You asked whether, for purposes of child’s benefits, a child would be considered the
son of a deceased numberholder when a marital presumption of paternity applies but
the child’s mother admits that the numberholder was not the biological father, his
name does not appear on the child’s birth certificate, and the divorce decree between
the numberholder and the mother does not list the child as the issue of their marriage.
The numberholder was an Ohio resident at the time of his death, and, therefore, Ohio
law controls this matter. For the reasons discussed below, we conclude that there
is clear and convincing evidence that the numberholder was not the child’s biological
father and, thus, the presumption of paternity would be rebutted and the child would
not be able to establish inheritance rights under Ohio law.
L~ has filed a claim on behalf of her son, M~, requesting surviving child’s benefits
on the Social Security record of R~. M~ was born on March XX, 2000—three days after
L~ and R~’s divorce was finalized on February XX, 2000.
Though M~ was conceived before the couple officially divorced, L~ and R~ had been
separated since December 1996, and L~ admits that R~ was not the biological father
and that she conceived M~ with another man while still legally married to R~. R~ is
not listed as M~’s father on his birth certificate, and M~ was not identified as a
child of the marriage in R~ and L~’s divorce decree. There is no evidence that M~
had any relationship with, or received any support from, R~ before R~’s death or that
he inherited anything from R~’s estate after his death.
L~ previously filed a surviving child’s claim on R~’s Social Security record on July
XX, 2008. Because L~ admitted that R~ was not M~’s biological father, the agency denied
her claim. The agency evaluated her prior claim under Michigan law, but should have
applied Ohio law because R~ was a resident of Ohio at the time of his death.
Section 202(d) of the Social Security Act provides for the payment of benefits to
the child of an insured numberholder who is retired, disabled, or deceased. 42 U.S.C.
§ 402(d). The Act provides that, when determining whether an applicant is the child
of a numberholder, the agency will apply the law that would be applied to determine
the inheritance of intestate personal property by the courts of the state where the
numberholder was domiciled at the time of death. 42 U.S.C. § 416(h)(2)(A), 20 C.F.R.
§ 404.355(b)(4). Here, the numberholder was domiciled in Ohio at the time of his death.
If M~ could inherit the numberholder’s property under Ohio’s intestate succession
laws, therefore, he is the numberholder’s child for the purpose of eligibility for
surviving child’s benefits. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(4).
Under Ohio intestacy law, the right to inherit is based on whether paternity can be
established. See Ohio Rev. Code Ann. §§ 2105.06, 2105.17, 3111.01. A man is presumed to be the natural
father of a child if he and the child’s mother are or have been married and the child
is born during the marriage or within 300 days after the marriage is terminated by,
among other things, divorce or dissolution. Ohio Rev. Code Ann. § 3111.03(A)(1). This
presumption may be rebutted, however, with clear and convincing evidence. Ohio Rev.
Code Ann. § 3111.03(B). “Clear and convincing evidence is that level of proof that
would cause the trier of fact to develop a firm belief or conviction as to the facts
sought to be proven.” In re Leitch, No. 13-01-11, 2001 WL 1338961, at *3 (Ohio Ct. App. Oct. 31, 2001). The Supreme
Court of Ohio has held that “clear and convincing evidence sufficient to overcome
the presumption of paternity contained in § 3111.03(A)(1) may be adduced through any
or all of the enumerated methods prescribed by § 3111.10, including the submission
of genetic test results.” Hulett v. Hulett, 544 N.E.2d 257, 294 (Ohio 1989).
