You asked for advice as to whether L~ is entitled to child’s benefits on the Social
Security record of R~. For the reasons discussed below, we believe that L~ meets the
requirements for entitlement under section 216(h)(2)(A) of the Social Security Act,
because he would be able to inherit under Kansas intestacy law as the child of R~.
The information you provided shows that on April XX, 2011, T~ filed an application
for child’s insurance benefits for her son, L~, on the record of R~.  L was born on July XX, 2010. During the application process, T~ admitted that she
was married to another man, D~, when L~ was born, but maintained that R~ is L’s biological
T~ submitted deoxyribonucleic acid (DNA) test results, obtained by the Kansas Department
of Social and Rehabilitation Services (SRS), excluding D~ as L’s biological father
with a 0.00 percent probability of paternity.  T~ also reported that although she was still legally married to D~, she had not lived
with him since February 2007. She said that D~ had asked about L~ on only one occasion
and she told him that L~ was not his son.
T~ also provided a “Father’s Affidavit” and “Paternity Consent Form,” signed by R~
on April 18, 2011. In the affidavit and consent form, R~ acknowledged his paternity
of L~ and requested that L~’ birth certificate be amended to list him as the father
and change L~’s last name to “N~.”  By signing the affidavit, R~ acknowledged that he was creating “a permanent father
and child relationship” with L~ and L~ could subsequently inherit and receive public
benefits as his child. On April XX, 2011, the District Court of Cloud County, Kansas,
ordered the State Registrar to amend L~’ birth certificate to add R~ as L~’ father
and change L~’s last name to his.”
On April XX, 2011, T~ petitioned for divorce from D~. In her petition,
T~ stated that no children had been born to her marriage with D~.
Upon request, T~ and R~ each completed a Child Relationship Statement (SSA-2519) describing
R~’s relationship with L. Their statements were essentially identical and indicated
that R~ does not make regular and substantial contributions for L~’s support, but
he has admitted, both orally and in writing, that L~ is his son. In a telephone interview,
T~ clarified that R~ occasionally helps her with utility and rent payments and had
told his adult children that L~ was his son. She also reported that SRS had ordered
a paternity test for R~ and she planned to move in with him.
On May XX, 2011, T~ called the Field Office and reported that the DNA test confirmed
that R~ was L’s biological father.  We received the results on May XX, 2011. The results showed a 99.99 percent probability
that R~ is L~’s biological father.
Section 202(d)(1) of the Social Security Act (Act) establishes the criteria for entitlement
to child’s insurance benefits. This section provides that every child (as defined
in section 216(e)) of an individual receiving old-age benefits under the Act is entitled
to benefits if the child applies for benefits, is unmarried and under 18, and was
dependent on the insured at the time the application was filed. See 42 U.S.C. § 402(d); 20 C.F.R. § 404.350. To qualify as the “child” of an insured individual
under section 216(e), the applicant must be the natural child, legally adopted child,
stepchild, grandchild or stepgrandchild, or equitably adopted child of the insured
individual. See also 20 C.F.R. §§ 404.350(a), 404.355-404.359. If the applicant qualifies as the insured's
child under section 216(e), he is also deemed dependent upon the insured for purposes
of determining eligibility for child's benefits. See 20 C.F.R. § 404.361(a).
In this case, there is no evidence to suggest that L~ is the legally adopted child,
stepchild, or equitably adopted child of R~. Therefore, the relevant inquiry is whether
L~ qualifies as R~’s natural child under the Act.
L~ may show that he is the child of R~ in one of four ways outlined in the Act. Section
216(h)(2) of the Act (42 U.S.C. § 416(h)(2)) provides that an applicant may be deemed
the child of a number holder if the following circumstances apply:
1. The applicant could inherit the insured’s property as the insured’s child under
the law of intestate succession in the state where the insured was domiciled at the
time the child filed the application. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b).
2. If the applicant does not qualify under the first provision, the child may be deemed
a child of the insured if the insured individual and the mother or father of the child
went through a marriage ceremony that, except for a procedural defect, would have
been a valid marriage. See 42 U.S.C. § 416(h)(2)(B); 20 C.F.R. § 404.355(a)(2).
