You have requested our opinion as to when Tamika M. N~ (Tamika) acquired the status
of being the "child" of deceased number holder (NH) Greg K. R~, SSN ~, for purposes
of an award of child's insurance and lump-sum death benefits under Title II of the
Social Security Act. For the reasons stated below, we believe Tamika would be considered
the NH's child as of the date of her birth.
Facts. Based on your memorandum and the copies of documents you have provided, we
find the relevant facts of this matter to be as follows. The NH died on August 10,
1999, while domiciled in North Dakota. Subsequently, on January 16, 2000, Tamika was
born to Carrie A. N~ (Carrie), who was unmarried. The original birth certificate did
not name a father.
In March 2000, the North Dakota Child Support Enforcement Division began actions to
determine paternity of Tamika. The NH's parents, Sharon M. and Larry L. R~, voluntarily
submitted samples. The Long Beach Genetics, Inc., laboratory testing report dated
April 20, 2000, indicated a 99.83 percent probability the NH's parents, Sharon and
Larry R~, were the paternal grandparents of Tamika. Although the NH had three living
brothers, Carrie never dated them. Based on the test results, the District Court in
Stutsman County, North Dakota, issued a "Findings of Fact, Conclusions of Law and
Order for Judgment" on July 6, 2000, finding that the NH was Tamika's father and ordered
the amendment of the birth certificate to show such. The birth certificate was amended
per the court's order on July 10, 2000.
Discussion. As pertinent here, section 216(h)(2)(A) of the Social Security Act, 42
U.S.C. § 416(h) (2)(A), provides that an applicant for child's insurance benefits
will be deemed a child of the deceased wage earner if she would be entitled to inherit
under the intestacy laws of the state in which the wage earner was domiciled at the
time of his death. Since the NH was living in North Dakota when he died, on August
10, 1999, North Dakota intestacy law applies.
North Dakota law of intestate succession provides that "an individual is the child
of its natural parents regardless of the marital status of its parents. The parent
and child relationship may be established under [the Uniform Parentage Act, chapters
14-17 of title 14, N.D. Cent. Code (1999)]." N.D. Cent. Code (N.D.C.C.) § 30.1-04-09(3).
Under N.D.C.C. § 14-17-14(1), an "order of the court determining the existence or
nonexistence of the parent and child relationship is determinative for all purposes."
Thus, apparently the testing of NH's parents to establish paternity is sufficient
because the Stutsman County District Court relied on such testing in determining the
paternity of Tamika. Paragraph 2 of N.D.C.C. § 14-17-14 states that if the court's
order varies from the child's birth certificate, "the court shall order that an amended
birth registration be made under section 14-17-22," as was done here. In addition,
"[t]he fact that the father and child relationship was declared after the child's
birth may not be ascertainable from the amended birth registration . . . ." N.D.C.C.
§ 14-17-22(2). Thus, Tamika should be considered the NH's child as of the date of
In sum, based on the court's order regarding Tamika's paternity and the above-described
statutes, we conclude that Tamika's status as the child of the NH dates back to her
birth on January 16, 2000, even though the actual paternity determination was not
made until April 20, 2000, and the court entered an order of paternity on July 6,
We are also confident that the Long Beach Genetics, Inc., laboratory is properly accredited
for paternity testing and therefore the test results may be accepted as reliable.
Aside from the fact that the State of South Dakota itself relied upon the test results
in naming NH as Tamika's father, this laboratory has been accredited by the American
Association of Blood Banks (AABB), which is the primary accreditor of parentage-testing
laboratories. See State of Montana v. Weeks, 891 P.2d 477, 488 (Mont. 1995).