TN 42 (01-16)

PR 01115.033 New Jersey

A. PR 16-013 T~ and S~– Eligibility for Children’s Benefits Based on the Record of the NH Who Is the Same-Sex Civil Union Partner of the Claimants’ Birth Mother – New Jersey

Date: October 26, 2015

1. Syllabus

The NH and L~ entered into a Civil Union in New Jersey on August XX, 2007 and the Claimants were born in November 2007 in Princeton, New Jersey. Their birth certificates list L~ as the mother and the NH as a parent.

For the purposes of establishing a parent-child relationship in intestacy proceedings, we look the New Jersey Parentage Act (NJPA) that guides New Jersey courts. In February 2007, New Jersey enacted a civil union law with the intention of providing same sex couples with all the rights and benefits that married couples enjoy. The New Jersey Civil Union Act (NJCUA) specifically provides that the rights of civil union couples, with respect to the child of whom either becomes the parent during the term of the civil union, shall be the same as those of a married couple with respect to a child of whom either spouse or partner in a civil union couple becomes the parent during the marriage.

In this case, the NH clearly consented to L~ conceiving the Claimants and to L~ giving birth to the Claimants. The NH is listed as the second parent on the Claimants’ birth certificates. The Claimants and the NH have lived together since the Claimants were born. The Claimants, their biological mother, and the NH all agree that the NH is the Claimants’ parent. It is our opinion that under the intestacy laws of the New Jersey, the Claimants could inherit property from the NH as her children. Thus, if the Claimants meet other eligibility requirements, they would be entitled to child’s benefits as the children of the NH.

2. Opinion

QUESTION PRESENTED

Whether T~ and S~ (the Claimants), the biological children of L~, are entitled to child’s benefits on the record of L~s same-sex civil union partner, C~, the Number Holder (NH).

OPINION

It is our opinion that under the intestacy laws of New Jersey, the Claimants could inherit property from the NH as her children. Thus, if the Claimants meet other eligibility requirements, they would be entitled to child’s benefits as the children of the NH.

BACKGROUND

The NH and L~ are long-time partners, who have been domiciled in New Jersey since at least 1988. According to the NH, they entered into a domestic partnership in July 2004. L~ conceived the Claimants in March 2007 through in vitro fertilization (IVF), using sperm from an anonymous donor at a California sperm bank. The NH supported L~’s decision to conceive via IVF, and was a payment guarantor for the IVF procedure and paid for the frozen donor sperm. The NH and L~ entered into a Civil Union in New Jersey on August XX, 2007. The Claimants were born on November XX, 20XX in Princeton, New Jersey. Their birth certificates list L~ as the mother and the NH as a parent. The NH, L~, and the Claimants have lived together since the Claimants’ birth and they all view the NH as one of the Claimants’ two mothers.

The NH filed for Social Security Disability benefits on July XX, 2012, and listed the Claimants as her minor children. The NH’s application was approved in December 2012. On June XX, 2013 the NH filed applications for the Claimants to receive auxiliary benefits on her Social Security record as her children.

ANALYSIS

For purposes of child’s benefits under the Social Security Act (Act), a “child” is defined as the child, legally adopted child, stepchild, or in limited circumstances, grandchild of an insured individual. Sections 202(d), 216(e) of the Act, 42 U.S.C. §§ 402(d), 416(e).

A. Child

Subsection (h)(2)(A) of section 216 provides that in determining whether an applicant is the child of an insured individual for purposes of the Act, the Commissioner shall first apply the law governing the devolution of intestate personal property by the courts of the state in which the insured individual is domiciled at the time the applicant files the application. Act § 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A). 1 The NH was domiciled in New Jersey when the Claimants’ applications were filed. Therefore, whether the Claimants can be considered to be the NH’s children under the Act must be determined under New Jersey intestacy law.

Under New Jersey intestacy law, in the absence of a surviving spouse or domestic partner, the decedent’s property passes to his “descendants.” N.J. Stat. Ann. § 3B:5-4(a) (West 2015). A descendant of an individual is defined as all of the individual’s “progeny of all generations, with the relationship of parent and child at each generation being determined by the definition of child contained in this section and parent contained in [N.J. Stat. Ann. § 3B:1-2].” N.J. Stat. Ann

§ 3B:1-1 (West 2015). A child is defined as the natural or adopted child, entitled to take by intestate succession from the parent whose relationship is involved, to the exclusion of stepchildren, grandchildren, or any more remote descendants. N.J. Stat. Ann § 3B:1-1 (West 2015). A parent is defined as any person who is entitled to take a share of the estate if the child, natural or adopted, dies without a will, and it excludes stepparents and grandparents. N.J. Stat. Ann § 3B:1-2 (West 2015).

For the purposes of establishing a parent-child relationship in intestacy proceedings, the

New Jersey Parentage Act (NJPA) guides New Jersey courts. N.J. Stat. Ann. § 3B:5-10 (West 2015), see N.J. Stat. Ann. §§ 9:17-38 et seq. The NJPA defines the parent and child relationship as the “legal relationship existing between a child and the child’s natural or adoptive parents, incident to which the law confers or imposes rights, privileges, duties and obligations.” N.J. Stat. Ann. § 9:17-39 (West 2015). It further states that the “parent and child relationship” includes the “mother and child relationship and the father and child relationship.” Id.

In February 2007, New Jersey enacted a civil union law with the intention of providing same sex couples with all the rights and benefits that married couples enjoy. The New Jersey Civil Union Act (NJCUA) specifically provides that “[t]he rights of civil union couples, with respect to the child of whom either becomes the parent during the term of the civil union, shall be the same as those of a married couple with respect to a child of whom either spouse or partner in a civil union couple becomes the parent during the marriage.” N.J. Stat. Ann. § 37:1-31(e) (West 2015). The NJCUA further provides that whenever any law, rule, regulation, or judicial or administrative proceeding references “marriage,” “husband,” “wife,” “spouse,” or other words connoting a specific marital relationship, the word shall include civil union partners pursuant to the provisions of the NJCUA. N. J. Stat. Ann. § 37:1-33 (West 2015). At the time the Claimants were born, the NH and L~ had entered into a civil union, and thus, any rights accorded the NH would be comparable to those of a married couple with respect to a child of whom either spouse became the parent during the marriage.2

New Jersey law does not explicitly define the term “natural” with reference to either the child or the parent. However, New Jersey courts have routinely used the term “natural” to mean “biological.” See e.g., Matter of Baby M., 537 A.2d 1227 (N.J. 1988) (case involving parental rights of three parties - child’s “natural” father, “natural” mother and wife of the “natural” father); Matter of Adoption of Two Children by H.N.R., 666 A.2d 535 (N.J. Super. A.D. 1995) (in case involving adoption of child by same-sex partner of biological mother, court used “natural” and “biological” interchangeably). Thus, we do not believe that the Claimants could be termed the “natural” children of the NH, or establish that they are the NH’s natural child under any provision requiring a biological relationship to the mother. (For example, the claimant would not qualify under the NJPA provision providing that the parent and child relationship between a child and the child’s natural mother may be established by proof of the mother having given birth to the child. N.J. Stat. Ann. 9:17-41(a)).