Here, we conclude that there is clear and convincing evidence to rebut the presumption
that R~ is M~’s natural father. First, though it was presumably against her interest
to do so, L~ has admitted repeatedly, in relation to both of the claims she filed
with the agency, that R~ is not M~’s biological father and that M~’s natural father
is a man with whom she had an affair before her divorce from R~ was finalized. Ohio
courts consider a party’s statements and admissions about paternity as relevant rebuttal
evidence. See Thompson v. Thompson, No. 94CA859, 1995 WL 481480, at *4 (Ohio Ct. App. Aug. 10, 1995) (noting that appellant
conceded in his appellate brief that he was not the biological father and that this,
along with other evidence, established that appellant was not the natural father even
though he acted in loco parentis for nine years, no one else had been established as the natural father, and the trial
court determined it was in the best interests of the child to place her with appellant
after his divorce from the child’s mother); Swingle v. Swingle, No. 88AP-852, 1989 WL 110995, at *3 (Ohio Ct. App. Sept. 26, 1989) (finding that
presumed father rebutted presumption of paternity when he and child’s mother stipulated
that they had not had sexual intercourse during the period of conception and two blood
tests showed conflicting results about whether presumed father could be excluded as
the child’s biological father).
Second, R~ is not named as the father on M~’s birth certificate, nor is M~ listed
as a child of the marriage in R~ and L~’s divorce decree. These are two additional
pieces of evidence that Ohio courts consider in paternity actions. See, e.g., Crago v. Kinzie, 733 N.E.2d 1219, 1223 (Ohio Ct. C.P. 2000) (holding that man, who identified himself
as natural father on birth certificates of two children born to his girlfriend, could
not disestablish himself as biological father by bringing claim and requesting genetic
testing many years later), Nwabara v. Willacy, 733 N.E.2d 267, 272 (Ohio Ct. App. 1999) (rejecting alleged natural father’s argument
that ex-husband, who was child’s presumed father, should be made party to paternity
suit because divorce decree between mother and ex-husband noted mother was then pregnant
and ex-husband was not biological father of child); Garrison v. Smith, 561 N.E.2d 1041, 1041-42 (Ohio Ct. App. 1988) (noting that there was not sufficient
evidence to overcome presumption that first husband was child’s father when second
husband, whom the mother alleged was the natural father, was not named as child’s
father on birth certificate, child was not mentioned in divorce decree between mother
and second husband, there was no evidence child was financially supported by second
husband, and second husband had not taken steps to acknowledge child as his own or
ensure she could inherit from him); Collett v. Cogar, No. 1301, 1987 WL 7586, at *5 (Ohio Ct. App. Mar. 6, 1987) (noting that, on remand,
mother’s affidavit stating that presumed father was not the child’s natural father
and divorce decree reflecting that the child was not the issue of the marriage should
be considered as rebuttal evidence to presumption of paternity and raised material
issue of fact sufficient to defeat summary judgment).
Finally, based on the facts provided, it does not appear that R~ did anything to establish
a parent-child relationship with M~ during R~’s lifetime, acknowledge him as a son,
or support him financially. Ohio courts will also consider whether the alleged or
presumed father took affirmative steps to establish his paternity of the child. See Bratten v. Henry, No. 63952, 1993 WL 4753, at *6-7 (Ohio Ct. App. Jan. 7, 1993) (finding that even
though child was born during marriage and listed in divorce decree as child of marriage,
there was clear and convincing evidence to rebut presumption of ex-husband’s paternity
when alleged natural father was listed as father on application for child’s birth
registration, which included sworn statements that he was child’s father, and alleged
natural father took affirmative steps to establish parent-child relationship and confer
right to inheritance on child). In fact, here, other than the presumption of paternity,
there appears to be no evidence to contradict L~’s admissions or the other evidence
confirming that R~ is not M~’s natural father.
One case that is particularly instructive is H.N.H. v. H.M.F., No. 84642, 2005 WL 927004 (Ohio Ct. App. Apr. 21, 2005). In H.N.H., the biological father had an affair with the child’s mother while she was married
to another man, who, in turn, would have been the presumed father under Ohio law.
