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.  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  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
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~.  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~