If neither of those provisions is met, the applicant may be deemed a child of the
insured under section 216(h)(3) of the Act, if :
1. The insured individual acknowledged in writing that the applicant was his son or
daughter, was decreed by a court to be the father or mother, or was ordered to contribute
to the support of the child because they are his son or daughter. See 42 U.S.C. § 416(h)(3)(A); 20 C.F.R. § 404.355(a)(3). For an applicant to be deemed
a child under this provision, these acts must have occurred not less than one year
before the insured individual became entitled to old-age insurance benefits or attained
retirement age, whichever is earlier. See id.
2. The insured is shown by evidence satisfactory to the Commissioner of Social Security
to be the child's father, and the insured was living with or contributing to the child's
support at the time the child filed the application for benefits. See 42 U.S.C. § 416(h)(3)(A)(ii); 20 C.F.R. § 404.355(a)(4).
If the evidence establishes any of the above factual scenarios, the applicant is considered
the insured’s child for purposes of entitlement to child’s benefits. See 42 U.S.C. § 416(h)(3).
It is first necessary to determine whether L~ qualifies as R~’s child under section
216(h)(2) of the Act, as outlined above. As there is no evidence that T~ and R~ ever
attempted to marry, we will consider whether L~ could inherit R~’s property through
intestate succession. See 42 U.S.C. § 416(h)(2)(A).
As discussed, in determining whether an applicant is an individual’s child under the
law of intestate succession, the agency applies the law that would determine devolution
of intestate personal property by the courts of the state where the insured individual
was domiciled at the time the application was filed. See 42 U.S.C. § 416(h)(2)(A). If the child could take a share of the insured individual’s
personal property, under that state’s intestacy law, he is considered the insured
individual’s child for Social Security benefit purposes. See id.; 20 C.F.R. § 404.355.
The information you provided indicates that R~ was domiciled in Kansas at the time
L~ filed his application. Therefore, we apply Kansas’ intestacy laws to determine
if L~ would qualify as R~’s “child” under Kansas law. See 42 U.S.C. § 416(h)(2)(A);
20 C.F.R. § 404.355.
In Kansas, all “children” of an intestate decedent may share in an intestate estate.
See Kan. Stat. Ann. § 59-506. The term “children” is defined as “biological children,
including a posthumous child; children adopted as provided by law; and children whose
parentage is or has been determined under the Kansas parentage act or prior law.”
Kan. Stat. Ann. § 59-501(a).
In this case, DNA evidence establishes a 99.99 percent probability that R~ is L~’s
biological father. However, because T~ was married to D~ when L~ was born, there is
a statutory presumption that D~ is L~’s father. See Kan. Stat. Ann.
§ 38-1114; see also Janzen v. Janzen, 228 P.3d 425, 428 (Kan. App. 2010). The Kansas Parentage Act establishes the presumption
of paternity and describes how it is to be applied and how it may be rebutted. Kan.
Stat. Ann. § 38-1114.
The Kansas Parentage Act outlines several scenarios in which a man is legally presumed
to be the father of a child. See Kan. Stat. Ann. § 38-1114(a). For purposes of this opinion, the statute states, in
relevant part, that a man is presumed to be the father of a child if:
(1) The man and the child’s mother are, or have been, married to each other and the
child is born during the marriage . . .;
(4) The man notoriously or in writing recognizes paternity of the child . . .;
(5) Genetic test results indicate a probability of 97% or greater that the man is
the father of the child.
See Kan. Stat. Ann. § 38-1114(a).
A presumption arising under this section can only be rebutted by clear and convincing
evidence, by a court decree establishing paternity of the child by another man, or
if two or more conflicting presumptions arise which the court must resolve. See Kan. Stat. Ann. § 38-1114(b). If two or more presumptions arise which conflict with
each other, the presumption “founded on the weightier considerations of policy and
logic, including the best interests of the child, shall control.” Kan. Stat. Ann.