The NJPA also includes New Jersey’s Artificial Insemination statute. That statute states in relevant part:

If, under the supervision of a licensed physician and with the consent of her husband, a wife is inseminated artificially with semen donated by a man not her husband, the husband is treated in law as if he were the natural father of a child thereby conceived.

N.J. Stat. Ann. § 9:17-44(a).

Prior to the enactment of the NJCUA, the New Jersey Superior Court held that the artificial insemination statute could be read in a gender-neutral way so as to encompass same-sex partners. See In re Robinson, 890 A.2d 1036 (N.J. Super. Ct., Chancery Div. 2005). In Robinson, the court held that, under the artificial insemination statute, the same-sex partner of the birth-mother, who had conceived via artificial insemination, would be presumed to be the parent of that child in the same way that the husband of a birth mother who had conceived via artificial insemination would be presumed to be the father. Robinson, 890 A.2d at 1042. The court stated that an “individual seeking equal treatment under the Artificial Insemination statute must show indicia to be a spouse and to be a parent to the child.” Id. The court noted that the couple had entered into a domestic partnership under New York law and, of particular significance, had been legally married in Canada prior to the conception of the child. Robinson, 890 A.2d at 1041.

Robinson appears to remain the only New Jersey case to have addressed this narrow issue involving the parentage of a child conceived by artificial insemination within the context of a same-sex union. However, following the enactment of the NJCUA, the Appellate Division of the New Jersey Superior Court questioned the Robinson decision. In re T.J.S., 16 A.3d 386 (N.J. Super. Ct. App. Div, 2011), aff’d 54 A.3d 263 (N.J. 2012). In T.J.S., the plaintiffs were an opposite-sex couple who had a child born via a surrogate gestational carrier with the husband’s sperm and a donor egg. The court found that the NJPA provided for a declaration of maternity only to a biologically- or gestationally-related female and required adoption to render an infertile wife the legal mother of a child biologically related to the husband and an anonymous ovum donor who was born to a gestational carrier. Id. In finding that the artificial insemination statute could not be used to confer parentage in the circumstances of the T.J.S. case, the court held that Robinson did not suggest to the contrary and was not analogous to the circumstances of the T.J.S. case. T.J.S., 16 A.3d at 396, n.11. The Court noted that in Robinson, the couple

mirrored the situation articulated by the Legislature in the Artificial Insemination Statute, save for the gender of the non-gestational partner. The couple, in a relationship equivalent to marriage (citation omitted), was unable to have a child through “traditional” means. Accordingly, the gestational partner was artificially inseminated by the sperm of a donor with the consent of her partner. The resulting child was thus biologically related to the gestational partner. Most important to the present circumstances, a third-party gestational carrier, and her accompanying rights, were not involved.

T.J.S., 16 A.3d at 396, n.11. Nonetheless, the court went on to state that, in its view, the Robinson court erred by relying on a “best interest” standard in deciding the issue of parentage. And, it expressed no view as to whether the same result could have been reached by a different analysis. Id.

Further, in 2011, a superior court held that the artificial insemination statute providing for the absence of parental rights and responsibilities of a donor of semen did not apply where there was no physician involved in the insemination process. E.E. v. O.M.G.R., 20 A.3d 1171 (N.J. Sup. Ct., Chancery Div. 2011). In that case, the mother, a single woman without a partner, wished to have a child. The mother and biological father of the child conceived through a self-administered “artificial insemination” procedure. The biological father attempted to surrender his parental rights. Because the parties had not strictly complied with a provision of the artificial insemination statute, that statute did not apply to relieve the father of his rights and responsibilities under the law. E.E., 20 A.3d at 1176-77.

While neither T.J.S. nor E.E. are analogous, and, even if Robinson could still be considered to be good law, it cannot be said that the NH and L~ meet the criteria of Robinson or of the Artificial Insemination Statute. Notably, unlike the parents in Robinson, the NH and L~ had not entered into a civil union or a legal marriage at the time the Claimants were conceived. See Robinson, 890 A.2d 1041 (Same-sex couple had legally married in Canada prior to the conception of the child and “[t]he commitment [the couple] made to each other during the wedding in the foreign jurisdiction is the essence of a marriage and of the Artificial Insemination Statute in its reference to “husband’ and “wife.”); see also N.J. Stat. Ann. § 9:17-44(a) (If, under the supervision of a licensed physician and with the consent of her husband, a wife is inseminated artificially with semen donated by a man not her husband, the husband is treated in law as if he were the natural father of a child thereby conceived) (emphasis added). Consequently, even assuming the artificial insemination statute is applicable to a same-sex couple, the requirements of the artificial insemination statute are not met.

Next we turn to whether any presumptions of parentage would be applicable to New Jersey same-sex couples. As noted above, the NJCUA specifically provides that “[t]he rights of civil union couples, with respect to the child of whom either becomes the parent during the term of the civil union, shall be the same as those of a married couple with respect to a child of whom either spouse or partner in a civil union couple becomes the parent during the marriage.” N.J. Stat. Ann. § 37:1-31(e) (West 2015). Under New Jersey law, a man is presumed to be the biological father of a child if he and the child’s biological mother are married to each other and the child is born during the marriage. N.J. Stat. Ann. § 9:17-43(a)(1). (West 2015). The Court in Lewis noted that, “Every statutory provision applicable to opposite-sex couples might not be symmetrically applicable to same-sex couples. The presumption of parentage would apply differently for same-sex partners inasmuch as both partners could not be the biological parents of the child.” Lewis, 908 A.2d at 216. However, the Court went on to note that, “It appears that the presumption in such circumstances would be that the non-biological partner consented to the other partner either conceiving or giving birth to a child,” the circumstance that exists here. Lewis, 908 A.2d at 216. Further, there does not appear to be clear and convincing evidence rebutting this presumption. See N.J. Stat. Ann. § 9:17-43(b) (A presumption under this section may be rebutted in an appropriate action only by clear and convincing evidence). And finally, even if no presumptions were to apply, a New Jersey court would decide whether the parent and child relationship exists, based on a preponderance of the evidence. N.J. Stat. Ann. § 9:17-43(d). Here, the NH clearly consented to L~ conceiving the Claimants and to L~ giving birth to the Claimants. The NH is listed as the second parent on the Claimants’ birth certificates. The Claimants and the NH have lived together since the Claimants were born. The Claimants, their biological mother, and the NH all agree that the NH is the Claimants’ parent.

