This case was referred to this Office to address the correctness of the dismissal
of Jamal D~'s June 1999 claim as a surviving child, and whether reopening would be
appropriate. We were also asked whether the Wisconsin circuit court order of paternity
is binding under the criteria set forth in Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973). We believe that the October 2004 Wisconsin circuit
court order of paternity is not binding under Gray v. Richardson, because it fails to meet the requirement that the finding of paternity be "genuinely
contested" by a party with an opposing interest (in this case, the number holder's
estate). Furthermore, we believe that this order was not based on meaningful evidence
of paternity, such that it would meet the clear and satisfactory preponderance standard,
as required in Wisconsin. Moreover, it does not appear that there is sufficient evidence
in the record to establish paternity. Therefore, we believe that the issue of reopening
is moot, since no evidence existed at any point to establish paternity by any meaningful
According to the file, Jamal D~ was born on August 9, 1988. Phillip D~, the putative
father, died on June 18, 1990. On May 30, 1991, Marion M~, Jamal's mother, applied
for child's insurance benefits ("CIB") based on Phillip D~'s earnings. That claim
was denied on July 29, 1991, because the evidence submitted did not establish a parent-child
relationship. Marion M~ appealed that denial to the Appeals Council, and in federal
district court. On February 1, 1999, Ms. M~'s complaint on behalf of Jamal D~ was
dismissed with prejudice by the district court. Ms. M~ filed another claim for CIB
in June 1999. That claim was initially dismissed because it was thought that the district
court action was still pending. A reconsideration request filed in January 2000 was
denied because no new evidence was submitted. On October 26, 2004, Ms. M~ obtained
a Wisconsin circuit court order finding that Phillip D~ was Jamal D~'s father. On
March 1, 2005, Ms. M~ filed a third claim for CIB, which is currently pending.
Generally, a claimant's status as a "child" of a number holder for the purposes of
CIB entitlement can be established, if that child has inheritance rights under the
intestacy law of the applicable State. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1); POMS GN 00306.055. In this case, we apply Wisconsin law, because Phillip D~ died domiciled in Wisconsin.
See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(4); POMS GN 00306.001 (c)(2)(a) (to determine a parent/child relationship, we apply the intestacy law of
the State where the number-holder was domiciled at time of death).
The Wisconsin intestacy statute provides that "[a] nonmarital child or the child's
issue is entitled to take in the same manner as a marital child by intestate succession
. . . from and through his or her father" if any of the following applies:
(a) The father has been adjudicated to be the father in a paternity proceeding . .
. or by final order or judgment of a court of competent jurisdiction in another state
(b) The father has admitted in open court that he is the father
(c) The father has acknowledged himself to be the father in writing signed by him.
Wis. Stat. Ann. § 852.05(1).
In this case, Jamal's mother obtained an Order of Paternity in a Wisconsin circuit
court in October 2004, finding that Phillip was Jamal's father. The question therefore
becomes whether SSA is bound by the Wisconsin court finding, in determining Jamal's
relationship to Phillip.
A. Gray v. Richardson does not bind the Agency in regards to the Wisconsin circuit court Order of paternity.
Gray v. Richardson, 474 F.2d 1370, adopted as Social Security Ruling ("SSR") 83-37c, provides that the
Agency is not "free to ignore an adjudication of a State trial court where the following
prerequisites are found:
(1) an issue in a claim for Social Security benefits previously has been determined
by a State court of competent jurisdiction;
(2) this issue was genuinely contested before the State court by parties with opposing
(3) the issue falls within the general category of domestic relations law; and
(4) the resolution by the State trial court is consistent with the law enunciated
by the highest court in the State." SSR 83-37c.
The court in Gray emphasized the importance of the need for a contested proceeding, and highlighted
this factor as a controlling one in determining whether the Agency was bound by a
State court decision. See Gray, 474 F.2d 1370, 1373. In this case, the Wisconsin action was clearly uncontested.
According to the file, the personal representative of the estate of Phillip D~ was
duly served with notice of the hearing, but did not appear for the hearing in family
court. The fact that the trial court's decision was ex parte seems dispositive. See id.
In addition, the Agency is not bound by this decision because the trial court's order
is inconsistent with Wisconsin law. The trial court expressly stated in its order
that the paternity decision was based solely on the testimony of the child's mother
and the allegations in her petition. See Oct. 26, 2004 Order, at Par. 2. As discussed below, this finding is not consistent with the evidentiary
standard typically applied by Wisconsin courts in paternity cases.
While the Gray doctrine does not require the Agency to find that Jamal is Phillip's child, the Agency
must still make a determination as to whether Phillip is the father. The issue then
becomes whether there is enough evidence in the record for the Agency to make a finding
of paternity, based on Wisconsin paternity law.
B. There is insufficient evidence in the record to find that Phillip D~ is the father
For SSA purposes, Jamal can still be entitled to CIB if he can establish Phillip's
paternity, using the standard of proof that a Wisconsin court would apply. See 20 C.F.R.404.355(b)(2) ("[I]f applicable State inheritance law requires a court determination
of paternity, we will not require that you obtain such a determination but will decide
your paternity by using the standard of proof that the State court would use as the
basis for a determination of paternity").