The facts of this case present conflicting presumptions of paternity. As L~ was born
during the marriage of D~ and T~, there is a statutory presumption that D~ is L~’s
father. See Kan. Stat. Ann. § 38-1114(a)(1). However, DNA test results indicate that D~ is not
L~’s biological father. There is also a statutory presumption that R~ is L~’s father,
because R~ acknowledged in writing that L~ is his son and genetic test results establish
a 99.99 percent probability that he is L~’s father. See Kan. Stat. Ann. § 38-1114(a)(4), (5). Because the statute establishes conflicting
presumptions of paternity, we must determine which presumption is “founded on the
weightier considerations of policy and logic.” See Kan. Stat. Ann. § 38-1114(b).
The Kansas Supreme Court has concluded that the “ancient presumption of the legitimacy
of a child born in wedlock is one of the strongest presumptions known to the law.”
In re Marriage of R~, 783 P.2d 331, 335 (Kan. 1990). Kansas courts have also held that DNA testing is
not conclusive of paternity. See id. at 338 (noting that exclusive reliance on DNA testing is contrary to the longstanding
public policy “that a child born during a marriage should not be bastardized”); see also Reese v. Muret, 150 P.3d 309, 313 (Kan. 2007); In re Marriage of P~, 58 P.3d 680 (Kan. 2002); Ferguson v. Winston, 996 P.2d 841 (Kan. Ct. App. 2000).
Accordingly, Kansas courts will not “subvert the presumption of paternity in favor
of biology without requiring a court to consider whether it is in the child’s best
interests” to do so.  R~, 150 P.3d at 316. Therefore, we must consider whether rebutting the presumption of
D~’s paternity is in L~’s best interest.
In determining a child’s best interest, the court considers the issue “from the child’s
point of view.” Jensen v. Runft, 843 P.2d 191, 194 (Kan. 1992). Because shifting of paternity from the presumed father
could be “detrimental to the child,” the courts examine the child’s physical, mental,
and emotional needs in considering the child’s best interests. R~, 783 P.2d at 339.
Although L~ was born during the marriage of D~ and T~, T~ reported that she was not
living with D~ when L~ was born and there is no evidence that D~ provides support
for L~ or has even attempted to establish a relationship with him. In fact, T~ stated
that D~ had only asked about L~ on one occasion and she informed D~ that L~ was not
his son. Furthermore, after receiving DNA test results, SRS dismissed a pending court
action against D~, stating that D~ was not L~’s biological father.
On the other hand, R~ has acknowledged, both orally and in writing, that L~ is his
son. As part of his acknowledgement, R~ confirmed his understanding that he was responsible
for L~’s care and support and L~ could inherit and receive benefits as his son. R~
also obtained a court order adding his name to L~’s birth certificate and changing
L~s’s last name to “N~.” Additionally, although L~ does not live with R~, R~ provides
occasional assistance to L’ mother and T~ indicated that she planned to move in with
The stated purpose of the Kansas Parentage Act is to “ensure that the legal obligations,
rights, privileges, duties and obligations incident to . . . the father/child relationship
would be carried out.” R~, 783 P.2d at 334. After weighing the available evidence, we believe that R~’s relationship
with L~ best fulfills the purposes of the Kansas Parentage Act and a Kansas court
would determine that it is in L~’s best interest to rebut the presumption of D~’s
paternity in favor of R~. As L~’s parentage in ~ could be established under the Kansas
Parentage Act, L~ meets the definition of a child who could inherit R~’s property
under Kansas’ intestacy laws. Therefore, it is our opinion that L~ meets the requirements
for entitlement to child’s insurance benefits under section 216(h)(2)(A) of the Social
In your memorandum, you expressed concern that we could not consider T~’s statements
denying D~’s paternity, because the Lord Mansfield Rule prohibits a mother or father from declaring that a child born during their marriage
is illegitimate. Although Program Operations Manual System (POMS) GN 00306.026 states that Kansas still follows the Lord Mansfield Rule, our research indicates that the rule in no longer applicable in Kansas. The Kansas
Supreme Court stated, in R~, 783 P.2d at 335, that although Kansas courts have not explicitly overruled the Lord Mansfield Rule, the rule has been modified by more recent court cases and by Kansas’ adoption of
the Kansas Parentage Act.