CONCLUSION

It is our opinion that under the intestacy laws of the New Jersey, the Claimants could inherit property from the NH as her children. Thus, if the Claimants meet other eligibility requirements, they would be entitled to child’s benefits as the children of the NH.

B. PR 15-043 A~ – Eligibility for Surviving Child’s Benefits on the Record of Deceased Number Holder, M~ – New Jersey law.

DATE: December 8, 2014

1. Syllabus

A parent-child relationship must be established in order for a child to inherit from a parent under the intestacy laws of New Jersey. In this case, a mother applied for surviving child’s benefits on behalf of her minor child and there is a question about whether the evidence submitted to support the claim is sufficient. The mother stated the child is the child of the deceased number holder (NH) although she was married and living with her husband at the time of the child’s birth (and her husband is named the father on the birth certificate).

The mother also provided DNA test results indicating a 99.99% probability that a brother of the minor child’s alleged paternal uncles is the father, and another test excluding her husband from being the biological father. However, the test results were later called into question and the RCC did not believe that a New Jersey court would find the results clear and convincing enough to overcome the presumption that the husband was not the child’s father.

The child also believed the mother’s husband to be her father and it was the husband’s desire to maintain this status as well and keep his name on the child’s birth certificate. In addition, there was no court order determining that the husband was not the child’s father or evidence to show the NH sought to be named the child’s father. Since the parent-child relationship between the NH and the minor child has not been established, the minor child is not able to inherit from the NH under New Jersey intestacy laws. Therefore, the child is not entitled to benefits under section 216(h)(2)(A) of the Social Security Act or eligible for benefits under any other provision of section 216(h) of the Act.

2. Opinion

QUESTION PRESENTED

Whether the evidence in support of the application for Surviving Child’s benefits submitted by S~ (S~) on behalf of her minor child, A~ (the minor child), is sufficient to establish the child’s relationship to the deceased number holder, M~ (the number holder).

OPINION

Because a parent-child relationship between the number holder and the minor child has not been established under New Jersey law, the minor child would not be able to inherit under the intestacy laws of New Jersey. Therefore, the child is not entitled to child’s insurance benefits under section 216(h)(2)(A) of the Social Security Act (Act). Further, the minor child does not qualify under any other provision of the Act.

BACKGROUND

S~ applied for Surviving Child’s benefits on August , 2014, on behalf of the minor child. S~ states that the minor child is the child of the number holder. The following evidence was provided in support of S~’s claim:

* A New Jersey certificate of birth, stating that the minor child was born on October XX, 2008 in Paterson City, Passaic County, and that his parents are S~ and A1~(A1~).

* A report from Laboratory Corporation of America indicating a deoxyribonucleic acid (DNA) test established a 99.99% probability that a brother of the minor child’s alleged paternal uncles, W~(W~) and A2~ (A2~), could be the biological father of the minor child. A second report indicated that DNA test results excluded A~ from being the biological father of the child.

* A New Jersey death certificate, indicating that the number holder died March, 2012, in Jersey City, New Jersey.

* A statement provided by A2~, in which he stated: “Acknowledged and confessed my family and I. That A~ my brother of my father M~. This is what he said to my father before he dead [sic].” A2~ also stated that he and his brother, W~, had taken a DNA test.

* A statement from S~, in which she stated that A1~ is her husband, and that she was living with her husband when the minor child was born. S~ further stated that A1~ wants his name to remain on the minor child’s birth certificate.

You have informed us that the number holder was domiciled in New Jersey at the time of his death.

ANALYSIS

To qualify for child’s benefits on the earnings record of an insured individual, a claimant must be the “child” of the insured individual. See 42 U.S.C. § 402(d)(1). As is relevant here, the Social Security Act provides that the term “child” refers to “the child or legally adopted child of an individual[.]” 42 U.S.C. § 416 (e)(1), (e)(2). A claimant’s status as the child of a number holder is governed by either section 216(h)(2) or (h)(3) of the Act. 42 U.S.C. § 416(h)(2), (h)(3). Section 216(h)(2)(A) of the Act contains Congress’s instructions for the primary method utilized by the Commissioner in determining parent-child relationships:

In determining whether an applicant is the child . . . of a fully or currently 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 personal 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 such.

42 U.S.C. § 416(h)(2)(A).

If an applicant does not qualify as a “child” under that section of the Act, Congress provided three alternative mechanisms for establishing child status. 42 U.S.C. § 416(h)(2)(B),(h)(3); 20 C.F.R. § 404.355; Program Operations Manual System (POMS) GN 00306.001. First, under section 216(h)(2)(B) of the Act, the applicant is deemed to be the “child” if the insured and other parent went through a marriage ceremony that would have been valid but for certain legal impediments. 42 U.S.C. § 416(h)(2)(B); 20 C.F.R. § 404.355(a)(2); POMS GN 00306.090. Second, under section 216(h)(3)(C)(i) of the Act, the applicant is deemed to be the “child” if the insured had acknowledged paternity in writing, if a court decreed the insured to be the parent, or if a court ordered the insured to pay child support because the child was his son or daughter and “such acknowledgment, court decree, or court order was made before the death of the insured.” 42 U.S.C. § 416(h)(3)(C)(i); 20 C.F.R. § 404.355(a)(3); POMS GN 00306.100B.1. Finally, under section 216(h)(3)(C)(ii) of the Act, the applicant is the insured’s “child” if there is satisfactory evidence that the insured was the applicant’s parent and the insured was living with or supporting the applicant at the time of death. 42 U.S.C. § 416(h)(3)(C)(ii); 404.355(a)(4); POMS GN 00306.100B.2; see Acquiescence Ruling (AR) 86-13(3) (holding that in 3d Circuit jurisdictions, where the worker’s income was irregular or insubstantial, the worker’s contributions to the child’s support must be evaluated in light of the financial resources of both the worker and the household in which the child resides).

Analysis Under Section 216(h)(2)(A) of the Act

Under this provision of the Act, in order for the minor child to be considered the “child” of the number holder, he must be able to inherit from the number holder’s estate under New Jersey laws of intestacy, the state where the number holder was domiciled at the time of his death. New Jersey law states that any part of the decedent’s intestate estate not passing to the spouse or domestic partner of the decedent (or the entire estate if there is no spouse or domestic partner) passes to the decedent’s descendants by representation. N.J. Stat. Ann. § 3B:5-4 (2014). The statutory definition of descendant includes “all of [an individual’s] progeny of all generations…” and includes a decedent’s child. N.J. Stat. Ann. § 3B:1-1 (2014). Therefore, in order for the minor child to inherit under intestacy, he must be a descendant of the number holder, which requires a relationship of parent and child.

