TN 1 (01-06)

PR 01110.047 Tennessee

A. PR 04-342 Arkansas State Law - Establishment of Paternity Based Upon Birth Certificate, NH Maurice J~, SSN ~ - REPLY

DATE: September 23, 2004

1. SYLLABUS

In a case where the number holder was domiciled in Tennessee at the time of his death, but the birth certificate submitted to establish a relationship between the claimant and that number holder was issued in another state in which the claimant was still domiciled, Tennessee courts would defer to that other state's law under the doctrine of "most significant relationship".

In Arkansas, a claimant's birth certificate showing the deceased number holder as the father is not sufficient to establish acknowledgement of paternity without evidence that the number holder provided written consent for his name to be placed on the birth certificate as required by state law.

2. OPINION

The purpose of this memorandum is to respond to your request for a legal opinion regarding whether an Arkansas birth certificate listing the putative father's name is sufficient to establish evidence of paternity, absent written consent of the purported father to have his name to appear on the certificate as required by State law. According to information supplied with your request for an opinion, the number holder Maurice J~ died on August 29, 2003, while domiciled in Tennessee. Three days prior to his death, on August 26, 2003, Mr. J~ filed a claim for disability insurance benefits under Title II of the Social Security Act (the Act). 42 U.S.C. § 423(d)(1)(A). On that disability claim, Mr. J~ acknowledged Demarcus Young as his only child. On September 22, 2003, a claim for child's insurance benefits under the Act was filed on behalf of Heaveney L. J~ on Mr. J~' earning's record. According to a certified copy of the Arkansas birth certificate, Heaveney was born in West Memphis, Arkansas, on November 4, 2001. The birth certificate lists Evette S. G~ (H~) as the child's mother, and Mr. J~ as the child's father. Ms. G~ and Mr. J~ never married.

Your request for an opinion states that the Arkansas birth certificate was the only evidence submitted to establish the child relationship. Apparently the claim was initially allowed. However, you have now requested a legal opinion given the fact that the Arkansas birth certificate does not list whether Mr. J~ gave his written consent to have his name placed on the birth certificate as Heaveney's father. Based upon the reasons discussed herein, it is our opinion that no evidence has been provided with your request for a legal opinion demonstrating that Mr. J~ gave his written consent to place his name on Heaveney's birth certificate as the putative father as required by State law. Therefore, the fact that Mr. J~' name appears on the birth certificate cannot by itself serve as written acknowledgement of paternity.

To be considered the insured person's natural child for purposes of entitlement to Social Security benefits under section 216(h)(2) of the Act one of the following conditions must be met: (1) the child would be entitled to inherit through intestate succession under the laws of the state in which the insured person was domiciled when he died; or (2) the parents of the child went through a marriage ceremony which did not create a valid marriage because of a legal impediment. 42 U.S.C. § 416(h)(2)(A) and (B). However, an applicant who is not deemed to be the child of the insured under section 216(h)(2) of the Act shall nevertheless be deemed to be the child of the insured under section 216(h)(3) of the Act if: (1) prior to the death of the insured individual, he acknowledged the child in writing, had been decreed by a court to be the father of the child, or had been ordered to contribute to the support of the child because of paternity; or (2) the insured person is shown by satisfactory evidence to be the father of the child and was living with the child or contributing to the child's support at the time such insured individual died. 42 U.S.C. §§ 416(h)(3)(C)(i) and (ii).

If the insured is deceased, the Social Security Administration will apply the law on inheritance rights in the state where the insured individual had his permanent home when he died. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. §§ 404.355(b)(1) and (b)(4) (2004). In this case, the evidence indicates that the deceased number holder was domiciled in Tennessee; therefore, Tennessee intestacy law would normally apply. Id. However, on July 29, 2004, the Regional Office of the General Counsel in Atlanta issued a legal opinion where they concluded that under the "most significant relationship" doctrine, Tennessee courts would determine that the birth status of Heaveney, and whether Mr. J~' name was properly placed on the birth certificate, would be governed by Arkansas State law since both Mr. J~ and Ms. G~ were living in Arkansas at the time of Heaveney's birth.

