On July 29, 2002, you asked our advice as to whether there is sufficient evidence
to establish a parent-child relationship between Brandon M. G~ (G~), the deceased
number holder, and twin children, London M. G~ (London) and Brandon M. G~ (Brandon).
Additionally, if a parent-child relationship can be established, you asked for the
effective date of that relationship and whether retroactive benefits can be paid.
We have reviewed the material you provided and have researched the relevant provisions
of Virginia law as it pertains to paternity. Based on our research, it is our opinion
that a parent-child relationship was established between G~ and both referenced children,
effective February 14, 2002. Thus, retroactive benefits should be allowed from February
G~ died on August 3, 2001, in the state of Virginia. On June 3, 2002, Carla L. M~
(Carla) filed an application on behalf of her twin sons London and Brandon (date of
birth November 24, 2001) for surviving child's benefits based on G~'s account. Along
with this application, Carla submitted evidence including the results of DNA testing,
the birth certificates of the referenced children, and several written statements.
1. DNA Evidence
Carla submitted the results of DNA tests performed on February 14, 2002, utilizing
samples of G~'s DNA which had been kept on file by the military during G~'s period
of service. G~'s DNA was compared to the DNA of both London and Brandon with the following
results: the probability that G~ was the father of London was 99.98%; the probability
that G~ was the father of Brandon was 99.99%.
2. Other Evidence
G~ and Carla were never married. Carla was actually married to another man (Marwan
T. G~) during the entire period of her pregnancy. However, Carla submitted a statement
indicating that she and G~ had resided together from December 2000 through the date
of G~'s death in August 2001. While no evidence was submitted to support this statement,
there is also nothing in the file to contradict the allegation.
London's birth certificate does not identify a father, but lists G~'s date of birth
in the relevant location. Brandon's birth certificate does not identify a father.
In addition, neither child's application for a Social Security Number includes the
identity of the father.
A statement completed by Carla and submitted with the applications filed on behalf
of London and Brandon indicates that G~ made an allotment for both children while
serving in the military, made oral admissions of paternity of both children, and made
regular and substantial contributions to their support. There is no indication in
the documentation as to whether supporting evidence was offered for these averments.
A second statement submitted with the applications reiterates that G~ resided with
Carla for the relevant time period and that G~ admitted paternity to his family and
his commanding officer. This statement adds that G~ also attended medical appointments
with Carla during her pregnancy.
You have indicated that no supporting evidence was submitted to prove these averments.
Finally, a report of contact made with G~'s mother, Diane G~ (Diane), states that
G~ told Diane of Carla's pregnancy. Diane did not know whether G~ and Carla had ever
In determining entitlement to surviving child's benefits, the Commissioner shall apply
the inheritance laws of the state in which the insured had his permanent home at the
time that he died. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1) (2001). A child
born out of wedlock in Virginia will only be deemed legitimate by the subsequent intermarriage
of the mother and father. Va. Code. Ann. § 20-31.1; Program Operations Manual System (POMS) GN 00306.055. Under Virginia law, however, a child born out of wedlock may inherit from a decedent's
estate based upon a showing that the decedent is the father of the child. Va. Code
Ann. § 64.1-5.1. Evidence that a man is the father of a child born out of wedlock
shall be clear and convincing and may include, among other things, evidence that he
cohabited with the mother during all of the ten months immediately prior to the time
the child was born, a voluntary admission of paternity in writing and under oath,
and/or the results of scientifically reliable genetic tests, including DNA tests,
weighted with all the evidence. Va Code Ann. § 64.1-5.2 (1), (6), (7). With regard
to genetic testing, another section of the Virginia Code, pertaining to domestic relations
proceedings, provides that blood test results that affirm at least a 98% probability
of paternity are sufficient to establish a parent-child relationship. Va. Code Ann.
§ 20-49.1(B)(1). See also Veeney ex rel. Strother v. Sullivan, 973 F.2d 326 (4th Cir. 1992) (holding that blood test evidence should be considered
in addition to all other probative evidence in determining the putative father's paternity
for purposes of awarding Social Security benefits).