To determine whether a parent-child relationship exists for purposes of intestate succession, New Jersey intestacy law looks to the New Jersey Parentage Act. N.J. Stat. Ann. § 3B:5-10 (2014) (“If for the purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through, or from an individual … an individual is the child of the individual's parents regardless of the marital state of the individual's parents, and the parent and child relationship may be established as provided by the “New Jersey Parentage Act….” ). Because S~ was married to a man other than the number holder at the time of the minor child’s birth, we look first to section 9:17-43(a)(1) of the New Jersey Parentage Act, which provides that a man is presumed to be the biological father of a child if he and the child's biological mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated by death, annulment or divorce. N.J. Stat. Ann. § 9:17-43(a)(1)(2014), see also POMS GN 00306.565(7)(a). The presumption of paternity is rebuttable only by clear and convincing evidence. N.J. Stat. Ann. § 9:17-43(b) (2014). The presumption is also rebutted “by a court order terminating the presumed father's paternal rights or by establishing that another man is the child's biological or adoptive father." Id.

Here, the minor child was born into wedlock, as his mother was married to A1~ at the time of the minor child’s birth. This establishes a presumption, rebuttable only by clear and convincing evidence, that A1~ is the biological father of the minor child. N.J. Stat. Ann. §§ 9:17-43(a)(1); 9:17-43(b). Although the record contains results from two genetic tests indicating a 99.99% probability that a brother of the minor child’s alleged paternal uncles is the father of the minor child, and that A1~ was not the biological father of the minor child, under New Jersey law, these tests alone do not overcome the presumption of paternity. See New Jersey Div. Of Youth and Family Services v. D.S.H., 40 A.3d 734, 740 (N.J. Sup. Ct., App. Div. 2012) (citations omitted) (holding that mother’s husband was child’s legal father, notwithstanding court-ordered paternity test indicating that husband was not child’s biological father. Among other things, the court noted that husband was named as the child’s father on her birth certificate; was married to mother at time of child’s birth and was thus her presumptive father; no one else sought to be named as child’s father; child believed that mother’s husband was her father; husband had no desire to relinquish that status; and there had been no court order determining that husband was not child’s father). But see, D.W. v. R.W., 52 A.3d 1043, 1051-52 (N.J. 2012) (citation omitted) (holding that when, in response to a divorce complaint filed by his wife, husband brought a third-party paternity action seeking to have husband’s brother-in-law declared the father of husband’s estranged 19-year old son, Family Court must order a genetic test, absent a showing of good cause for not doing so and that the results of a genetic test demonstrating non-paternity would meet the clear-and-convincing evidence standard of N.J. Stat. Ann. § 9:17-43(b) to rebut the presumption of legitimacy).

The facts show no evidence that the number holder sought to be named as the minor child’s father. The record contains no court-ordered finding of non-parentage for A1~. Additionally, given A1~’s desire to keep his name on the minor child’s birth certificate, there is no evidence that A~ would support the entry of an order of non-parentage. Further, DNA testing of the number holder’s relatives is of a questionable nature. The testing purports to show that there is a 99.99% probability that that a brother of the minor child’s alleged paternal uncles could be the biological father of the minor child. However, A2~, one of the minor child’s paternal “uncles,” appears to state that he is the minor child’s brother, not his uncle, calling the test results into question. And, even assuming W~ and A2~ are the minor child’s paternal uncles, there is no evidence that the number holder was the only brother of the paternal uncles. Thus, we do not believe that a New Jersey court would find that clear and convincing evidence exists to overcome the presumption that A1~ is the minor child’s father. 3

Analysis Under Sections 216(h)(2)(B) and 216(h)(3) of the Act.

According to the facts, the provisions of sections 216(h)(2)(B) or 216(h)(3) of the Act do not apply to this case. First, there is no evidence that the number holder and S~ ever went through a marriage, as required by section 216(h)(2)(B). 42 U.S.C. § 416(h)(2)(B). Second, there is neither a written acknowledgment by the number holder nor a court decree made during the number holder’s lifetime, as required by section 216(h)(3)(C)(i) of the Act. 42 U.S.C. § 416(h)(3)(C)(i). Third, under section 216(h)(3)(C)(ii) of the Act, satisfactory evidence does not show that the number holder was the applicant’s parent or that he was living with or supporting the applicant at the time of his death. 42 U.S.C. § 416(h)(3)(C)(ii).

Regarding whether there is satisfactory evidence of the number holder’s parentage, the record contains results from genetic testing show a 99.99% probability that a brother of the minor child’s alleged paternal uncles could be the biological father of the child. However, as discussed above, A2~ appeared to state that he and W~ are the minor child’s brothers, not his uncles, calling the validity of DNA test results into question. Additionally, even assuming W~ and A~ are the minor child’s paternal uncles, there is no evidence that the number holder is W~ and A2~’s only brother or whether there are additional brothers who could potentially be the minor child’s father. Finally, even if there is satisfactory evidence that the number holder was the minor child’s parent, as mentioned above, there is no evidence that the number holder was living with or supporting the applicant at the time of his death. 42 U.S.C. § 416(h)(3)(C)(ii).

CONCLUSION

The minor child is not able to inherit from the number holder under New Jerseys laws of intestacy and is not entitled to child’s insurance benefits under section 2116(h)(2)(A) of the Act. Further, the minor child is not eligible for benefits under any other provision of section 216(h) of the Act.

C. PR 08-185 Parent-Child Relationship Between Number Holder (B~) and J~, D~, and K~ (the children) SSN ~

DATE: September 15, 2008

1. SYLLABUS

In New Jersey, a child or father acquires status of child or parent by order of a court of another State. Since a Family court in West Virginia declared the number holder to be the father of the three claimants and ordered him to pay child support based on his agreement to take financial responsibility for them, his statement of acknowledgement, and their amended birth certificates showing the number holder as father; a court in New Jersey would find that the claimants are his children and could inherit from his estate.

The subsequent statements of the mother and the number holder that he is not the father would not be sufficient to overcome the court order.

2. OPINION

Issue:

Whether a parent-child relationship can be established based on a West Virginia Family Court order which names B~ (NH) as the father of J~, D~ and K~ (the children).

Statement of Facts:

All of the children were born in West Virginia between 1990 and 1996. The children live in West Virginia with their mother and stepfather, D~. All of the children's birth certificates show the NH, who resides in New Jersey, as the father of the children.

In May 2002, the Family Court of Gilmer County, West Virginia filed an Order of Child Support declaring that the NH was the father of each of the three children.

