This is in response to your request for assistance in determining whether Sheila R.
A~ is entitled to child's benefits on the account of the deceased wage earner, Robert
J. A~ Specifically, you have asked whether the facts presently available fall short
of the "clear and convincing evidence" required by Ohio law to rebut a presumption
applicable under POMS GN 00306.135 (Ohio) that would establish that Robert should be considered the natural father of
As we analyze the problem, Ohio law is only relevant insofar as Sheila could be entitled
to child's benefits under Section 216(h)(2)(A) of the Act, 42 U.S.C. § 416(h)(2)(A).
Under that provision, the test for child's benefits is whether the claimant would
be entitled to inherit from the deceased wage earner under the law of intestate succession
of the State in which the wage earner was domiciled at the time of his death. Because
we believe that Ohio law would permit Sheila to so inherit, we believe awarding child's
benefits under that provision would be proper.
We also believe, however, that this case should also be analyzed under Section 216(h)(3)(C)(i)(I)
of the Act, 42 U.S.C. § 416(h)(3)(C)(i)(I). That provision sets forth a federal test
for entitlement to child's benefits that is independent of state law issues, and that
on the facts of this case also would appear to entitle Sheila to child's benefits.
Accordingly, we conclude that in addition to the outcome under Ohio law, Sheila should
also be entitled to benefits under the alternative federal test of Section 216(h)(3)(C)(i)(I).
From our review of the claims folder, the relevant facts may be summarized as follows:
the child claimant, Sheila A~ ("Sheila"), was born February XX, 1980 at Denver, Colorado,
to Debra M~ ("Debra"). At the time of Sheila's birth the wage earner Robert A~ ("Robert")
was married to Laura A~. Robert secured a Colorado divorce dissolving this marriage
on April XX, 1982.
On June XX, 1982, Robert submitted a notarized "Statement of Paternity" to the Colorado
Bureau of Vital Statistics. On this standardized form Robert acknowledged in writing,
as attested by a public notary, that he was the natural father of Sheila and requested
that he be entered on the child's birth certificate as the father. Robert further
requested that the child's surname be entered on the birth certificate as "A~" Robert
also verified that he had "contracted a Common Law Marriage at Denver, Colorado with
Debra K~ M~ , the mother of the child," on April XX, 1982. Debra also executed the
same document on June XX, 1982 as attested by a notary, and verified that Robert was
Sheila's natural father, that the child should bear the surname "A~" and that she
had "contracted a Common Law Marriage at Denver, Colorado with Robert" on April XX,
Two days later on June 16, 1982, Debra executed another notarized statement inconsistent
with her earlier statement. She now stated that Robert was not Sheila's natural father,
and that she wished to "relieve Robert J~ A~ of the responsibility of Sheila R~ (M~
) A~, and also her last name will be returned to M~, if we should dissolve our marriage."
(emphasis added). This document was found among Robert's effects after his death and
was never filed with any governmental office or agency.
Robert was diagnosed as having cancer. In August 1982 he, Debra, and Sheila moved
to his parent's home in Ohio to permit Robert to obtain chemotherapy. At this time,
Robert used the statement of paternity to establish that Sheila was his child for
welfare purposes with the Wayne County, Ohio, Department of Welfare. Nine months later
in May 1983 Debra and Sheila returned to Denver and Robert remained in Ohio. Debra
has stated that this was done because Robert did not want them to see him dying. On
March 30, 1986, Robert died of cancer in Akron, Ohio. On May 3, 1986 Debra filed the
present claim for child's benefits on behalf of Sheila.
The file contains statements by Robert's parents denying that Sheila was the natural
child of Robert, and denying that a common law marriage existed between Robert and
Debra. They furnished to the SSA Debra's June 16, 1982 notarized statement denying
Robert was the father which had been found among Robert's possessions. Debra has in
the meanwhile continued to insist that Robert is Sheila's natural father. She stated
that she executed the June 16, 1982 statement indicating otherwise because she and
Robert thought that in the event of his death, Debra would have fewer financial problems
if Sheila's last name remained M~
I. Entitlement Under Section 216(h)(2)(A) — Ohio Intestate Succession.
Prior to June 29, 1982, when Ohio adopted the Uniform Parentage Act, Ohio Rev. Code
§ 3111.01 et seq., a child born out of wedlock could inherit from his mother (Rev. Code 2105.17),
but could inherit from his father only if the father took certain steps in his lifetime.
