Whether L~ and M~ , the biological children of Fanta (Fanta), are entitled to Social
Security benefits as the children of Sabo , the number holder (the NH).
Based on our analysis under section 216(h)(2)(A) of the Social Security Act (Act),
L~ and M~ are not entitled to benefits on the NH’s account. The evidence in the case
would not meet the requirements for L~ and M~ to inherit the NH’s personal property
under the clear and convincing standard of the Pennsylvania intestacy statute. Moreover,
the Social Security Administration (agency) is not obligated to give deference to
the New Jersey Superior Court’s default judgment according to Social Security Ruling
The NH has been receiving Social Security disability insurance benefits since March
1992. The NH was living in New York State in 1994 when he filed his disability application. However,
the NH has had a Pennsylvania address since 1997. The New York Center for Programs
Support (CPS) confirmed that the NH has had a Pennsylvania address since 1997.
On June, Fanta gave birth to twins, L~ and M~, in Newark, New Jersey. The birth certificates
list Alieu as the father.
Fanta later filed a complaint for child support against Alieu on April 19, 2010, at
which time the Superior Court of New Jersey in Hunterdon County issued a summons calling
for Alieu to undergo blood testing before the hearing. DNA test results obtained on
April 30, 2010 from Laboratory Corporation of America revealed that Alieu was not
the biological father of M~. The Hunterdon County Division of Social Services then
excluded Alieu as the biological father of both L~ and M~ by Notice of Genetic Testing
Results rendered May 6, 2010. Consequently, the court proceedings against Alieu were
canceled on May 24, 2010.
Fanta then sought to establish that the NH was the father of L~ and M~, and to order
child support from him. The Superior Court of New Jersey in Hunterdon County rendered
a default order on March 11, 2011, noting that the NH had been properly served to
appear for the hearing, but failed to do so. The default order notes that the NH
was served by certified mail, which was returned unclaimed, and by regular mail, which
was not returned. The NH’s address was not listed on the default order. The default
order established the NH’s paternity of L~ and M~ only based on long-arm jurisdiction
Long-arm jurisdiction allows a state to exercise jurisdiction over an out-of-state
defendant when there exists such minimum contacts with the state to satisfy “traditional
notions of fair play and substantial justice.” International Shoe Company v. Washington, 326 U.S. 310, 316 (1945). Specifically, New Jersey law states that New Jersey obtains
personal jurisdiction over an out-of-state defendant by various means, including a
court order consistent with due process of the law. 1B NJPRAC R 4:4-4(b)(3).
, and dismissed the complaint for support because the NH received Supplemental Security
Income (SSI) benefits. Contrary to the language in the default order, CPS confirmed
that the NH is receiving Social Security disability insurance benefits under Title
II of the Social Security Act (Act), not SSI benefits under Title XVI of the Act.
Thereafter, Fanta applied for auxillary children’s benefits on behalf of L~ and M~
on the NH’s account on March 29, 2012. In doing so, Fanta submitted a Child Relationship
Statement dated June 10, 2012, which identified the NH as the wage earner and father
of L~ and M~. But, she denied that the NH was ever decreed by a court to be the children’s
father, and that the NH was ever ordered by a court to contribute to the children’s
support. Fanta also denied a series of other questions that may have established a
relationship between the NH and L~ and M~. Also in this statement, Fanta described
her history with the NH, stating that they met in 1998. She stated that she and the
NH were a couple for about six months. She did not provide the dates of the relationship.
Fanta stated that she later discovered that she was pregnant. Fanta went on to say
that the NH told her he was going back to school, and the two lost contact. An agency
computer query noted that Fanta reported that she did not name the NH as the father
of the twins on each twin's birth certificate due to her religious background. Instead,
she chose to name Alieu on the certificates.
The NH submitted a statement stating that he had a short relationship with Fanta but
was not informed of her pregnancy or the birth of L~ and M~. He stated that once
he found out about their births, he inquired as to whether he was the father of the
twins. He notes that Fanta “categorically” denied that the twins were his children. Fanta
also told the NH that she had designated her boyfriend as the father and that his
name was on the twins’ birth certificates. The NH pressed Fanta for blood or DNA testing.
She agreed to the testing but then relocated with the twins to live with her family
in Africa. He and Fanta lost contact for about five years. Then, in 2008, the NH
was informed that Fanta sought to have him relinquish his paternal rights so that
Fanta’s boyfriend could adopt the children. The NH reports that he was surprised and
confused by this and arranged to meet Fanta in Elizabeth, New Jersey, and she agreed
to bring the children. Yet, when Fanta and the NH met, she did not bring the children. The
NH’s statement concluded that he was confused but still wished to resolve the situation.