In making this declaration, the Family Court noted that the birth certificates of the children appeared to have been amended after their issue to add the name of the NH as the father. The court ordered the Bureau for Child Support Enforcement to request from the Division of Vital Statistics the documentation that led to the NH's name being added to the birth certificates of the children. The Bureau for Child Support Enforcement received from the Division of Vital Statistics three paternity affidavits duly acknowledged by the NH and the children's mother, one for each of the subject children. Based on this information, the Family Court ordered that the NH pay child support to all of the children.

On March XX, 2008, the children's stepfather filed applications for child benefits for each of the children on the account of the NH. The file contains an SSA-795 Statement of Claimant or Other Person from the NH in which he states that he is not the biological father of any of the children although he is the only father they have ever known. There is also an SSA-795 from the mother which states that the NH is not the biological father of the children but that he has assumed responsibility for them.

Discussion:

Under the Social Security Act, a child is entitled to child's insurance benefits on the earnings record of an insured person who is entitled to old-age or disability benefits where a child is the insured's child based upon a relationship described in 20 C.F.R. '' 404.355-359, is under 18 years of age, unmarried, and dependent on the insured as defined in 20 C.F.R. '' 404.360-365. 42 U.S.C. ' 402(d); 20 C.F.R. ' 404.350(a).

In determining whether an applicant is the child of an insured individual, the Commissioner of Social Security shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files application. See 42 U.S.C. ' 416(h)(2)(A); 20 C.F.R. ' 404.355(a)(1) and (b)(1). If the applicable state law would permit the child to inherit the insured's personal property as his natural child, then SSA considers the child to be the insured's child. Id.

Here, we would look to the intestacy laws of New Jersey because that it is where the NH was domiciled at the time of the application. 20 C.F.R. ' 404.355(b)(1). In New Jersey, a child or father acquires status of child or parent by order of a court of another State. POMS GN 00306.565. New Jersey Statutes (N.J.S.) ' 3A:2A-41.

The Family Court of Gilmer County, West Virginia declared the NH to be the father of the three subject children and ordered him to pay child support to all of them. The West Virginia Family Court based its decision on the following facts: (1) the NH agreed to assume responsibility for the children, (2) there are three paternity affidavits (one for each of the subject children) in which the NH duly acknowledged that the children are his and, (3) on the basis of the paternity affidavits, each of the children's birth certificates was amended to reflect the NH as their father. Thus, under New Jersey law, the children can inherit the NH's personal property as his natural children. 20 C.F.R. ' 404.355(a)(1) and (b)(1); N.J.S. ' 3A:2A-41

Accordingly, the NH is the children's father and the parent relationship can be established as of each child's date of birth. POMS GN 00306.050 (A child legitimated after birth is considered to be legitimate from birth); POMS GN 00306.085.

Very truly yours,

Mary Ann Sloan

Acting Regional Chief Counsel

By:______________
Sixtina Fernandez
Assistant Regional Counsel

D. PR 06-032 A~ (child) Deceased Number Holder: J~ SSN ~ New Jersey State Law: DNA & Paternity

DATE: December 13, 2005

1. SYLLABUS

A New Jersey court order based on DNA testing of the alleged paternal grandfather of the claimant and showing a 99.82% probability that a son of the grandfather is the father of the claimant will create a rebuttable presumption of paternity by the deceased number holder provided that additional evidence is obtained which excludes any other son of the grandfather from being the claimant's parent.

If the presumption of paternity stands after the additional evidence is obtained, the parent-child relationship would be established with the date of the claimant's complaint to the New Jersey court.

2. OPINION

You have asked for this office's opinion regarding whether a parent-child relationship existed between A~ (“A~”) and J~, the deceased number holder (the “NH”) for purposes of entitlement to child's survivor benefits under Title II of the Social Security Act (the “Act”). For the reasons stated below, we conclude that the submitted New Jersey court order of paternity based on genetic testing might be sufficient to establish a parent-child relationship between A~ and the NH under New Jersey intestacy and parentage laws. However, this office cannot make an ultimate determination as to A~'s entitlement based on the submitted evidence. Additional evidence must be obtained, as discussed herein. Assuming the additional evidence is obtained, the Agency could defer to the court order of paternity under Gray v. Richardson, adopted by Social Security Ruling 83-37c. Lastly, should the Agency defer to the court order of paternity, then A~'s entitlement to child's survivor benefits would begin April 2005, when a parent-child relationship was established for purposes of intestate succession under New Jersey laws.

SUMMARY OF THE FACTS

A~'s birth certificate reveals that he was born on December, to M~. The birth certificate does not contain any information as to the father. The NH died on February XX, 2005. M~ filed an application on March XX, 2005 for benefits under Title II of the Social Security Act on A~'s behalf as the surviving child of the insured NH (“child's survivor benefits”). That application was denied, and M~ did not appeal the application.

On September XX, 2005, M~ filed a second application for child's survivor benefits. The following information was submitted or obtained pursuant to this application:

A Civil Action Complaint against J~, the NH, for “Paternity Only,” filed on April XX, 2005 in the Superior Court of New Jersey, Chancery Division - Family Part for the County of Morris (the “Court”), Docket No. FD-14-598-05 by the Morris County Department of Human Services, Office of Temporary Assistance on behalf of M~. The Complaint indicated that the defendant's (the NH's) mailing address was c/o S~, Pershing Avenue, Iselin, New Jersey, 08830, County of Middlesex. The Complaint further asked that any order of paternity be made retroactive to the filing date of the Complaint;

A June XX, 2005 Court Order for genetic testing. The Order states that “Defendant's mother, S~, present and requesting genetic testing.”;A Chain of Custody document certifying that sample collection and testing for paternity evaluation was performed on M~, A~, and J~, who is the alleged biological grandfather, on July XX, 2005. The document also contains a certification that the specimens were received at LabCorp on July XX, 2005, with no evidence of tampering; A LabCorp Relationship Report based on DNA analysis, certified on July XX, 2005, by the LabCorp Director, G~, Ph.D., D(ABMG) concluding that (1) the alleged paternal grandfather, J~, could not be excluded as the biological grandparent of A~, since they share genetic markers; and (2) using genetic markers found in the testing of the alleged biological grandfather, his biological son was estimated to have a probability of paternity of 99.82%, as compared to an untested, unrelated man; A Court Order dated September XX, 2005, establishing paternity between the NH and A~. The Order stated that “S~ acknowledged that her son, J~, is the natural father of A~ based on the genetic test results.”; and,

A numident of the NH's account listing his parents as J~ and S~T~.

Additionally, a September 26, 2005 Report of Contact contains statements from M~~ indicating that the NH did not provide support or contributions for A~, and, that after the NH came home from rehabilitation he was living with his mother and died two weeks later. M~~ also alleged that the NH has a twin brother, believed to be identical.

