for child’s insurance benefits on the earnings record of an insured individual who has died, a claimant must be that individual’s “child.” See Social Security Act (Act) § 202(d); 20 C.F.R. § 404.350(a)(1). A claimant can qualify as the insured individual’s natural child if the claimant could inherit from the insured individual as his child. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b). To determine if a claimant could inherit from the insured individual, the Social Security Administration applies the intestacy laws of the state where the insured had his permanent home when he died. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1). Because the NH was domiciled in West Virginia when he died, we look to West Virginia law to determine whether the minor child could inherit from the NH as his child. Act § 216(h)(2)(A); 20 C.F.R. § 404.355(b)(4).

West Virginia’s intestacy law provides that the descendants of a decedent are eligible to inherit the decedent’s property. W. Va. Code § 42-1-2. State law defines descendants as “descendants of all generations, with the relationship of parent and child at each generation being determined by the definition of child and parent” under West Virginia law. W. Va. Code § 42-1-1(5). A parent “means an individual defined as a parent by law or on the basis of a biological relationship, marriage to a person with a biological relationship, legal adoption or other recognized grounds.” W. Va. Code § 49-1-204. As for the definition of child, the Supreme Court of Appeals of West Virginia has observed that “it is not defined . . .” and “[w]hile the absence of a clear definition of the term ‘child’ is troublesome, W. Va. Code § 42-1-1(5) specifies that, for the purpose of identifying descendants, ‘the relationship of parent and child’ is ‘determined by the definition of child and parent contained in this code.’” Hall v. Hall, 241 W. Va. 12, 20 (2018) (emphasis by the court). As the court explained, “if a parent whose parental rights have been terminated does not come within the definition of ‘parent’ as set out in the descent and distribution standards, then [an] issue may be resolved even in the absence of a clear definition of the term child.” Id. at 21. West Virginia follows the Lord Mansfield Rule, under which there is a strong presumption that a child born during a marriage is the husband’s child. Young v. Prichard, 542 S.E.2d 925, 929 (W. Va. 2000); State v. Reed, 149 S.E. 669, 671 (W. Va. 1929); POMS GN 00306.025. The Lord Mansfield Rule bars the mother of a child and her legal husband at the time said child was conceived or born from giving testimony that might prove that the child is illegitimate, i.e., that the child is the natural child of a man other than the husband. POMS GN 00306.025. West Virginia law, however, recognizes that the presumption of legitimacy may be rebutted with “clear and satisfactory evidence” of non-access of the husband, impotency, or sterility. See State ex rel J.L.K. v. R.A.I., 294 S.E.2d 142, 146 n.9 (W. Va. 1982); L.A.M. v. M.L.M., 250 S.E.2d 40, 43 (W. Va. 1978).

Here, there is no evidence of non-access of the husband, impotency, or sterility. However, as discussed above, R~'s birth certificate, created during the marriage between the NH and K~, listed a non-spouse as R~'s father. Under West Virginia law, if the mother was married at the time of either conception or birth, or between conception and birth, the name of the most recent husband shall be entered on a birth certificate as the father of the child unless, in relevant part:

(3) The mother, her husband, and an alleged father acknowledge that the husband is not the biological father and that the alleged father is the true biological father: Provided, that the conditions set forth in paragraphs (A) through (D) are met:

(A) The mother executes an affidavit of nonpaternity attesting that her husband is not the biological father of the child and that another man is the biological father; and

(B) The man named as the alleged biological father executes an affidavit of paternity attesting that he is the biological father; and

(C) The husband executes an affidavit of nonpaternity attesting that he is not the biological father; and

(D) Affidavits executed pursuant to the provisions of this subdivision may be joint or individual or a combination thereof, and each signature shall be individually notarized. If one of the parties is an unemancipated minor, his or her parent or legal guardian must also sign the respective affidavit.

(4) If the affidavits are executed as specified in subdivision (3) of this section . . . the alleged father shall be shown as the father on the certificate of live birth. Paternity established pursuant to subdivision (2) or (3) of this section establishes the father for all legal purposes including, but not limited to, the establishment and enforcement of child support orders, and may be rescinded only by court order upon a showing of fraud, duress or material mistake of fact.