To date, the NH has never acknowledged paternity of the children and has not been
ordered to pay support.
To qualify for child’s benefits on the earnings record of an insured individual, an
applicant must be the “child” of the insured individual. The child must also (1) apply
for child’s insurance benefits; (2) at the time such application is filed be unmarried
and either be under age 18 or be under age 19 and a full-time elementary or secondary
school student, or over 18 and under a disability which began before he attained the
age of 22; and (3) be dependent on the NH. Act § 202(d)(1); 20 C.F.R. § 404.350.
See Act § 202(d)(1); 42 U.S. C. 402(d)(1); 20 C.F.R. § 404.350(a) (2012). “Child” includes
the natural child of an insured individual. See Act § 216(e); 42 U.S.C. § 416(e); 20 C.F.R. § 404.355 (2012). Under section 216(h)(2)(A)
of the Act, in determining whether an applicant is the child of an insured individual,
the Commissioner applies the law governing the devolution of intestate personal property
applied by the courts of the state in which the insured individual was domiciled at
the time such applicant files the application. Act § 216(h)(2)(A). Because the NH
was domiciled in Pennsylvania at the time of the March 2012 application, Pennsylvania
State law of intestate succession applies in determining the claimants’ status as
the children of the NH for purposes of section 216(h)(2)(A) of the Act. 20 C.F.R.
§§ 404.355(a)(1), 404.355(b) (2012).
Analysis of Paternity under Pennsylvania Intestacy Law
We first turn to the question of whether the evidence would permit L and M~ to inherit
the NH’s personal property under Pennsylvania intestacy law. The Pennsylvania intestacy
statute provides that children born out of wedlock will be considered the children
of a putative father if one of the following conditions is met:
If the parents of a child born out of wedlock shall have married each other; or
If during the lifetime of the child, the father openly holds out the child to be his
and receives the child into his home, or openly holds the child out to be his and
provides support for the child which shall be determined by clear and convincing evidence;
If there is clear and convincing evidence that the man was the father of the child,
which may include a prior court determination of paternity.
20 Pa. Cons. Stat. Ann. § 2107(c). Here, the first two conditions have not been met. The
NH and Fanta were never married, and the NH never openly held out L~ and M~ as his
children. Therefore, the question becomes whether a Pennsylvania court would find
clear and convincing evidence that the NH was the father of L~ and M~.
Under Pennsylvania law, the clear and convincing evidence standard requires “‘proof
greater than a mere preponderance, but less than beyond a reasonable doubt.’” Estate of V~, 798 A.2d 203, 209 (Pa. Super. 2002). “‘Clear and convincing evidence’ is the highest
burden in our civil law and requires that the fact-finder be able to ‘come to clear
conviction, without hesitancy, of the truth of the precise fact in issue.’” In re Estate of H~, 647 A.2d 243, 244 (Pa. Super. 1994) (citing Lessner v. Rubinson, 592 A.2d 678, 681 (Pa. 1991)). Clear and convincing evidence means “‘testimony that
is so clear, direct, weighty, and convincing as to enable the trier of fact to come
to a clear conviction, without hesitancy, of the truth of the precise facts in issue.’” Paulshock v. Bonomo, 661 A.2d 1386, 1388 (Pa. Super. 1995). For purposes of paternity, clear and convincing
evidence may be proven through genetic testing or by a prior court determination of
paternity. In re Estate of G~, 587 A.2d. 749, 752 (Pa.Super. 1991).
Here, there was no paternity testing. Fanta listed Alieu as the father on the children’s
birth certificates, and only sought to establish the NH’s paternity of the twins after
her child support complaint against Alieu failed. In addition, Fanta initially denied
that the NH was the twins’ father, and refused to cooperate with the NH when the NH
voluntarily offered to undergo paternity testing. Moreover, the NH never asserted
paternity of the twins. We believe this evidence falls short of the clear and convincing
evidence standard. Therefore, L~ and M~ could not inherit the NH’s personal property
under Pennsylvania intestacy law.