These included adoption, making a valid will in the child's favor, designating the
illegitimate child as his heir-at-law (Rev. Code 2105.15), or formally acknowledging
paternity in the Probate Court with the consent of the mother (Rev. Code 2105.18).
Under the Ohio scheme, there was no provision allowing for inheritance by illegitimates
based upon a posthumous determination of paternity, or other proceedings instituted
after the death of the father. The constitutionality of these provisions was upheld
in White v. Randolph, 59 Ohio St.2d 6, 391 N.E.2d 333 (1979), appeal dismissed sub nom. Jackson v. White, 444 U.S. 1061 (1980) (dismissing for lack of substantial federal question).
The right of illegitimates to inherit in Ohio has now been significantly broadened
by Ohio's adoption of the Uniform Parentage Act, which became effective on June 29,
1982, and governs this case. The Act sets forth the means by which the "parent and
child relationship" can be established under Ohio law. It provides that a child, the
child's mother, the putative father, or the personal representative of any of the
foregoing parties, may bring an action in juvenile court to establish the existence
of the parent and child relationship (Rev. Code 3111.01; 3111.04 - 3111.06). Once
parentage has been proven pursuant to these provisions, a judgment establishing the
"parent and child relationship" shall be entered by the Court that "is determinative
for all purposes." (Rev. Code § 3111.13). The Act goes on to define the "parent and
child relationship" as:
the legal relationship that exists between a child and the child's natural or adoptive
parents and upon which those sections and any other provision of the Revised Code
confer or impose rights, privileges, duties and obligations.
(Rev. Code § 3111.01(A)(emphasis added).
The Act also expressly provides that the "parent and child" relationship may be established
pursuant to its provisions regardless of the parents' marital status:
the parent and child relationship extends equally to all children and all parents,
regardless of the marital status of the parents.
(Rev. Code § 3111.01(B)(emphasis added).
These provisions have been authoritatively interpreted to mean that a judgment establishing
the existence of a "parent and child" relationship under § 3111.01 et seq.. confers inheritance rights vis a' vis that parent and child, including cases where
the judgment is obtained after the parent's death. E.g., Beck v. Jolliff, 22 Ohio App. 3d 84, 489 N.E. 2d 825 (1984).
Accordingly, establishment of a parent-child relationship pursuant to the Ohio Uniform
Parentage Act, or the standards set forth therein, entitles a child-claimant to child's
benefits under Section 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A), as several Ohio federal
district courts have held. E.g., Michelle S~ v. Heckler, 1984 - 1985 CCH Unemployment Insurance Rptr., §16,240, pp. 2373-2379 (N.D. Ohio,
5/31/85) (District Judge D~); D~D~ v. Secretary/ of Health and Human Services, 1984 - 1985 CCH Unemployment Insurance Rptr., §15,906 (N.D. Ohio, 10/24/'84) (District
Judge Aldrich). 
The issue in the instant case is therefore whether the evidence suffices to establish
the "parent-child relationship" between Sheila and Robert under the standards set
forth in Rev. Code § 3111.01 et seq. We believe that the evidence does meet that standard in light of the strong presumption
set forth by Rev. Code § 3111.03(A)(3):
(A) A man is presumed to be the natural father of a child under any of the following
(3) The man and the child's mother, after the child's birth, married or attempted
to marry each other by a marriage solemnized in apparent compliance with the law of
the state in which the marriage took place, and any of the following occur:.
(a) The man has acknowledged his paternity of the child in a writing sworn to before
a notary public; (b) The man, with his consent, is named as the child's father on
the child's birth certificate; (c) the man is required to support the child by a written
voluntary promise or by a court order.
Rev. Code § 3111.03(A)(3) requires at least an attempted marriage
"in apparent compliance" with the law of the State where the marriage occurred. The
relevant State law in this case is Colorado, where Robert and Debra allegedly contracted
a common law marriage on April 27, 1982. The statute further provides that the "presumption
arises under division (A)(3)" regardless of the actual "validity or invalidity of
the marriage of the parents." (Rev. Code § 3111.03(B).
