On December 20, 2007, you requested our opinion as to whether a parent-child relationship
exists between Stephen ("the Number Holder) and the minor claimant, Maurice ("the
claimant"). You also asked whether we would look to the law of the District of Columbia
pursuant to 20 C.F.R. § 404.355(b)(1) in establishing whether a parent-child relationship
exists. If a parent-child relationship can be established, you also asked for the
effective date of that relationship and whether retroactive benefits should be paid.
Based upon our review of the facts of this case, the relevant federal statutes addressing
choice of law when an insured is not a domicile of any State, our research of the
law of the District of Columbia and the relevant Jamaican statutes, and the opinion
we have obtained from the Law Library of Congress, we have determined that the claimant's
mother has not presented evidence sufficient to establish paternity of the Number
Holder under applicable Jamaican or federal law.
According to the information you provided, the Number Holder was a resident of Kingston,
Jamaica, and died there on August XX, 2005.
The claimant was born on May, in New York, New York. The claimant's birth certificate
lists his mother's name as Veronica. It does not include the name of his father. The
claimant's mother and the Number Holder were not married and the Number Holder did
not live in the same household as the claimant.
An application for a social security number completed on July XX, 1992, indicates
that the Number Holder is the claimant's father. On another application for a social
security number completed on August XX, 1992, information concerning the father's
name was "withheld" by what you refer to as "the City".
On October XX, 2005, two months after the Number Holder's death, Veronica filed an
application on the claimant's behalf for surviving child's benefits and the lump sum
death benefit on the Number Holder's account.
Veronica submitted an unsworn statement dated October 26, 2005, from the deceased
Number Holder's mother. This statement was provided for the use of SSA in support
of the application for surviving child's benefits. The Number Holder's mother stated
that the Number Holder was in the United States when the child was born, knew that
the child's mother was pregnant, and lived in the United States until approximately
1998, when he returned to Jamaica. The Number Holder's mother also stated that the
child's mother brought the child to see the Number Holder and others in the family,
and that the Number Holder acknowledged in her presence and before other family members
(lists six individuals, including the Number Holder's sister who also provided a statement)
that the child was his son.
Veronica also submitted an unsworn statement dated October 27, 2005, from the deceased
Number Holder's sister. This statement was provided for the use of SSA in support
of the application for surviving child's benefits. The Number Holder's sister stated
that the Number Holder lived in the United States, but did not provide requested information
as to the date the Number Holder left the United States. The Number Holder's sister
also stated that the Number Holder returned to Jamaica before the child was born but
knew that the child's mother was pregnant. The Number Holder's sister also stated
that when the Number Holder was visiting in the United States, the child's mother
brought the child to see the Number Holder and others in the family, and that the
Number Holder acknowledged in her presence and before other family members (lists
seven individuals, including the Number Holder's mother) that the child was his son.
No written statements made by the father prior to his death naming the claimant as
his child were produced or found. Nor has any court in any U.S. jurisdiction issued
an order determining that the claimant was the Number Holder's child.
The Social Security Act provides that a child born out of wedlock can qualify for
benefits if the child is entitled to inherit personal property under "such law as
would be applied in determining the devolution of intestate personal property by the
courts of the State in which [the] insured individual . . . [was] domiciled at the
time of his death, or, if [the] insured individual . . . was not so domiciled in any
State, by the courts of the District of Columbia." 42 U.S.C. § 416(h)(2)(A); 20 C.F.R.
§ 404.355(b)(1),(4). The Act also provides an alternative method for such a child
to qualify for benefits under the earnings record of a worker who is deceased. 42
U.S.C. § 416(h)(3)(C). Section 416(h)(3)(C) provides that a claimant may prove that
he is the child of the worker if the insured, before his death, acknowledged paternity
in writing, was decreed the child's father by a court, was ordered to contribute to
the support of the child by a court, or the insured is shown by "satisfactory" evidence
to have been the father of the child "and" was living with or contributing to the
support of the child at the time of the insured's death.