Id. ¶ 2. When the child was born, all three parties agreed that the husband would be
listed as the father on the child’s birth certificate and that the biological father
would not be responsible for supporting the child. Id. The child was raised by the husband, and the biological father never had any contact
with the child. Id. Years later, the mother filed a claim for child support against the biological father,
explaining that “she waited to seek support until [the child] was of an age to understand
and benefit from a relationship with [the biological] father,” and genetic tests confirmed
that he was, in fact, the child’s natural father—not the husband. Id. ¶ 4. The biological father appealed, arguing, in part, that the court erred by disestablishing
the parent-child relationship between the mother’s husband, who was the presumed father,
and the child. Id. ¶ 7. The appellate court disagreed, emphasizing that the parties all acknowledged
that the husband was not the biological father and noting that if the biological father
had wanted to prevent a later action for support, he should have signed the child’s
birth certificate and then consented to the husband’s adoption of the child, which
would have legally severed the relationship with the biological father. Id. ¶ 9. While the H.N.H. case also involved evidence of genetic testing that confirmed what all the parties
already had acknowledged, the case suggests that admissions that the presumed father
is not the natural father—particularly when reiterated by both the mother and the
presumed father—can rebut the presumption of paternity. Though we do not know in this
case whether M~’s biological father has informally acknowledged paternity, the facts
are similar to H.N.H. in that L~ admits R~ was not M~’s biological father and R~’s tacit agreement with
this is reflected by the fact that he was not named as the father on M~’s birth certificate,
M~ was not listed as a child of the marriage in the divorce decree, and there is no
evidence that R~ ever sought to establish a relationship with M~ or support him in
any way before R~’s death.
You pointed out that POMS PR § 01115.039 cited an Ohio case that indicated a stipulation,
affidavit, or similar party statement regarding paternity is not necessarily sufficient
to overcome a presumption of paternity. See POMS PR § 01115.039L; see also Nelson v. Nelson, 460 N.E.2d 653 (Ohio Ct. App. 1983). But the Nelson case is distinguishable. In Nelson, a divorce decree granted the husband temporary custody of two children born during
the marriage. Id. at 654. The husband, who had always known he was not the biological father of one
of the children, then sought permanent custody of both children, but the mother objected.
Id. The trial court determined that, even though the husband was not the biological father
of one child, the husband still maintained the legal rights and obligations of a parent
because the child was born during the marriage and the husband considered the child
as his own. Id. at 653. While both husband and wife stipulated that the husband was not the child’s
biological father and the husband stated the same in an affidavit he filed with the
court, the court held this was not enough to overcome the presumption of paternity
under § 3111.03(A). Id. at 654-55. Factoring heavily into the court’s decision, however, was the fact that
the husband continued to act as the child’s father for 12 years and that the child
did not know the husband was not his biological father—the court did not wish to disturb
that well-established relationship between parent and child, which the husband had
nurtured for so many years. Id. at 654-55. Specifically, the court noted that “[d]ue to the length of time that defendant
considered the oldest child to be his son and the natural mother’s concomitant assent
thereto, both parties are effectively estopped from denying parentage by stipulation.”
The Nelson court did not hold, however, that stipulations, admissions, or affidavits could never
be sufficient to rebut the presumption of paternity. The court merely refused to allow
the parties’ stipulation that the presumed father was not the natural father to outweigh
and disrupt the close 12 year relationship the husband had with his son. Here, there
is no evidence that R~ had any relationship with M~ or that he supported M~ in any
way. Unlike in Nelson, this is not a case where a court would be reluctant to let a stipulation defeat
the presumed father’s wishes to care for and take custody of the child with whom he
had a long-standing, parent-child relationship.
For these reasons, we conclude that M~ would not be able to establish inheritance
rights from R~ under Ohio law and, thus, should not be considered R~’s child for purposes
of child’s benefits.
As discussed above, though R~ is presumed to be M~’s natural father under Ohio law,
there is clear and convincing evidence to rebut this presumption, including L~’s admission
that R~ is not M~’s biological father, R~ was not named as the father on M~’s birth
certificate, and M~ was not identified as a child of R~ and L~’s marriage in their
divorce decree. Thus, M~ would not have inheritance rights with respect to R~ and,
therefore, should not be considered his child for benefit purposes.
Acting Regional Chief Counsel, Region V
By: Catherine L. Gibbons
Assistant Regional Counsel