The facts of this case, together with the document Robert and Debra executed on June
14, 1982, and filed with the Colorado Department of Vital Statistics, appear to satisfy
the requirements of Rev. Code § 3111.03(A)(3). The document, which was signed by each
party, anti notarized, states that Debra and Robert "contracted a common law marriage"
and that neither was "under any legal disability." This appears to satisfy the requirement
under Colorado law that for a "common law marriage" to exist, there must simply be
a "mutual consent or agreement of the parties to be husband and wife." People v. Lucero, 747 P. 2d 660, 663 (Colo. 1987). In addition to an agreement, however, there must
also be "a mutual and open assumption of a marital relationship." Id.; accord, Clark v. Clark, 123 Colo. 285, 229 P.2d 142 (1951); Taylor v. Taylor, 10 Colo. App. 303, 50 P. 1049, 1049 (1897).
Nothing we have seen in the claims folder suggests that this additional requirement
also is not met. From April to August 1982, Robert and Debra lived together in Colorado,
and, after moving to Ohio continued to do so until May 1983. Moreover, Debra adopted
Robert's surname as reflected in the June 14, 1982 document they mutually executed
together, and both agreed to have Sheila use Robert's surname. Because this case involves
an express agreement to be treated as man and wife  , together with other behavior which the Colorado courts have treated as indicia
supportive of the existence of a common law marriage, including open cohabitation,
and adoption of the man's surname by both the woman and child, see Lucero, supra, 747 P.2d at 664-665, a valid common law marriage likely existed under Colorado law.
Even if this were not the case, moreover, we believe that the foregoing would still
meet the lesser standard of Rev. Code § 3111.03(A)(3) which requires simply an attempted
marriage "in apparent compliance" with the requirements of Colorado law.
In addition to the valid (or apparently valid) Colorado common law marriage, the other
elements of § 3111.03(A)(3) are clearly satisfied. Robert acknowledged paternity in
a writing sworn to before a public notary (§ 3111.03(A)(3)(a)), and with his consent
had his name entered as the child's father on the child's birth certificate (Id. (A)(3)(b)).
Robert must accordingly be presumed to be Sheila's natural father under Rev. Code
§ 3111.03. This presumption, in turn, can only be rebutted by "clear and convincing
evidence" (§ 3111.03(B)).
The meaning of this standard in the context of § 3111.03 has not been discussed at
length by the Ohio courts. We believe that Ohio cases construing a similar presumption
— that a child born during a marriage is presumed to be the natural child of the married
couple — sheds some light, however, because this latter presumption also is rebuttable
only by "clear and convincing" evidence. Moreover, Rev. Code § 3111.03(A)(1) now expressly
addresses the situation formerly governed by Ohio common law of a child born to a
couple during their marriage. The statutory presumption that under such circumstances
the husband is the natural father is identical in wording to the statutory presumption
applicable to this case by virtue of the Colorado common law marriage entered into
after Sheila's birth (Compare Rev. Code § 3111.03(A)(1) with id.§3111.03(A)(3)). Both presumptions are rebuttable under the statute only by "clear
and convincing evidence." (Rev. Code § 3111.03(B)). The meaning of "clear and convincing"
evidence as construed by courts under Ohio common law under the circumstances now
governed by Rev. Code § 3111.03(A)(1) is therefore likely to be probative as to the
meaning of the identical phrase employed in the section of the statute, Rev. Code
§ 3111.03(A)(3), that governs this case.
Ohio cases make clear that "clear and convincing evidence" requires "more than a preponderance
[of evidence] . . . as required in most civil cases." State v. Clark, 144 Ohio St. 305, 58 N.E.2d 773, 776 (1944). The evidence must be "clear and satisfactory,"
although not necessarily "conclusive." Id. at 776. Where the standard has been discussed in cases involving the presumption of
paternity, the courts have stated that the "presumption is not to be rebutted by circumstances
which only create doubt and suspicion." Id.