According to your request, Stephen, the Number Holder, was domiciled in Kingston,
Jamaica at the time of his death. The District of Columbia applies the law of the
domicile of the decedent to determine intestate succession. Javier v. Commissioner of Social Sec., 407 F.3d 1244, 1247 (D.C. Cir. 2005); In re G~'s Estate, 168 F.Supp. 124, 126 (D.D.C. 1958); (finding "no local cases on . . . point" but
adopting the "rule that the law of the domicile of decedent governs distribution of
personal property . . . ."); Gonzalez v. Hobby, 110 F.Supp. 893, 897 (D.P.R. 1953), aff'd 213 F.2d. 68 (1st Cir. 1954) (in determining devolution of intestate personal property
for the purposes of claimant's application for child's benefits under the Social Security
Act, claimant's right to benefits was not to be determined by the substantive law
of the District of Columbia, but by the substantive law of the place where the insured
father/number holder resided or was domiciled). See also Program Operations Manual System (POMS) PR 01510.010(B) (District of Columbia courts apply the substantive law of the wage earner's foreign
domicile) (citing Gonzalez v. Hobby, 110 F.Supp. 893). Because Stephen, the Number Holder, was domiciled in Jamaica at
the time of his death, the law of Jamaica applies.
Section 6 of Jamaica's Status of Children Act (Presumptions re Parenthood of Child
Born During Marriage) provides:
(1) Subject to subsections (2) and (3), a child born to a woman during her marriage,
or within ten months after the marriage has been dissolved by death or otherwise,
shall, in the absence of evidence to the contrary, be presumed to be the child of
its mother and her husband, or former husband, as the case may be.
(2) Subsection (1) shall not apply if, during the whole of the time within which the
child must have been conceived, the mother and her husband were living apart under
an oral or written agreement for separation, or under a decree or order of separation,
or decree nisi of divorce, made by a competent court or authority in Jamaica or elsewhere.
(3) Subsection (1) shall not apply where a child is born ten months after the dissolution
of the marriage of its mother by death or otherwise, and after she has married again,
and in such case there shall be no presumption as between the husband of the mother
and her former husband that either is the father of the child, and the question shall
be determined on the balance of probabilities in each case.
Laws of Jamaica - Statutes and Subsidiary Legislation (visited April 9, 2008) http://www.moj.gov.jm/law/search?lawSearch=status+of+children.
Section 7 of Jamaica's Status of Children Act (Recognition of Paternity in Cases of
Succession, etc.) provides in relevant part:
(1) The relationship of father and child . . . shall, for any purpose related to succession
to property . . . be recognized only if -
(a) the father and the mother of the child were married to each other . . . ; or
(b) paternity has been admitted by or established during the lifetime of the father
(whether by one or more of the types of evidence specified by section 8 or otherwise)
Section 8 of Jamaica's Status of Children Act (Evidence and Proof of Paternity) provides
in relevant part:
(1) If, pursuant to section 19 of the Registration (Births and Deaths) Act or to the
corresponding provisions of any former enactment, the name of the father of the child
to whom the entry relates has been entered in the register of births . . . , a certified
copy of the entry made or given in accordance with section 55 of that Act or sealed
in accordance with section 57 of said Act shall be prima facie evidence that the person named as the father is the father of the child.
(2) Any instrument signed by the mother of a child and by any person acknowledging
that he is the father of the child shall, if executed as a deed or by each of those
persons in the presence of an attorney-at-law or a Justice of the Peace or a Clerk
of the Courts or a registered medical practitioner or a minister of religion or a
marriage officer or a midwife or the headmaster of any public educational institution
as defined in the Education Act be prima facie evidence that the person named as the father is the father of the child.