In this case, based on the facts you provided us, we believe there is clear and convincing
evidence that G~ is the father of both London and Brandon. The unrebutted DNA test
results, which utilized actual samples from G~ and the two children, sufficiently
establish that there is at least a 99.98% probability that G~ is the biological father
of both children. In addition, there is other evidence that supports a conclusion
of paternity between G~ and the children. The unrebutted evidence contained in the
relevant documentation indicates that G~ lived with Carla through the date of his
death, a time period which included several months of Carla's pregnancy, even though
she was married to another man at the time. Though not made in writing or under oath,
we have inferred that G~ made an admission of paternity to his family as evidenced
by his conversation with his mother advising her of Carla's pregnancy. G~ apparently
made regular contributions to the financial support of the children, and both children
use G~'s surname. One of the children also shares his first name. Finally, at least
one twin's birth certificate makes reference to G~'s date of birth in a location specifically
designated for the father's date of birth. Even though none of these other items of
evidence, standing alone, is sufficient to meet the specific statutory requirements
of section 64.1-5.2 of the Virginia Code, when they are considered in conjunction
with the results of the DNA testing, we believe a Virginia Court would rule that there
is clear and convincing evidence of paternity in this case. See Jones v. Eley, 256 Va. 198, 200-02 (1998) (holding that evidence, such as voluntary admissions
of paternity made by the putative father to family members and contributions made
by the putative father to the financial support of the children, was sufficient to
establish a parent-child relationship between the putative father and the children
even without DNA evidence); Wyatt v. Virginia Dept. of Soc. Serv., 11 Va. App. 225, 229-30 (1990) (holding that the presumption of legitimacy of a
child born in wedlock was overcome by clear and convincing evidence, including DNA
test results, that proved a man other than the biological mother's husband was the
biological father of the child in question).
Thus, based on the information you have provided, it appears likely that a Virginia
court would find G~ to be the father of both London and Brandon under its inheritance
Regarding the effective date of the parent-child relationship, the POMS GN 00306.055 directs that where a state law confers inheritance rights based on an adjudication
of paternity (but does not legitimate the child), and the provision is effective prospectively
only, the claimant's status as the nameholder's child is established effective with
the following dates:
if more than one piece of evidence is needed to satisfy the applicable standard of
proof, the date of the latest necessary piece of evidence;
POMS GN 00306.055. Since, as stated above, Virginia law confers inheritance rights based on an adjudication
of paternity, but does not legitimate the child, and the DNA test was the latest necessary
piece of evidence establishing paternity under Virginia law, the parent-child relationship
is effective February 14, 2002, the date of the DNA test.
Finally, the regulations provide that, if the insured is deceased, the child is entitled
to benefits beginning with the first month covered by the application in which he
meets all other requirements for entitlement. 20 C.F.R. § 404.352(a)(1). The regulations
provide that a child may receive retroactive benefits for up to twelve months preceding
the date of his application. 20 C.F.R. § 404.621(a). However, benefits can only be
paid from the first month that all requirements for entitlement are met. 20 C.F.R.
§§ 404.620(a)(1), .621(a). In this case, the application date is June 3, 2002, approximately
four months after completion of the DNA testing on February 14, 2002. Accordingly,
retroactive benefits should be paid in this case from February 14, 2002, forward.
For the reasons stated above, it is our opinion that the DNA testing performed in
this case between G~ and the referenced children, combined with the other evidence
submitted by the applicant, is sufficient to establish a parent-child relationship
between G~ and both London and Brandon. Therefore, we believe there is clear and convincing
evidence of a parent-child relationship between Brandon M. G~ and twin children, London
M. and Brandon M. G~, effective February 14, 2002. Finally, we believe that benefits
should be paid retroactive to February 14, 2002.
James A. W~
Regional Chief Counsel
Amy E. N~
Assistant Regional Counsel