The demanding nature of this standard is made clear by cases such as Nelson v. Nelson, 10 Ohio App.3d 36, 460 N.E.2d 653 (Ohio App. 1983). There a married couple had raised
for twelve years a child born during their marriage. During divorce proceedings, however,
the married couple stipulated that the husband was not the natural father of the child,
and the husband also filed an uncontested affidavit stating that he was not the father.
Citing the potential harm that would be worked by the illegitimation of a formerly
legitimate child, as well as the evil of "open[ing] the door to, in effect, 'shop
for a father,'" (460 N.E.2d at 655), the Court held such evidence insufficient to
rebut the presumption that the husband was the natural father. As the Court stated
(460 N.E.2d at 654-655):
The predominant rule at present is that, in order to rebut the presumption of legitimacy,
there must be 'clear and convincing' evidence that the husband is not the father .
The only evidence that the oldest child is illegitimate was the stipulation of the
parties and defendant's affidavit .... In this case, a stipulation and affidavit to
the contrary are insufficient as a matter of law to overcome the presumption that
a child conceived or born during a marriage is legitimate.
Similarly, in Walkup v. Walkup, 31 Ohio App.3d 248, 511 N.E.2d 119 (Ohio App. 1986), the Court addressed the presumption
under Rev. Code § 3111.03(A)(1) that a man is presumed to be the natural father of
a child born during his marriage, and that the presumption can only be rebutted by
"clear and convincing evidence" under § 3111.03(B). The defendant husband to avoid
child-support payments contended he was not the father of a child born during his
marriage. The evidence showed (1) that the child was born four years after the husband
had undergone a vasectomy; (2) that the married couple had had sexual relations without
utilizing contraception on an average of once per week for 3 1/2 years prior to the
conception of the child, with no resulting pregnancy; and (3) that the wife had had
sexual relations with a stranger to the marriage during the time the child was conceived.
The Court held that this evidence failed to satisfy the "clear and convincing" standard
required to rebut the presumption of paternity. Although plaintiff was shown to be
sterile several years after the conception occurred, no contemporaneous sterility
tests had been performed, and there was still the possibility that plaintiff was fertile
at that time because "vasectomies sometimes fail and . . . their effect may be reversible."
(511N.E.2d at 121). Accordingly, the husband "failed to prove by clear and convincing
evidence that he was not the child's father" (Id.).
In light of these precedents, we believe the facts of this case fail to rebut by "clear
and convincing" evidence the presumption under Rev. Code § 3111.03(A)(3) that Robert
is Sheila's father. A notarized statement dated June 16, 1982 denies that Robert is
the father, but Debra has now disavowed this statement and explained that it was made
only to avoid financial or other problems in the event the marriage was dissolved,
or that Robert died. Consistent with her earlier statement of June 14, 1982, Debra
still insists that Robert is the father. It is also noteworthy that the June 16, 1982
statement was never publicly disclosed or utilized. In contrast, the June 14 statement
identifying Robert as the father was publicly filed with the Colorado Bureau of Vital
Statistics to properly legitimate the child, and have Robert listed as the father
on the birth certificate. Most importantly, Robert represented that he was Sheila's
father, and unlike Debra, never executed an affidavit contradicting his acknowledgement
of paternity made on June 14, 1982. At best, the evidence therefore discloses a prior
inconsistent statement by the mother which she has subsequently recanted and explained;
numerous other statements by the mother confirming that Robert is the father which
she insists remain correct; and consistent statements and conduct by Robert supporting
the belief that he is the father. In light of the fact that uncontradicted affidavits
by both the mother and putative father in Nelson, supra, and evidence of the husband's vasectomy, and the wife's extramarital affair in Walkup,
supra, did not constitute "clear and convincing evidence" to rebut the presumption that
the husband was the father of the child, we believe that Debra's ambiguous, and subsequently
disavowed, denial that Robert was Sheila's father similarly falls short of the "clear
and convincing evidence" needed to rebut the presumption applicable in this case.
Although Debra's affidavit creates some doubt and suspicion, the fact that it was
recanted, and is inconsistent with much other evidence, falls short of "clear and
convincing" proof that Robert is not the father. State v. Clark, supra, 58 N.E.2d at 776.
