You have asked for an opinion on two issues. First you ask whether Milen O~ B~s oral
acknowledgments of paternity to his relatives was sufficient to establish paternity
of a posthumous child, Sharlyee P. P~ under Montana law. Assuming Milen O~ B~'s acknowledgments
were sufficient to establish paternity, you then ask whether the statements of Toy
P~'s and Milen's relatives dated in February 2000 regarding his oral acknowledgments
would have only prospective effect under Montana law.
We believe you could determine, based upon a preponderance of the evidence, that Milen
O~ B~ was the father of Sharlyee P. P~. We also believe that you could apply such
a finding retrospectively to the child's birth.
Section 202(d)(1) of the Act, 42 U.S.C. § 402(d)(1), provides that "(e)very child
(as defined in § 216(e)) of an individual . . . who dies . . . if such child" meets
the eligibility criteria for child's insurance benefits listed in 42 U.S.C. § 402(d)(1)(A),
(B), and (C) "shall be entitled to a child's insurance benefit." Section 216(h)(2)(A)
of the Act, 42 U.S.C. § 416(e), provides that "[t]he term 'child' means (1) the child
of an individual . . . ." Section 216(h)(2)(A) of the Act, 42 U.S.C. § 416(h)(2)(A)
provides in determining whether an applicant is the child . . . of a fully . . . insured
individual for purposes of this title, the Commissioner of Social Security shall apply
such law as would be applied in determining the devolution of intestate property by
the courts of the State in which such insured individual . . . was domiciled at the
time of his death . Applicants who according to such law would have the same status
relative to taking intestate personal property as a child or parent shall be deemed
42 U.S.C. § 416(h)(2)(A).
Montana State law provides for presumptions of paternity in cases where the individual
and the child's natural mother marry or attempt to marry within certain time periods
surrounding the child's birth (see MONT. CODE ANN. § 40-6-105(1)(a), (b), and (c) (1999); the individual receives the
minor child into his home and openly represents the child to be his natural child
(see id. § 40-6-105(1)(d)); the child's mother and the individual acknowledge the individual's
paternity of the child in a paternity acknowledgment form provided by the department
of public health and human services (see id. § 40-6-105(1)(e)); scientific evidence resulting from a blood test shows a 95% or
higher statistical probability of paternity (see id. § 40-6-105(1)(f)); or the individual is presumed to be the child's natural father
under the laws of the State or Indian territory in which the child was born (see id. § 40-6-105(1)(g)).
Montana law provides that, except for presumptions that are conclusive or irrebuttable,
a presumption of paternity may be rebutted "in an appropriate action by a preponderance
of the evidence." MONT. CODE ANN. § 40-6-105(3)(a) (1999) (emphasis added); see also In re the Marriage of K.E.V., 883 P.2d 1246, 1250 (Mont. 1994). In general, in Montana civil cases disputed issues
must be proved by a preponderance of the evidence. See MONT. CODE ANN. § 26-1-403 (1999).
An action to determine the existence of the father and child relationship with respect
to a child who has no presumed father . . . may be brought by the child, the mother
or personal representative of the child, the department of social and rehabilitation
services or its appropriate local affiliate, the personal representative or a parent
of the mother if the mother has died, a man alleged or alleging himself to be the
father, or the personal representative or a parent of the alleged father if the alleged
father has died or is a minor.
See id. § 40-6-107 (emphasis added); see also id. § 40-6-108; Borchers v. McCarter, 92 P.2d 941, 945 (Mont. 1979).
Evidence relating to paternity may include:
(1) evidence of sexual intercourse between the mother and alleged father at any possible
time of conception; (2) an expert's opinion concerning the statistical probability
. . . ; (3) blood test results . . .; (4) medical or anthropological evidence . .
. based on tests performed by experts . . .; and (5) all other evidence relevant to
the issue of paternity of the child.
MONT. CODE ANN. § 40-6-113 (1999).
Milen O~ B~ (Milen) was born on November 14, 1974. Milen was in the military and/or
active Reserves/National Guard from May 1, 1993 through May 1, 1997.
Toy P~ (Toy) maintained she and Milen began dating and in or about August 1998, and
dated exclusively. On or about December 1998, Toy and Milen told Milen's sister, Donna
R~, that Toy was pregnant with Milen's child (see Ms. R~' February 14, 2000 Affidavit). Milen died on January 1, 1999. Toy gave birth
to Sharlyee P. P~ (Sharlyee) seven months later on August 7, 1999.
Toy applied for lump sum and child's social security benefits based on Milen's earnings
record, on Sharlyee's behalf in February 2000. She stated she had become pregnant
one month prior to Milen's death; she and Milen did not consider themselves married;
Milen had not supported her at the time of his death; he had not contributed to her
support or taken her to doctor's appointments; he knew Toy was pregnant; and he never
acknowledged Sharlyee in writing.