Lastly, another child, A~, has been deemed to be the NH's child for purposes of entitlement to child's survivor benefits, and is currently receiving benefits under the NH's account.

LEGAL ANALYSIS

1. Social Security Statutes and Regulations

A child of an individual who dies fully insured or currently insured under the Act is entitled to child's insurance benefits if he or she

(1) is the insured's child based upon a relationship as described by the Act and the Commissioner's regulations;

(2) has applied for such benefits;

(3) is unmarried;

(4) is under the age of 18; and,

(5) was dependent upon the insured individual at the time of the insured's death.

See 42 U.S.C. §§ 402(d)(1), 416(e); 20 C.F.R §§ 404.350(a), 404.355-404.365; see generally, POMS GN 00306.001A. If the child is the insured's natural child, then he or she is considered dependent upon the insured, thus satisfying the fifth requirement. See 20 C.F.R. § 404.361(a).

To be considered the insured's child for purposes of entitlement to child's survivor benefits in this matter, A~ would need to show that he could inherit as the insured NH's son under state intestacy law where the insured was domiciled at the time of his death:

In determining whether an applicant is the child … of a fully or currently 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 personal property…, if such insured individual is dead, by the courts of the State in which he was domiciled a the time of his death….

42 U.S.C. § 416(h)(2)(A); see 20 C.F.R. § 404.355(a)(1), (b)(4); POMS GN 00306.001C.2.a, and GN 00306.055.A.

Thus, for purposes of determining whether A~ is the NH's surviving child, we must look to the intestacy laws of the State of New Jersey, which is where the NH was presumably domiciled when he died. Such presumption is based on the September 2005 Report of Contact, wherein M~ indicated that the NH was living with his mother when he died, and the April 2005 Complaint for Paternity, which indicated that the NH's mailing address was “care of” his mother S~, who resided in Iselin, New Jersey. We recommend that the NH's death certificate or a death record be obtained to confirm that he was domiciled in the State of New Jersey at the time of his death, as such is ultimately determinative of the laws of the state we apply to determine A~'s entitlement to child's survivor benefits.

2. New Jersey State Intestacy and Parentage Laws

Section 3B:5-10 of New Jersey Statutes Annotated (“N.J.Stat.Ann.”)(2004), Establishment of Parent-Child Relationship provides that

[i]f, for the purpose of intestate succession, a relationship of parent and child must be established to determine succession by, through or from an individual,… an individual is the child of the individual's parents regardless of the marital state of the individual's parents, and the parent and child relationship may be established as provided by the “New Jersey Parentage Act,” P.L. 1983 c.17 [N.J.Stat.Ann. §§ 9:17-38 et. seq.]....

The New Jersey Parentage Act states that a parent-child relationship between a child and the natural father may be established by an order of the court based on a blood test or genetic test that meets or exceeds the specific threshold probability as set forth in N.J.Stat.Ann. § 9:17-48 creating a rebuttable presumption of paternity. N.J.Stat.Ann. §§ 9:17-41(b), 9:17-48(d)(2), 9:17-52(c); see POMS GN 00306.565(2), (6). Subsection (i) of N.J.Stat.Ann. § 9:17-48 specifies that “[b]lood test or genetic test results indicating a 95% or greater probability that the alleged father is the father of the child shall create a presumption of paternity which may be rebutted only by clear and convincing evidence that the results of the test are not reliable in that particular case.”

Section 9:17-52, subsections (c) and (e), of N.J.Stat.Ann. additionally provides that evidence relating to paternity may include “[g]enetic or blood tests, weighed in accordance with the evidence, if available, of the statistical probability of the alleged father's paternity” and “[a]ll other evidence on behalf of any party, relevant to the issue of paternity of the child.”

3. The Parent-Child Relationship

In order for A~ to inherit as the NH's son in the State of New Jersey, A~ would need to establish a parent-child relationship in accordance with New Jersey intestacy and parentage law. See N.J.Stat.Ann. § 3B:5-10. Presumably, the first application for child's survivor benefits was denied due to the lack of evidence establishing a parent-child relationship between A~ and the NH under New Jersey law.

However, upon the second application for benefits, which was filed on September XX, 2005, additional evidence was submitted or obtained, including a Court Order establishing NH's paternity based on genetic testing. The testing was performed on DNA samples taken from A~, M~, and alleged paternal grandfather J~. See M.A. v. Estate of A.C., 274 N.J. Super 245, 250-52, 643 A.2d 1047, 1049-50 (Ch. Div.1993)(DNA testing of decedent's heirs and their mother can provide conclusive evidence establishing whether decedent was biological father of the claimant). The conclusion of the DNA testing was that the biological son of the alleged biological grandfather, J~, is estimated to have a 99.82% probability of paternity as compared to an untested, unrelated man. There appears to have been no challenge to the reliability of the DNA testing performed and the results certified by LabCorp in this particular case, or any allegation of fraud, duress or material mistake of fact with respect to the proceedings in this matter. See N.J.Stat.Ann. §§ 9:17-41(b), 9:17-48(d) & (i).

[i]f, for the purpose of intestate succession, a relationship of parent and child must be established to determine succession by, through or from an individual,… an individual is the child of the individual's parents regardless of the marital state of the individual's parents, and the parent and child relationship may be established as provided by the “New Jersey Parentage Act,” P.L. 1983 c.17 [N.J.Stat.Ann. §§ 9:17-38 et. seq.]....

The New Jersey Parentage Act states that a parent-child relationship between a child and the natural father may be established by an order of the court based on a blood test or genetic test that meets or exceeds the specific threshold probability as set forth in N.J.Stat.Ann. § 9:17-48 creating a rebuttable presumption of paternity. N.J.Stat.Ann. §§ 9:17-41(b), 9:17-48(d)(2), 9:17-52(c); see POMS GN 00306.565(2), (6). Subsection (i) of N.J.Stat.Ann. § 9:17-48 specifies that “[b]lood test or genetic test results indicating a 95% or greater probability that the alleged father is the father of the child shall create a presumption of paternity which may be rebutted only by clear and convincing evidence that the results of the test are not reliable in that particular case.”

Section 9:17-52, subsections (c) and (e), of N.J.Stat.Ann. additionally provides that evidence relating to paternity may include “[g]enetic or blood tests, weighed in accordance with the evidence, if available, of the statistical probability of the alleged father's paternity” and “[a]ll other evidence on behalf of any party, relevant to the issue of paternity of the child.”