Moreover, we believe that agency policy would not give deference to the New Jersey
default order. When determining whether to accept a trial court’s findings on domestic
relations issues, we look to Social Security Ruling (SSR) 83-37c, which adopted the
6th Circuit’s ruling in Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973). Under this Ruling, although SSA is not bound by a
state trial court’s decision in a case where the Commissioner was not a party, SSA
must only give deference to a trial court’s decision when the issue was genuinely
contested in state court by parties with opposing interests. SSR 83-37c.
We believe that the second requirement of SSR 83-37c was not met, i.e., the issue of whether paternity was genuinely contested by parties with opposing interests
in the proceeding before the court. The New Jersey court resolved the issue of paternity
on the basis of Fanta’s allegations of paternity after the NH was properly served
with notice of the hearing, but failed to appear. Thus, the issue of paternity was
not genuinely contested in court. The court did not resolve the issue of paternity
upon the presentation of evidence by parties with opposing interests. While there
is no specific agency guidance relating to New Jersey default orders, the agency’s
Program Operations Manual System (POMS) contains an opinion finding that a default
order of paternity issued in Pennsylvania was not genuinely contested for purposes
of SSA recognition. POMS PR 01210.042 (PR 12-012). There, an unmarried mother sought auxiliary benefits for her child
on the account of a deceased putative father. The Court of Common Pleas in Lancaster
County entered a default judgment for paternity and support, after the putative father
was properly served and failed to show up for the hearing. The finding was based solely
on the mother’s allegation that the putative father had admitted paternity to her
over the phone, but with no written evidence of such a declaration. Ultimately, the
agency refused to recognize the judgment, finding that the default order was not genuinely
contested by parties with opposing interests. POMS PR 01210.042 (PR 12-012). Similarly, another Pennsylvania opinion found that a court’s unsubstantiated
finding of a common law marriage was not generally contested between opposing parties,
due to a lack of evidence identifying parties and witnesses in a contested hearing. POMS
PR 05605.042 (PR 08-131). As such, we conclude that SSA is not bound by New Jersey Superior Court
default order of paternity in determining whether the NH is the twins’ father.
C. Alternative Sections of the Act
Finally, we consider whether the twins are entitled to benefits under any alternative
sections of the Act. When a claimant cannot establish that he is the wage earner’s
child under state intestate succession laws, the Act allows alternative avenues to
establish child status for survivorship benefits. First, under section 216(h)(2)(B),
an applicant can be deemed a child under the Act if his parents went through a marriage
ceremony that turned out to be legally invalid. See 42 U.S.C. § 416(h)(2)(B). This section of the Act is not applicable here because
there is no evidence that Fanta ever went through a marriage ceremony with the NH.
Second, under section 216(h)(3)(B)(i), an applicant can be deemed to be a child under
the Act where 1) the NH acknowledged paternity in writing, 2) the NH was decreed a
parent by a court, or 3) the NH was ordered by a court to contribute to the support
of the applicant. 42 U.S.C. § 416(h)(3)(B)(i)(I)-(III). In this case, the NH never
acknowledged paternity in writing. Although Fanta presented a New Jersey Superior
Court default order finding the NH to be the father of L~ and M~, we will not give
deference to this Order. As explained in detail above, pursuant to SSR 83-37c, SSA
should not give deference to the New Jersey Superior Court default order because the
issue of the NH’s paternity was not genuinely contested by the NH in the court proceeding.
Finally, the NH has not been ordered by a court to contribute to the support of L~
and M~. The New Jersey Superior Court default order clearly articulated that the default
order only makes a finding of paternity, and that the default order does not call
for support. In fact, the default order even states “ORDERED: DEFAULT ORDER FOR PATERNITY
ONLY BASED ON LONG-ARM JURISDICTION, COMPLAIN [sic] FOR SUPPORT DISMISSED AS DEFENDANT
IS SSI RECIPIENT.” Thus, the New Jersey default order does not compel the NH to contribute
to the support of L~ and M~.
Third, under section 216(h)(3)(B)(ii), an applicant can be deemed a child under the
Act if the NH was living with or contributing to the support of the child. See 20 C.F.R. § 416(h)(3)(B)(ii). In the instant matter, there is no evidence that the
NH was living with or contributing to the support of L~ and M~. Therefore, we find
that L~ and M~ cannot be deemed children of the NH under sections 216(h)(2)(B) and
216(h)(3)(B) of the Act.
We conclude that no parent-child relationship existed between the NH and L~ and M~
under the Act, and therefore, L~ and M~ are not entitled to benefits on the NH's record.
Stephen P. Conte
Regional Chief Counsel
Daniel R. Janes
Assistant Regional Counsel