Sheila is accordingly entitled to child's Benefits pursuant to Rev. Code § 3111.03(A)(3)
and 42 U.S.C. § 416(h)(2)(A). 
II. Entitlement Under Section 216(h)(3)(C)(i)(I) — Acknowledgment of Paternity In
In addition to the foregoing, we also believe that, although presenting a closer question,
Sheila should also be entitled to child's benefits under the alternative federal test
of Section 216(n)(3)(C)(i)(I), 42 U.S.C. § 416(h)(3)(C)(i)(I). That provision provides
that a claimant may receive child's benefits if (1) the claimant is the insured's
natural child; and (2) the insured acknowledged in writing that the claimant is his
child. (Id.; see also 20 C.F.R. § 404.355). We note that under this test, the concerns reflected in the
claims folder regarding proof of dependency or the insured's contributing to the claimant's
support are irrelevant because a child satisfying this test is automatically "deemed
dependent" with no need for any further proof. 42 U.S.C. § 402(d)(3); Trammel v. Bowen, 819 F.2d 167, 168-169 (7th Cir. 1987).
There is no doubt that the written acknowledgment portion of the test is satisfied
because the statute refers only to an acknowledgment by the insured, rendering Debra's
written statements irrelevant with respect to this portion of the test. This leaves
the question whether under the federal test Sheila should be found to have been the
natural child of Robert. Because the federal tests set forth an alternative to the
state law standards incorporated in 42 U.S.C. § 416(n)(2)(A), federal courts have
held that proof of paternity under the alternative federal tests should be governed
by a preponderance of the evidence standard.
E.g., Imani v. Heckler, 797 F.2d 508 (7th Cir. 1986) (rejecting use of state law under alternative federal
test of 42 U.S.C. § 416(h)(3)(C)(ii) requiring evidence of paternity "satisfactory
to the Secretary" coupled with proof that insured lived with, or contributed to support
of, the child); accord, Mobley v. Secretary of Health and Human Services, No. C82-1842, Slip Op. p. 3 (N.D. Ohio April 24, 1984) ("normal preponderance of
the evidence rule" applies to alternative federal test of 42 U.S.C. § 416(h)(3) (C)(ii)).
As the Seventh Circuit recently emphasized in a child's benefits case, Brown v. Bowen, No. 87-2501, Slip Op. p. 7 (May 12, 1988):
The preponderance standard is a more-likely-than-not rule, under which the trier of
fact rules for the plaintiff if it thinks the chance greater than 0.5 that the plaintiff
is in the right.
In this case, the evidence weighing against Robert's paternity is Debra's notarized
statement of June 16, 1982. The weight of this evidence is significantly undermined
by Debra's earlier notarized statement of June 14, 1982 that Robert is the father,
as well as Debra's current statements to the same effect. Perhaps most importantly,
Robert never waivered on this issue, and repeatedly stated that Sheila was his child,
both in his filing with the Colorado Bureau of Vital Statistics, as well as with the
Ohio Welfare Department. Moreover, Robert's and Debra's marriage very shortly after
Robert's divorce from Laura supports the inference of Robert's prior involvement with
Debra. Finally, Robert's actions to declare Sheila as his child appear inexplicable
and without sufficient motive unless Sheila were in fact his child; Debra in contrast
has explained at least somewhat plausibly that she executed the statement denying
paternity to avoid legal complications in the event of Robert's death, or a divorce.
In any event, whatever thinking or confusion produced the June 16, 1982 statement
denying Robert's paternity, it is significant not only that Debra has now disavowed
it, but that the statement was also never used and that the prior sworn representations
filed with public offices, including the Colorado Bureau of Vital Statistics, were
allowed to stand by both Robert and Debra.
In light of all the foregoing, we believe that, although the issue is close, the present
evidence contained in the file is sufficient to establish Robert's paternity by a
preponderance of the evidence, and that, at a minimum, such a finding would be reasonable
based on these facts, if not absolutely compelled. Accordingly, Sheila should also
be entitled to child's benefits under 42 U.S.C. § 416(h)(3)(C)(i)(I).