3. The Parent-Child Relationship

In order for A~ to inherit as the NH's son in the State of New Jersey, A~ would need to establish a parent-child relationship in accordance with New Jersey intestacy and parentage law. See N.J.Stat.Ann. § 3B:5-10. Presumably, the first application for child's survivor benefits was denied due to the lack of evidence establishing a parent-child relationship between A~ and the NH under New Jersey law.

However, upon the second application for benefits, which was filed on September XX, 2005, additional evidence was submitted or obtained, including a Court Order establishing NH's paternity based on genetic testing. The testing was performed on DNA samples taken from A~, M~, and alleged paternal grandfather J~. See M.A. v. Estate of A.C., 274 N.J. Super 245, 250-52, 643 A.2d 1047, 1049-50 (Ch. Div.1993)(DNA testing of decedent's heirs and their mother can provide conclusive evidence establishing whether decedent was biological father of the claimant). The conclusion of the DNA testing was that the biological son of the alleged biological grandfather, J~, is estimated to have a 99.82% probability of paternity as compared to an untested, unrelated man. There appears to have been no challenge to the reliability of the DNA testing performed and the results certified by LabCorp in this particular case, or any allegation of fraud, duress or material mistake of fact with respect to the proceedings in this matter. See N.J.Stat.Ann. §§ 9:17-41(b), 9:17-48(d) & (i).

The 99.82% estimated probability of paternity meets the 95% or greater probability threshold required by the New Jersey Parentage Act on the establishment of a parent-child relationship. See N.J.Stat.Ann. § 9:17-48(i). Nevertheless, there is still the issue of proof as to whether the NH is actually the biological son of J~. While the NH's numident lists J~ as the NH's father, this should be confirmed by obtaining the NH's birth certificate. The numident further identifies S~. T~ as the NH's mother. Hence, additional evidence should be obtained establishing whether the NH is the biological son of S~ who, according to Court Orders, requested genetic testing, and later, acknowledged that her son, purportedly the NH, was the natural father of A~ based on the genetic test results. Again, the NH's birth certificate would be useful.

Moreover, the genetic test results deduce that any biological son of J~ had the estimated 99.82% probability of paternity of A~. Thus, additional evidence is needed to exclude the possibility that A~ is the natural child of any other biological son of J~. With regard to the later, M~ has alleged that the NH has a twin brother believed to be identical. Further inquiry of this information is required. If such person exists, genetic test results would not exclude the possibility that the NH's twin brother, or any other brother, could be the biological father of A~.

Accordingly, further development in this matter is needed on the issues of whether the NH is the biological son of S~ and, more importantly, J~, and whether J~ has any other biological sons. This office suggests first obtaining the NH's long-form birth certificate, which might contain information on the NH's biological mother, father, and any children born previously or concurrently, such as a twin brother. You may also attempt to gather the information by speaking directly to J~ and/or S~, and asking if the NH had any brothers fathered by J~.

Given additional evidence establishing that the NH is the biological son of J~, and excluding the NH's brothers, if any, as possible fathers of A~, the Court's September XX, 2005 Order could establish a parent-child relationship between the NH and A~ under the New Jersey Parentage Act for the purpose of intestate succession in the State of New Jersey. Conversely, the lack of such evidence, and/or evidence of the existence of the NH's identical twin or other biological son of J~ could amount to a rebuttal of the presumption of the NH's paternity of A~ determined by the Court in its September XX, 2005 Order. See N.J.Stat.Ann.§§ 9:17-41(b), 9:17-48(d)(2), 9:17-52(c).

The New Jersey Parentage Act further provides for the amendment of a child's birth record upon the court's request so that it is consistent with the findings or the court, or upon the court's order if the order regarding the parent-child relationship is at variance with the child's birth certificate. N.J.Stat.Ann.§§ 9:17-53(b), 9:17-59(a). A~'s birth certificate contains no information as to the father. While such fact may not be especially relevant to the issue of entitlement of benefits under the Act, we suggest ascertaining whether A~'s birth certificate was amended to include the NH as the father. If so, the amended birth certificate should be obtained.

4. Effect of the State Court Order

The Commissioner is not necessarily bound by the decision of the State trial court in a proceeding to which she was not a party. See Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973); POMS GN 003.06.001C.3. However, the Gray decision, adopted as Social Security Ruling ("SSR") 83-37c, provides that the Commissioner is not free to ignore an adjudication of a State trial court where the following prerequisites are found:

an issue in a claim for Social Security benefits previously has been determined by the State court of competent jurisdiction;

this issue was genuinely contested before the State court by parties with opposing interests;

the issue falls within the general category of domestic relations law; and

the resolution by the State trial court is consistent with the law enunciated by the highest court in the State.

474 F.2d at 1373; SSR 83-37c.

Prongs one and three of SSR 83-37c were met insofar as a court of competent jurisdiction has made a determination on the issues of parent-child relationship and paternity under New Jersey intestacy and parentage laws, which relate to a claim for benefits under the Act, as discussed above.

As for the second prerequisite, the Sixth Circuit in Gray placed emphasis on the contested proceeding therein, noting its importance in determining whether the Commissioner was bound by a State court decision. See 474 F.2d at 1373. Assuming additional evidence establishes the NH was the biological son of S~ and J~, it appears that the issue of NH's paternity was genuinely contested by a person with opposing interests. For instance, one opposing interest may be A~'s inheritance rights as an alleged biological grandson of S~'s estate.

Here, S~ requested, and the Court ordered, genetic testing, which involved samples taken from the NH's father, J~. Following DNA analysis, S~ acknowledged that her son, the NH, is the natural father of A~ based on the genetic test results. This acknowledgment is contained in the Court's September XX, 2005 Order. Further, as discussed, there has been no challenge to the reliability of the DNA testing, or any actual allegation of fraud, duress or material mistake of fact with respect to the proceedings in this matter.

Regarding the last prerequisite, it appears that the Court's Order establishing paternity is not inconsistent with New Jersey laws on intestacy and parentage so long as the additional evidence is consistent with the Order. See N.J.Stat.Ann. § 9:17-53(a). In fact, the New Jersey Supreme Court concluded in Fazilat v. Feldstein that an accurate determination of paternity under the New Jersey Parentage Act is in a child's best interest, as it not only establishes the child's legitimacy and contributes to his or mental well-being, but it may also entitle a child to certain rights, including Social Security, Veteran's or pension benefits. 180 N.J. 74, 87-88, 848 A.2d 761, 768-69 (2004)(citing M.A. v. Estate of A.C., 274 N.J. Super at 255-56, 643 A.2d at 1052-53)(other citations omitted). If the additional evidence is not consistent with the Court Order, however, the Order would not be accurate and, thus, not harmonious with New Jersey law.