(3) [Deleted](4) Subject to subsection (1) of section 7, a declaration made under
section 10 shall, for all purposes, be conclusive proof of the matters contained in
(5) An order made in any country outside Jamaica declaring a person to be the father
or putative father of a child, being an order to which this subsection applies pursuant
to subsection (6), shall be prima facie evidence that the person declared the father or putative father, as the case may be,
is the father of the child.
(6) The Minister may from time to time, by order, declare that subsection (5) applies
with respect to orders made by any court or public authority in any specified country
outside Jamaica or by any specified court or public authority in any such country.
Section (10) of Jamaica's Status of Children Act (Power of Court to Make Declaration
of Paternity) provides in relevant part
(1) Any person who -
(a) being a woman, alleges that any named person is the father of her child; or
(b) alleges that the relationship of father and child exists between himself and any
other person; or
(c) being a person having a proper interest in the result, wishes to have it determined
whether the relationship of father and child exists between two named persons, may
apply in such other manner as may be prescribed by rules of court for a declaration
of paternity, and if it is proved to the satisfaction of the Court that the relationship
exists the Court may make a declaration of paternity whether or not the father or
the child or both of them are living or dead.
(2) Where a declaration of paternity under subsection (1) is made after the death
of the father or of the child, the Court may at the same or any subsequent time make
a declaration determining, for the purposes of paragraph (b) of subsection (1) of
section 7, whether any requirements of that paragraph have been satisfied.
(4) An application may be made under subsection (1) to -
(a) the Resident Magistrate's Court for the parish in which any of the parties reside
or, as the case may be, the Family Court; or
(b) the Supreme Court.
Section (11) of Jamaica's Status of Children Act (Power of Court to Require Use of
Blood Tests) provides in relevant part:
(1) In any civil proceedings in which the paternity of any person (hereinafter referred
to as "the subject") falls to be determined by the court hearing the proceedings,
the court may, on an application by any party to the proceedings, give a direction
for the use of blood tests to ascertain whether such tests show that a party to the
proceedings is or is not thereby excluded from being the father of the subject . .
In this case, none of the specific provisions for establishing paternity under Jamaica's
Status of Children Act have been met. There is no evidence of a marriage between the
Number Holder and the claimant's mother, or of an entry in Jamaica's register of births
naming the Number Holder as the father of the claimant. Nor is there evidence that
the Number Holder signed an instrument acknowledging that he was the father of the
claimant, that any court or public authority in any country outside Jamaica declared
the Number Holder to be the father of the claimant, that a Jamaican court made a declaration
of paternity, or that blood tests were ordered in connection with a civil proceeding.
Because Section 7(1)(b) provides that the relationship of father and child may be
established if "paternity has been admitted by or established during the lifetime
of the father (whether by one or more of the types of evidence specified by section
8 or otherwise), and because we do not have access to Jamaican case law, we asked
the Law Library of Congress (LOC) for an interpretation as to whether the hearsay
statements provided by the Number Holder's relatives would be sufficient to establish
paternity pursuant to the "or otherwise" language of Section 7(1)(b). We also asked
the LOC to provide us with information concerning the burden/standard of proof for
establishing paternity under Jamaican law.
In response to our request, the LOC advised that there are only two cases in the Jamaica
Law Reports that address the issue of establishment of paternity, and that neither
case has to do with the interpretation of the phrase "or otherwise" in section 7(1)(b).
The LOC further advised that in Jamaica, the courts generally look to English precedent
for guidance when there is no applicable domestic case law. While noting that English
precedent cannot supply an interpretation of the phrase "or otherwise" within the
meaning of the Status of Children Act, the LOC advised that the principle of ejusdem generis (of the same kind, a canon of interpretation to the effect that where general words follow an enumeration
of particulars, the general words are understood as limited to general categories
of the same kind as the particulars) has been recognized in English case law. See also Norfolk and Western Railway Company v. American Train Dispatchers' Association, 499 U.S. 117, 129 (1991) ("under the principle of ejusdem generis, when a general term follows a specific one, the general term should be understood
as a reference to subjects akin to the one with specific enumeration").