Under the Kansas Parentage Act, there is no distinction between legitimate and illegitimate
children and the parent and child relationship extends equally to every child and
parent, regardless of the marital status of the parents. See Kan. Stat. Ann. § 38-1112; see also POMS GN 00306.085. In other words, all children have the same legal relationships with their parents,
regardless of whether their parents are married or unmarried. Additionally, although
a child is presumed a child of the marriage, that presumption can be rebutted, as
outlined above, and any person acting on behalf of the child can bring a court action
to determine paternity. See Kan. Stat. Ann. §§ 38-1114(a), 1115(a); see also Kan. Stat. Ann. § 38-1118(a) (a court may, upon the motion of any party to a paternity
action, order genetic testing). Therefore, T~ is not precluded from asserting that
R~ is L~’s father.  Furthermore, as you noted, there is additional evidence, including DNA test results,
excluding a biological relationship between R~ and L~.
You also asked whether L~ could qualify as a “child” under section 216(h)(3)(A) of
the Act, based on R~’s written acknowledgement that L~ is his son. As discussed above,
an applicant can be deemed the child of an insured individual under the Act if that
individual acknowledges in writing that the applicant is his son. See 42 U.S.C. § 416(h)(3)(A). However, if the insured individual is entitled to old-age
benefits, his acknowledgment must be made at least one year before he becomes entitled
to old-age insurance benefits or attains retirement age, whichever is earlier. See id. Our records indicate that R~ became entitled to old-age benefits in 2003. Since,
L~ was not born until July 2010, it was not possible for R~ to make a statement acknowledging
paternity within the timeframe required by the Act. Therefore, L~ does not qualify
as N~’s “child” under section 216(h)(3)(A) of the Act.
Lastly, you asked for guidance in determining the retroactive effect of L~’s benefits.
The Act provides that a child of an insured individual entitled to old-age benefits
shall be entitled to benefits for each month, beginning with the first month throughout
which the child meets the criteria outlined in section 202(d)(1) of the Act. See 42 U.S.C. § 402(d)(1)(C)(i). The regulations also state that if an applicant meets
all the requirements for entitlement while his application is in effect, he may receive
benefits from the first month he meets all the requirements for entitlement. See 20 C.F.R. § 404.621(a)(1). If a claimant meets all of the requirements for child’s
benefits prior to the date of his application, the claimant may be paid up to six
months of retroactive benefits. See 20 C.F.R. § 404.621(a)(2).
Agency policy provides that acts that legitimize a child tend to be given retroactive
effect, while acts conferring inheritance rights without legitimizing the child generally
operate prospectively. POMS GN 00306.055. However, in Kansas, as discussed above, there is no distinction between legitimate
and illegitimate children. See Kan. Stat. Ann. § 38-1112; see also POMS GN 00306.085 (In Kansas a child is considered legitimate from the date of birth.). Kansas law
also provides that once paternity is established, the father may be ordered to reimburse
the mother the expenses of support from the child’s date of birth. See Kan. Stat. Ann. § 38-1121(e);
see also J~, 228 P.3d 425 (citing In re Parentage of S~, 126 P.3d 445 (2006) (citing Skillett v. Sierra, 53 P.3d 1234, 1240-41 (Kan. App. 2002). Therefore, we believe that L~ is considered
legitimate since the date of his birth under the Kansas Parentage Act.
Since L~ is considered legitimate from birth, L~ met the requirements for entitlement
prior to his application date. Therefore, L~ is entitled to six months of retroactive
benefits prior to the date his application was filed. See 20 C.F.R. § 404.621(a)(2).
Because L~ could establish entitlement to inheritance under the relevant Kansas intestacy
statute, he qualifies as R~’s child under section 216(h)(2) of the Act. Furthermore,
L~ is entitled to retroactive benefits for six months prior to his application date.
Very truly yours,
Chief Counsel, Region VII
Assistant Regional Counsel.