Accordingly, the Agency could defer to the Court's September 16, 2005 Order establishing the NH's paternity and a parent-child relationship between A~ and the NH, provided additional evidence has been obtained and supports the Order, as discussed above. Assuming the Court Order establishes a parent-child relationship between the NH and A~ and, therefore, A~'s right to inherit as the NH's child, under New Jersey parentage and intestacy laws, A~ should be entitled to child's survivor benefits as the insured NH's child for purposes of under the Act. See 42 U.S.C. §§ 402(d)(1), 416(h)(2)(A); 20 C.F.R. §§ 404.350(a), 404.355(a)(1).

DATE OF ENTITLEMENT

You also inquired as to what would be the appropriate date of entitlement, assuming A~ is entitled to benefits under the NH's account. Entitlement to child's benefits, if the insured is deceased, begins the first month covered by the application in which all other requirements for entitlement are also met. See 20 C.F.R. § 404.352(a). Furthermore, children filing for survivors' benefits may receive retroactive benefits on the record of the deceased number holder for up to six months beginning with the first month in which all requirements are met. 20 C.F.R. § 404.621(a)(1)(ii).

An initial application for child's survivor benefits was filed in March 2005, and was denied without further appeal. A second application was filed in September 2005.

Under the New Jersey Parentage Act, the judgment or order of the court or a Certificate of Parentage determining the existence (or nonexistence) of the parent and child relationship is determinative for all purposes. N.J.Stat.Ann. § 9:17-53(a). Assuming the Agency defers to the Court Order of paternity here, a parent-child relationship was established between A~ and the NH under the New Jersey Parentage Act. Such relationship conferred on A~ inheritance rights as the NH's child under New Jersey intestacy law. The Court's Order also had the effect of granting M~'s April XX, 2005 Civil Action Complaint seeking an order of paternity. Because the Complaint also provided that any order of paternity be made retroactive to the filing date of the Complaint, this office deems the effective date of A~'s inheritance rights to be April XX, 2005, the filing date of the Complaint. See POMS GN 00306.055A.3 (an act/event conferring inheritance rights has effect only from the date of such act/event).

Accordingly, if the Court Order is accepted, April 2005 would be the first month in which all the requirements for entitlement under 20 C.F.R. § 404.350 are met for purposes of entitlement to child's survivor benefits retroactive to the period of the September 2005 application. See 20 C.F.R. § 404.621(a)(1)(ii). Thus, if the Agency defers to the Court Order, the date of A~'s entitlement would be April 2005.

CONCLUSION

Genetic test results here may be sufficient under New Jersey intestacy and parentage laws to deem A~ the NH's child for purposes of entitlement to child's survivor benefits under the Act. However, further development, as discussed, is needed. Assuming A~ is entitled to benefits, the earliest date of entitlement would be April 2005.

Very truly yours,

BARBARA L. SPIVAK

By:__________________
Maria P. F.Santangelo

Assisant Regional Counsel


Footnotes:

[1]

Subsections (h)(2)(B) and (3)(B) of section 216(h) describe three alternative ways in which an applicant who is the son or daughter of the insured wage earner, but who is not determined to be a “child” under section 216(h)(2)(A), may nevertheless be “deemed” a child for purposes of section 216(e)(1). Under subsection (h)(2)(B) an applicant who is the son or daughter of the insured wage earner is deemed to be a “child” if the insured and the other parent went through a marriage ceremony that would have been valid but for certain legal impediments. Act § 216(h)(2)(B), 42 U.S.C. § 416(h)(2)(B). The only legal impediments recognized in the Act are the lack of dissolution of a previous marriage or other defect arising out of a previous marriage or its dissolution or defect in the procedure followed in connection with the purported marriage. Sections 216(h)(2)(B), 216(h)(1)(B)(iv) of the Act, 42 U.S.C. §§ 416(h)(2)(B), 416(h)(1)(B)(iv). Here, there was no marriage. Under subsection (h)(3)(B)(i) an applicant is deemed to be a “child” if the insured acknowledged in writing that the applicant is his or her son or daughter, had been decreed by a court to be the father or mother of the applicant, or had been ordered to pay support because the applicant is his or her son or daughter and such acknowledgment, court decree, or court order was made before such insured individual’s most recent period of disability began. Act § 216(h)(3)(B)(i), 42 U.S.C. § 416(h)(3)(B)(i). Under subsection (h)(3)(B)(ii) an applicant is deemed to be a “child” if the insured is shown by evidence satisfactory to the Commissioner to be the applicant’s father or mother, and the insured was living with or supporting the applicant at the time the applicant filed his application. Act § 216(h)(3)(B)(ii), 42 U.S.C. § 416(h)(3)(B)(ii). To satisfy the requirements of section 216(h)(3), the child must be the NH’s biological child. Program Operations Manual System (POMS) GN 00306.100. Because the Claimants are not the NH’s biological children, these subsections are not relevant here.

[2]

The domestic partnership into which the NH and L~ entered in 2004 would not have provided any of the family law protections available to married couples. See Lewis v. Harris, 908 A.2d 196, 216 (N.J. 2006) (“The Domestic Partnership Act, notably, does not provide to committed same-sex couples the family law protections available to married couples.”) For example, the Domestic Partnership Act provided no comparable presumption of dual parentage to the non-biological parent of a child born to a domestic partner. Lewis, 908 A.2d at 216, see N.J. Stat. Ann. § 9:17-43 (listing circumstances under which a man is presumed to be the biological father of a child). Additionally, once the NH and L~ entered into a civil union in 2007, their domestic partnership terminated. N.J. Stat. Ann. § 26:8A-4.1.

[3]

New Jersey law states that a blood test or genetic test results indicating a 95% or greater probability that the alleged father is the father of the child shall create a presumption of paternity which may be rebutted only by clear and convincing evidence that the results of the test are not reliable in that particular case. N.J. Stat. Ann. § 9:17-48(i). This statute is not applicable here, as there is no blood or genetic test showing a 95% or greater probability that the number holder is the father of the child. Additionally, the D.S.H. court indicated that the statutory presumption of paternity resulting from a test “indicating a 95% or greater probability that the alleged father is the father of the child” does not, on its face, apply to circumstances where non-paternity is alleged, such as attempting to rebut a presumption that a child born into a marriage is the child of the mother’s husband. New Jersey Div. of Youth and Family Services v. D.S.H., 40 A.3d at 742; see N.J. Stat. Ann. § 9:17-48(i). As the court noted, this statutory presumption allows the admission of a paternity test in contested cases, generally for the purpose of establishing a child support obligation, without the necessity of a full evidentiary hearing. New Jersey Div. of Youth and Family Services. v. D.S.H., 40 A.at 742, FN 6.


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1501115033
PR 01115.033 - New Jersey - 01/15/2016
Batch run: 01/15/2016
Rev:01/15/2016