Applying the principle of ejusdem generis to Section 8 of the Status of Children Act, the LOC concluded that "section 8 does
not provide that paternity can be proved through the evidence of third parties." As
noted above, the particular categories of evidence for establishing paternity under
Section 8 require some type of formal documentation (an entry in the register of births,
a signed statement or a court order), not the type of evidence provided in this case
in the form of unsworn third party hearsay statements.
This analysis is also consistent with information provided on the Jamaican government's
website. According to the website, the child of a deceased individual who needs to
prove paternity must submit to the AGD (Attorney General's Department) a certified
copy of the Birth Certificate. If the father's name is endorsed thereon, this is sufficient
proof of paternity. When the father's name is not on the Birth Certificate, the following
are means of proof of paternity.
1. A form filled in by both parents establishing paternity and signed in the presence
of a Justice of the Peace, Clerk of the Court, Registered Medical Practitioner, Minister
of Religion, Marriage Officer or Midwife; or
2. An Affiliation Order made in any Court; or
3. Declaration of Paternity made by the Family Court of Supreme Court (for the purpose
of succession, the Declaration should state that paternity was established during
the lifetime of the father).
Frequently Asked Questions - The Administrator General's Department (visited April 9, 2008) http://www.moj.gov.jm/admingen/faqs
Furthermore, although the LOC was unable to offer any guidance with respect to the
burden/standard of proof for establishing paternity under Jamaican law, we note that
the Status of Children Act recognizes (1) a presumption of parenthood or paternity,
subject to certain exceptions (2) prima facie evidence of paternity; and (3) a balance of probabilities test for proof of paternity
in certain instances. As noted above, the facts of this case do not establish a presumption
of paternity or prima facie evidence of paternity as contemplated under the Status of Children Act. We note, however,
that the English standard of "balance of probabilities" appears to be the same as
the preponderance of the evidence standard. Cooper v. Oklahoma, 517 U.S. 348, 358 (1996). A preponderance of the evidence means to exceed in weight.
Blystone v. Pennsylvania, 494 U.S. 299, 312 n.3 (1990).
Based upon the limited evidence that has been presented here in the form of two somewhat
conflicting unsworn hearsay statements provided in 2005, more than thirteen years
after the claimant's birth, for the purpose of obtaining social security benefits,
as well as the absence of a father's name on the claimant's birth certificate, the
absence of any written documentation from the Number Holder, including his signature
on the application for a social security number indicating that he was the claimant's
father, the absence of any information indicating that the Number Holder provided
support for the claimant at any time since the date of his birth in 1992, and the
absence of a court order from Jamaica or any United States jurisdiction determining
that the claimant was the Number Holder's child, we believe that a reviewing court
in Jamaica would find that the claimant would not be able to prove under the balance
of probabilities standard that the Number Holder was his father.
Under the alternative method provided for by the Act at 42 U.S.C. § 416(h)(3)(C),
Veronica also failed to meet the federal statutory requirements. Specifically, she
failed to show that the Number Holder acknowledged paternity in writing before his
death, was decreed the claimant's father by a court, or was ordered to contribute
to the support of the claimant by a court. Veronica also failed to show "satisfactory"
evidence that the Number Holder was the claimant's father "and" that he was living
with or contributing to the support of the claimant at the time of his death.
In summary, Veronica has failed to prove that paternity was established pursuant to
Jamaican law, or the Social Security Act.
Based on the evidence presented in this case, it is our opinion that the unsworn hearsay
statements submitted by Veronica are insufficient to establish the paternity of Stephen
under Jamaican law or under the alternative method provided for by federal law. Consequently,
the claimant is not eligible for surviving child's benefits under 42 U.S.C. § 416(h).
Very truly yours,
Michael Mc MGaughran
Regional Chief Counsel
By: Beverly H. Zuckerman
Assistant Regional Counsel