PR 01110.034 New Mexico

A. PR 88-014 Entitlement of Armando J. M~ to Child's Insurance Benefits Based on Account of J., Ralph M~, SSN ~

DATE: May 26, 1988


New Mexico — In this case New Mexico would apply California law with regard to the issue of the parent-child relationship. The California Civil Code states that a man is presumed to be the natural father of a child if he receives the child into his home and openly holds out the child as his natural child. Then the child is entitled to child's insurance benefits.


This memorandum is in response to your request for our legal opinion regarding whether, Armando J. M~ would be entitled to child's insurance benefits based on the account of J. Ralph M~. In brief, our opinion is that the child is entitled to child's insurance benefits under the relevant law.

The deceased wage earner (DWE), Juan M~, and Helen D~, Armando's mother, lived together in New Mexico from February to August 1975. The two then moved to California and lived with Ms. D~ sister. [1] Armando was born on November 16, 1975. The three continued to reside together until February 1976 when the DWE returned to New Mexico.

The child carries the DWE's surname, and the DWE is named as the child's father on the birth certificate.. Several people submitted written statements that the DWE held himself out as Armando's father. The DWE's ex-wife Florise M~ made a statement against interest [2] that Armando was the DWE's child.

The Social Security Act makes the payability of child's insurance benefits dependent on whether a party would be able to claim in intestate succession in a proceeding in the state where the deceased wage earner was domiciled. 42 U.S.C. §416(h)(2)(A); 20 C.F.R. §§404.354 and 404.355 (1987). Because Juan M~ was domiciled in New Mexico when he died, the proper consideration is whether Armando would inherit under the law of intestate succession as applied by the New Mexico courts. In our opinion, the New Mexico courts would follow California law for determining Armando M~ status as the DWE's child.

The Second Restatement of the Conflict of Laws states: (1) Whether a child is legitimate is determined by the local law of the state which, with respect to the particular issue, has the most significant relationship to the child and the parent under the principles stated in _6.

(2) The child will usually be held legitimate if this would be his status under the local law of the state where either (a) the parent was domiciled when the child's status of legitimacy is claimed to have been created or (b) the child was domiciled when the parent acknowledged the child as his own.

Restatement (Second) of Conflict of Laws §287 (1971). The New Mexico Supreme Court has adopted the "most closely related" test with regard to the status of a child based on domicile. Montoya v. Collier, 512 P.2d 684 (N.M. .1973). In the Montoya case the New Mexico Court followed the Restatement position on custody and guardianship of a child, which leads us to conclude the Court would follow the Restatement view here.

In one paternity case, the New Mexico Court cited to a Washington case for the proposition that paternity is a fact to be proved as any other fact, i.e., by a preponderance of the evidence. State ex tel. Human Services Dept. v. Coleman, 723 P.2d 971, 975 (N.M. App. 1986) (citing Matter of Estate of Cook, 598 P.2d 1076 (Wash. App. 1985)). The Washington case on which the New Mexico court relied also held that paternity (legitimacy) is a status issue for conflicts of law purposes and that determinations of personal status are governed under the local law under which the status was created. Id. Thus, we believe that New Mexico would apply California law in the situation presently posed to us where the child was born and his putative "legitimation" occurred in California, and the mother and child continue to reside there.

Next, we turn to California law to determine whether Armando would be considered the DWE's child for inheritance purposes under that state's law. The California Probate Code states in pertinent part: (a) A relationship of parent and child is established for the purpose of determining intestate succession by, through, or from a person in the following circumstances:

(1) . . the relationship of parent and child exists between a person and his or her natural parents, regardless of the marital status of the natural parents.

(c) For the purpose of determining whether a person is a "natural parent" as that term is used [in this section]:

(1) A natural parent and child relationship is established where that relationship is presumed and not rebutted pursuant to the Uniform Parentage Act, Part 7 (commencing with §7000) of Division 4 of the Civil Code.

CAL. PROB. C.A. §6408 (Deering 1984). California Civil Code §7004 (California Uniform Parentage Act) states that a man is presumed to be the natural father of a child if "[hie receives the child into his home and openly holds out the child as his natural child."

Prior to the adoption of the Uniform Parentage Act, legislation and case law in this field were concerned with establishing the status of legitimacy, from which status various rights flowed. The new Act, however, abolished the concept of legitimacy and substituted, as the basis for determining those rights, the concept of parentage. In re Adoption of Marie R., 79 Cal. App. 3d 624, 145 Cal. Rptr. 122 (Cal. Ct. App. 1978). Former §230 of the California Civil Code contained language similar in part to the relevant section of the current Uniform Parentage Act, and read:

The father of an illegitimate child by publicly acknowledging it as his own, receiving it as such into his family, and otherwise treating it as if it were a legitimate child, thereby adopts it as such; and such child is there upon deemed for all purposes legitimate from the time of its birth ....

Because former §230 presupposed paternity whereas §7004 of the current Civil Code is used to show paternity, the cases interpreting former §230 are not conclusive but are at least persuasive in the present circumstance where, if the DWE is not presumed to be Armando's father, he may have no father under the law.

The cases under old §230 (and prior cases using common law principles) support a finding that the DWE was Armando's father. Public acknowledgment is usually found where the father has held the child out as his own to his relatives, friends, acquaintances, or the world. In re Richard M., 14 Cal. 3d 783 (Cal. 1975). "Receiving" the child has been found where the child resides with the father, even for a brief period where the father admits his paternity. Hurst v. Hurst, 227 Cal. App. 2d 859 (Cal. Ct. App. 1964). In Lavell v. Adoption Institute, 185 Cal. App. 2d 557 (Cal. Ct. App. 1960), an admitted natural father had lived with the mother during conception, and had openly acknowledged that the expected child was his. In re Richard M., supra, the natural father and the mother had lived together for two weeks after the birth of the child and, thereafter, the child had visited the natural father for weekends and, occasionally, for longer periods.

Applying these principles to the present facts, California law would support a finding of a parent-child relationship between the DWE and Armando M~. [3] The DWE and Armando's mother lived together at or about the time of the conception through birth and for several months thereafter. Before and after the birth the DWE acknowledged he was the child's father. These facts support a finding of a parent-child relationship under Civil Code §7004.

In sum, our opinion is that New Mexico would apply California law with regard to the issue of the parent-child relationship and that California law indicates that such a relationship existed between the DWE and Armando M~



There is conflicting evidence about whether the DWE lived with Ms. D~ from September through Armando's birth, but the DWE himself consistently indicated that ,he worked in California throughout the period.


Florise M~ statement was against interest because she and the DWE had a daughter who was an offspring of their marriage who is currently receiving survivor's benefits. If Armando is granted benefits, the daughter's benefits will be reduced.


We have also conferred with Region IX OGC staff, who concurred with our opinion that California and Ninth Circuit law would mandate a finding that the DWE was Armando's presumed father for purposes of inheritance.

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PR 01110.034 - New Mexico - 02/13/2002
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