On February 11, 2000, Jennie P~, Toy's grandmother, attested that Milen had told her
Toy "was going to be the mother of his baby." On February 15, 2000, Geraldine F~,
Milen's mother, attested that Milen had told her before he died that Toy was pregnant
by him and that he had considered seeking employment to help Toy. Ms. F~ stated that
Sharlyee looked like Milen.
Section 216(h)(2)(A) of the Social Security Act permits the Social Security Administration
(SSA), when determining an applicant's status as the child of an insured individual,
to apply "such law as would be applied in determining the devolution of intestate
personal property by the courts" of a particular State. Actions Related to Child Relationship
Determinations that the Social Security Administration Can Perform, OGC SSD, Chief
RSD (Fritz) to ORSISSD, October 13, 1993. The Office of General Counsel "has consistently
read section 216(h)(2)(A) to provide legal support for the Agency's longstanding interpretation
of the Act that . . . SSA may consider a child's paternity as if it were the appropriate
State court sitting with the child's intestacy claim before it." Id.
Most of the presumptions of paternity in Montana law do not apply to Milen's alleged
paternity of Sharlyee. Specifically, Toy and Milen never married or attempted to marry;
Milen died prior to Sharlyee's birth and never received her into his home; Toy and
Milen never acknowledged his paternity on a paternity acknowledgment form; and apparently,
no scientific evidence exists regarding Milen's alleged paternity of Sharlyee. See MONT. CODE ANN. § 40-6-105(1)(a)-(f) (1999). Thus, Milen is not presumed to be Sharlyee's
father under the laws of the State of Montana (MONT. CODE ANN. § 40-6-105(a)-(f)).
There is a possibility that Milen could be presumed to be Sharlyee's natural father
under the laws of the Indian territory in which Sharlyee was born (Sharlyee apparently
was born in Crow Agency, on the Crow Indian Reservation). See id. § 40-6-105(1)(g). Therefore, we request further development before we can issue an
opinion on this issue, including: Sharlyee's birth certificate; any tribal registration
documentation concerning Sharlyee's heritage; and any Crow Indian tribal laws, or
any other applicable tribal laws, concerning paternity. We will be pleased to consider
this matter further when we receive the requested information
Certainly, under Montana law a civil action could be brought to determine the existence
of the father and child relationship. See id. § 40-6-107. As discussed above, the relationship could be proved by a preponderance
of the evidence. See id. §§ 26-1-403, 40-6-105(3)(a); In re the Marriage of K.E.V., 883 P.2d 1246, 1250 (Mont. 1994).
The evidence relating to alleged paternity may include "all other evidence relevant
to the issue of paternity of the child." Id. § 40-6-113. The statements from Toy, Ms. F~, Ms. R~, and Ms. P~ comprise "evidence
relevant to the issue of [Milen's] paternity" of Sharlyee. Thus, SSA, considering
Sharlyee's "paternity as if it were the appropriate State court sitting with the child's
intestacy claim before it" (see Memorandum, Actions Related to Child Relationship Determinations . . .) could reasonably
weigh this evidence and reasonably find that a preponderance of the evidence supported
the conclusion that Milen was Sharlyee's father.
If the Agency finds Milen to be Sharlyee's father, you ask whether a paternity determination
could be retroactive to the date of Sharlyee's birth. Significantly, the Montana legislature
intended for the findings under the Parentage Act and intestacy statutes to be used
retroactively at least back to the date of a natural parent's death for purposes of
asserting inheritance rights. See MONT. CODE ANN. § 40-6-108(5) (1999) ("Section 40-6-107 and this section do not intend
the time within which a right of inheritance or a right to succession may be asserted
beyond the time provided by law relating to distribution and closing of decedents'
estates or to determine heirship or otherwise"); Id. § 72-2-118 (regarding an after born heir's right to inherit through intestate succession,
"an individual in gestation at a particular time is treated as living at that time
if the individual lives 120 hours or more after birth").
Additionally, the Montana Parentage Act specifies that a "court may limit the father's
liability for past support of the child." MONT. CODE ANN § 40-6-116 (bolding added).
Additionally, "the father's liability for a statutory debt created by the payment
of public assistance is limited to the amount of assistance paid during the 2-year
period preceding commencement of the action to declare the existence of the father."
Id. § 40-6-108(4) (bolding added). Here again, the Montana legislature showed its intent
that the findings under the Parentage Act be used retroactively for the collection
of previously accrued financial obligations.
Additionally, the Montana Department of Public Health and Human Services may, and
if requested by a parent or if court ordered, must, after the establishment of paternity,
prepare an amended or substitute birth certificate. See id. §§ 40-5-234(4), 40-5-235(2); see also id. §§ 40-6-116(2), 40-6-123. This certificate must be consistent with the paternity
findings under the Parentage Act and "the fact that the father child relationship
was declared after the child's birth may not be ascertainable from the new certificate."
Id. § 40-6-123 (bolding added).
Thus, the Montana statutes treat a court order regarding paternity as applying retroactively
to the date of the child's birth. We believe that you, considering Sharlyee's paternity
as if you were the appropriate State court sitting with the child's intestacy claim
before you, may do so as well.