Wisconsin law requires that the party attempting to establish paternity prove the
issue by "clear and satisfactory preponderance of the evidence." WIS. STAT. ANN. §
767.47(8) (West 2001). Wisconsin courts have not clearly defined the "clear and satisfactory
preponderance" standard, but have described it as something more than a preponderance
of the evidence, but which does not require the fact-finder to be convinced beyond
a reasonable doubt. See State ex rel. Brajdic v. Seber, 193 N.W.2d 43, 44-45 (Wis. 1972) (discussing clear and satisfactory preponderance);
see also POMS GN
How this standard is applied in the paternity context is even less clear. Under Wisconsin
law, the following factors may be considered:
(a) Evidence of sexual intercourse between the mother and alleged father at any possible
time of conception or evidence of a relationship between the mother and alleged father
at any time.
(b) An expert's opinion concerning the statistical probability of the alleged father's
paternity based upon the duration of the mother's pregnancy.
(c) Genetic test results. . . .
(d) The statistical probability of the alleged father's paternity based upon the genetic
(e) Medical, scientific or genetic evidence relating to the alleged father's paternity
of the child based on tests performed by experts.
(f) All other evidence relevant to the issue of paternity of the child . . . [with
some exceptions, none of which are relevant here].
WIS. STAT. ANN. § 767.47(1). While the 1972 Brajdic decision shows that a mother's testimony that she had intercourse with the putative
father during the possible time of conception is considered extensively (category
(a) above), we believe that Wisconsin's current statutory scheme relies heavily on
scientific evidence as well. As one Wisconsin court stated, these factors reflect
a determination by the Wisconsin legislature that scientific evidence, and expert
testimony based upon such evidence, should play a significant role in paternity findings.
See In re Paternity of Lily R.A.P., 565 N.W.2d 179, 186 (Wis. App. 1997). Furthermore, it is a common practice in Wisconsin
to order genetic testing of a putative father in these proceedings. See WIS. STAT. ANN. § 767.48(1)(a); see also WIS. STAT. ANN. § 767.48(1m) (a rebuttable presumption of paternity is created where
genetic testing shows 99% or greater probability that tested individual is the father).
The lack of scientific testing undertaken in this case seems to weigh against a finding
of paternity by a clear and satisfactory preponderance of the evidence. Pursuing genetic
testing may be more difficult in posthumous cases, but is not impossible. In a prior
opinion, we discussed a posthumous paternity case where genetic testing of the putative
father's siblings indicated a 99.999% probability of paternity. See Memorandum from Acting Reg. Chief Counsel, Chicago, to Asst. Reg. Comm.-MOS, Chicago,
Entitlement to Child's Benefits Based on DNA Testing of Siblings of Deceased Number
Holder in Wisconsin (Oct. 25, 2000). And, as we indicated in that opinion, we believe that Wisconsin
courts would consider such evidence admissible and probative.
While we do not believe that Wisconsin courts require genetic testing to find paternity, we note that in this case, there appears to be
no evidence of any kind supporting a finding of paternity. We do not have the actual
petition, but the circuit court's order indicates that its finding was based solely
on the allegations of Ms. M~. No other evidence of paternity is contained in the record,
other than an affidavit by Adam B~, Phillip D~'s attorney and "close friend," stating
that he believed Phillip to be Jamal's father (and there is no evidence that this
affidavit was before the Wisconsin circuit court). In this context, we believe there
is insufficient evidence to meet Wisconsin's evidentiary standard, an opinion which
was held even by Ms. M~'s attorney, who admitted on the record during a hearing that
"…if we cannot get the Social Security Administration to apply Illinois law, we can't
meet the Wisconsin burden." See Transcript of Oct. 21, 1992 Hearing before ALJ Delbert Remington, 6.
Based upon the foregoing facts, we believe it unlikely that a Wisconsin court could
properly find that Phillip was Jamal's father by "clear and satisfactory preponderance
of the evidence." Accordingly, Jamal is not entitled to CIB because he is not eligible
to inherit as one of Phillip's children under Wisconsin's intestacy law.
C. Reopening of the June 1999 claim is unnecessary.
As a final matter, you asked whether it was necessary to reopen Jamal's June 1999
claim for benefits, as it was incorrectly dismissed at the initial determination level.
We believe this inquiry is unnecessary, based on the discussion above. Whether the
Agency considers Jamal's June 1999 claim, or his March 2005 claim, there is no basis
for an award of CIB. Therefore, the issue of reopening is moot.
Moreover, while the initial June 1999 claim may have been improperly dismissed, Jamal's
claim was reconsidered in January 2000. At that time, the Agency fully considered
the evidence presented, which as the Agency noted, was not new or materially different
from the evidence presented in the initial claim. See Reconsideration Determination Letter, from Asst. Reg. Comm.-PCO (Mar. 27, 2000).
Therefore, no harm resulted from any initial error.
While a Wisconsin circuit court made a finding of paternity in this case, we do not
believe the order is binding under Gray v. Richardson, and the record does not seem to contain sufficient evidence to otherwise establish
paternity. The current pending claim for CIB should therefore be denied. Given this
denial, it is unnecessary to consider reopening of Jamal's June 1999 claim, since
the same evidence was considered in the January 2000 reconsideration denial. Jamal's
file is returned for further processing. Please feel free to contact this office for
any further questions or concerns.
Kim L. B~
Regional Chief Counsel
Office of the General Council, Region V
Assistant Regional Counsel
Encl: Claims Folder, ~