W. Va. Code § 16-5-10(f)(3)-(4).

In the instant situation, because the NH and K~ were married at the time of R~'s conception and birth, in order for A~ to be named as R~'s father on a West Virginia birth certificate, the NH, K~, and A~ would each have had to acknowledge that J~ was not R~'s biological father and that A~ was R~'s true biological father. W. Va. Code § 16-5-10(f)(3). Specifically, K~ would have had to execute an affidavit of nonpaternity; A~ would have had to execute an affidavit of paternity; and the NH would have had to execute an affidavit of nonpaternity. W. Va. Code § 16-5-10(f)(3)(A)-(D). As set forth in the statute, these executed affidavits are a necessary prerequisite in order for A~ to be listed as the father on the child’s certificate of live birth. W. Va. Code § 16-5-10(f)(4).^[1]

Under West Virginia law, therefore, because A~ is listed as the biological father on R~'s birth certificate, he is R~'s father for all legal purposes. See id. In other words, A~ is recognized as R~'s “parent” under West Virginia law. W. Va. Code § 49-1-204. As such, R~ is, for all legal purposes, A~'s descendant, as she shares the parent and child relationship with A~ W. Va. Code § 42-1-1. Because R~ is A~'s descendant, and the NH appears to have signed an affidavit stating that he is not R~'s father for any legal purpose, R~ would not be considered to be the NH’s descendant for intestacy purposes.^[2] See Hall, 818 S.E.2d at 847 (explaining that a terminated parent fails to meet the definition of parent for intestacy purposes and, thus, the child is not a “descendant” of that parent and may not inherit). Accordingly, it is likely that a West Virginia court would determine that R~ is not the NH’s descendant and would not be able to inherit from his estate. She therefore would not be entitled to child’s insurance benefits on the NH’s earnings record.

For all of these reasons, it is our opinion that a West Virginia court will likely find that listing a non-spouse as the biological father on a birth certificate of a child born into a marriage is sufficient evidence to rebut the presumption of legitimacy under West Virginia law.

For the reasons stated above, it is our opinion that under West Virginia law, a birth certificate of a child listing a non-spouse as the father is sufficient evidence to rebut the presumption of legitimacy of a child born into marriage.

While the Lord Mansfield rule may bar acceptance of the testimony of the mother and her husband that they had been separated for more than a year prior to the claimant's birth, testimony from third parties and evidence of the number holder's sterility may serve as clear and satisfactory evidence to overcome the presumption of parternity in this case.

QUESTIONS PRESENTED

This is in response to your March 30, 2005 request for an opinion as to (1) whether the presumption of legitimacy between the Number Holder and Shiann C. M. P~ (Shiann) has been rebutted under West Virginia law; (2) whether a parent-child relationship between the Number Holder and Shiann has been established; (3) the effective date of that relationship; and (4) whether Shiann is entitled to retroactive benefits.

CONCLUSION

We have reviewed the information that you provided and have researched the relevant provisions of West Virginia law regarding the presumption of legitimacy of a child born during a valid marriage. Based on our research, we have concluded that the evidence is sufficient to overcome the presumption that Shiann is the Number Holder's child. Accordingly, Shiann is not entitled to child's benefits under the Number Holder's account.

The Office of the Regional Chief Counsel

Office of the General Counsel, Region III

P.O. Box 41777, Philadelphia, PA 19101

 

FACTUAL BACKGROUND

The following is a summary of the relevant facts in this matter. The Number Holder married Anna M. M~ (Anna M.) on December 26, 1989 in Ohio. Shiann was born during the marriage on January 7, 2004. Shiann's birth certificate does not identify the father.

Applications for a Social Security number (NUMI) for Shiann were completed on January 28, 2004 and November 9, 2004. While the first NUMI does not indicate any father information, the subsequent NUMI indicates that the father is unknown.

The Number Holder has been receiving disability benefits since May 2001. Anna M. filed applications for wife's and child's benefits based on the Number Holder's account on November 9, 2004. On November 17, 2004, a West Virginia Department of Health and Human Resources employee, Ms. R~, contacted the Agency because Anna M. admitted that she and the Number Holder had been living separate and apart for more than one year. Ms. R~ further advised the Agency that both the Number Holder and Anna M. admitted that Shiann was not the Number Holder's child. In a later report of contact, Ms. R~ advised the Agency that Anna M. stated that she and the Number Holder were getting a divorce, and that the Number Holder was demanding paternity testing to prove that the child was not his, in light of a vasectomy that he underwent years ago.