As our Office has previously concluded that, since February 19, 1981, under Arkansas law, if the mother was not married at the time of conception or birth, or anytime between conception and birth, the name of the father shall not be entered on the birth certificate without written consent of the mother and the person to be named as the father. See OGC legal opinion No. 99-163, entitled "Establishing Precedents for Using Information from Child's Birth Certificate as Written Acknowledgment or Proof of Court Order of Paternity," dated November 20, 2000 (reviewing prior Ark. Code Ann. § 20-18-401(e)(2)(1981) and Ark. Code Ann. § 20-18-401(f)(2) (Repl. 2000)). Additionally, we also stated that in any case where the paternity of the child is determined by a court of competent jurisdiction, the name of the father shall be entered on the birth certificate in accordance with the findings and order of the court. Id. A review of the relevant statute at issue shows no major changes from our prior November 2000 opinion./

The method to obtain consent of the mother and putative father is governed through the use of paternity affidavits. See Ark. Code Ann. § 20-18-408 (current through the end of the 2003 Second Extraordinary Sess). Under this statute, "[u]pon the birth of a child to a woman that was unmarried at the time of either conception or birth or between conception and birth, the person responsible under § 20-18-401 for providing birth registration information shall . . . provide an opportunity for the child's mother and natural father to complete an affidavit acknowledging paternity, to include such information as is required by the court to establish paternity and establish child support obligation, and to be filed with the Division of Vital Records of the Department of Health." Ark. Code Ann. § 20-18-408(1). However, prior to signing the affidavit, the mother and natural father must be provided written information explaining the implications of signing the affidavit and their resulting parental rights and responsibilities. Ark. Code Ann. § 20-18-408(2).

Our Office could only find one case which discussed the relevant Arkansas statutory section at issue. In 2001, the Arkansas Court of Appeals reversed a Chancery Court's decision to amended a divorce decree entered 14 months prior to reflect, in part, that the appellant was not the child's biological father when paternity was not even at issue in the original divorce proceeding. See Slusher v. Slusher, 73 Ark.App. 303, 306-07, 43 S.W.3d 189, 191-92 (Ark.Ct.App. 2001). While the court reversed the case primarily because the lower court had amended the judgment outside of the permissible time period specified under the Arkansas rules of civil procedure; nevertheless, in a concurring opinion the honorable Judge Neal stated that:

In this state, if the mother of a child is not married at the time of either conception or birth, the name of the father is not to be entered on the child's birth certificate unless the mother and the putative father sign an affidavit of paternity. [citing to Ark. Code Ann. § 20-18-401(f)(2)]. Prior to signing the affidavit, the mother and natural father are given written information explaining the implications of signing the affidavit and their resulting parental rights and responsibilities. [citing to Ark. Code Ann. 20-18-408(2)]. Once the mother and the putative father execute an acknowledgement of paternity pursuant to section 20-18-408, the man executing the document is the father of the child for all intents and purposes and the acknowledgements, by operation of law, constitute a conclusive finding of paternity. Id.

Applying these principles to the facts of this case, it is our opinion that the proper State law procedure for placing Mr. J~' name on the birth certificate was not followed. Since Heaveney was born in Crittenden Memorial Hospital, it was the responsibility of hospital personnel to obtain the required consent through a paternity affidavit from both the mother and putative father before placing Mr. J~' name on the birth certificate. See Ark. Code Ann. §§ 20-18-401(b), 20-18-408. While State law provides that both the paternity affidavit and birth certificate are to be filed with the Division of Vital Records of the Department of Health, it seems likely that Crittenden Hospital personnel would have also kept a copy of such existing documentation. Id. However, no documentation supporting the existence of the paternity affidavit, thus establishing the putative father's consent to have his name placed on the birth certificate, has been provided. Therefore, the fact that Mr. J~' name appears on the birth certificate cannot by itself serve as written acknowledgement of paternity.

Tina M. W~
Regional Chief Counsel
By:____________________
Thomas C. S~
Assistant Regional Counsel


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PR 01110.047 - Tennessee - 01/31/2006
Batch run: 01/27/2009
Rev:01/31/2006