Based on this report of contact, an Agency employee met with the Number Holder and Anna M. on December 8, 2004, to confirm Ms. R~' information. During the meeting, the Number Holder and Anna M. signed a joint Statement of Claimant and Other Person in which the couple attests that they were separated from November 21, 2002, through September 2004. During this time period, the Number Holder and Anna M. did not see or visit one another.

In fact, Anna M. stated that she lived with Shiann's biological father for a portion of this time period. The Number Holder also provided medical records documenting that he had a vasectomy.

DISCUSSION

Child's benefits may be granted based on the earnings record of an insured person who is entitled to disability benefits if the applicant is the insured's child, and is dependent on the insured. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a) (2004). In determining whether an applicant is the insured's child, the Commissioner will apply the inheritance law of the state in which the insured was domiciled at the time the application was filed. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1) (2004). The Number Holder was domiciled in West Virginia at the time Shiann's mother filed the applications for benefits. Accordingly, West Virginia law applies.

In West Virginia, paternity must be established by clear and convincing evidence, defined as "that measure of degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established." Moore v. Goode, 375 S.E.2d 549,

554-55 (W. Va. 1988) (citing Wheeling Dollar Savings & Trust Co. v. Singer, 250 S.E.2d 369, 374 (W. Va. 1987)). Ordinarily, there is a strong presumption that a child born during a marriage is the husband's child. Young v. Prichard, 542 S.E.2d 925, 929 (W. Va. 2000). Indeed, West Virginia appears to still follow the Lord Mansfield rule, which bars a child's mother and her legal husband at the time the child was born from giving testimony that might show that the child is the natural child of a man other than the husband. See State v. Reed, 149 S.E. 669, 671 (W. Va. 1929). On the other hand, West Virginia clearly contemplates that the presumption of legitimacy may be rebutted with "clear and satisfactory evidence" of non-access of the husband, impotency, or sterility. See State ex rel J.L.K. v. R.A.I., 294 S.E.2d 142, 146 n.9 (W. Va. 1982); L.A.M. v. M.L.M., 250 S.E.2d 40, 43 (W. Va. 1978) (citing 9 Wigmore, Evidence § 2527 (Chadbourn Rev. 1961)).

The question remains as to the types of evidence which West Virginia courts will find meet the "clear and satisfactory evidence" standard. In L.A.M., a wife instituted a divorce action against her husband. In his answer, the husband denied that he was the father of a child born during the marriage and asserted facts tending to show he did not have access to his wife at the time of conception. The sole evidence of non-access to the wife was the husband's testimony. The Court held that the presumption had not been overcome since non-access of the husband had not been "clearly and satisfactorily" proved by the husband's mere self-serving denial of paternity. Id. at 43. The Court's ruling implies that the husband's testimony, coupled with other evidence of non-access, may have been sufficient to rebut the presumption of legitimacy.

We believe that clear and satisfactory evidence exists to overcome the presumption of legitimacy in the present case. Unlike the facts in L.A.M., where only the husband disputed paternity, the present case involves an acknowledgment by both the Number Holder and Anna M. that the Number Holder did not have access to Anna M. at the time Shiann was conceived. In addition, Anna M. admitted that during the time period that she and the Number Holder were separated, she lived with a man to whom she referred as Shiann's biological father.

Even if the Lord Mansfield rule would operate to bar this testimony, there is other evidence of non-access. Ms. R~, the West Virginia Department of Health and Human Resources employee, could testify to the Number Holder and Anna M. admissions. There is also evidence of sterility, insofar as the Number Holder provided the Agency with medical records revealing that he had a vasectomy on September 5, 1975, and a zero sperm count at a follow-up visit two weeks later.

Because clear and satisfactory evidence exists to rebut the presumption that the Number Holder is Shiann's biological father, there is no parent-child relationship. Accordingly, Shiann is not entitled to child's benefits under the Number Holder's account.

Donna L. C~

Regional Chief Counsel

By:____________________________

Elizabeth A. C~

Assistant Regional Counsel