TN 4 (04-07)
PR 01210.027 Mississippi
A. PR 07-110 Use of a State Court Order to Establish Paternity Under Mississippi Law
DATE: April 4, 2007
Under Mississippi law, the amendment of a father's name on a birth certificate only creates a rebuttable presumption that the number holder had acknowledged the child or that a valid court order had established the child's paternity. If the facts of the case rebut that presumption; that is, they establish that neither acknowledgement nor a court determination of paternity took place, no parent-child relationship should be found to exist.
After number holder Howard J~ (NH) died, a Mississippi court ordered the amendment of a child's birth certificate to show NH as the father and allowed the child to assume NH's last name. The court order was based solely on representations by the child's mother. You asked whether the amended birth certificate can establish the child as NH's child for child's insurance benefits purposes, notwithstanding the minimal factual basis of the court order, and the lack of any actual written acknowledgement by the number holder.
We do not believe the facts presented would establish the child's paternity under Mississippi law. The amendment of the birth certificate only created a rebuttable presumption that NH had acknowledged the child or that a valid court order had established the child's paternity. In this case, the underlying facts rebut the presumption created by the amendment. NH died ten years before the amendment of the birth certificate, and all parties agree NH did not acknowledge the child in writing. Moreover, the court order, here, does not require deference by the Social Security Administration (SSA), because there is no evidence that the issue of paternity was contested before the court. Furthermore, a simple finding of paternity does not legitimate a child under Mississippi law, and the child does not meet the requirements for inheriting from the number holder under Mississippi intestacy law.
According to the facts you supplied, Umeka L~ (Child) was born to Bobby W~, now Bobby F~ (Mother), out of wedlock on November 4, 1991. The birth certificate originally showed James Earl L~ as the father. Mother and NH married on August 3, 1992, and divorced on October 22, 1992. The divorce decree stated no children were born to the parties as a result of the marriage. NH died domiciled in Mississippi on August 12, 1995. DNA evidence showed on October 31, 2005, that James Earl L~ was not Child's biological father. On June 29, 2006, the Chancery Court of Bolivar County, Mississippi, issued an order amending Child's birth certificate to show NH as the father and allowing a change of Child's last name to that of NH. The order, entitled "Order Allowing Name Change," does not mention inheritance rights. The order cites as a basis for its ruling "testimony of the Natural Mother corroborating the favorable legal purposes." On July 17, 2006, Mother filed for benefits on behalf of Child as NH's child and for herself as divorced mother. On July 20, 2006, Mother signed a statement indicating the only oral acknowledgement of paternity by NH she knew of was that NH may have told his son, but she was not sure. On October 30, 2006, Mother denied any knowledge of a written acknowledgement by NH that Child was his biological child.
SSA denied Mother's application initially, but upon reconsideration allowed the claims, citing POMS GN ATL00306.120.B, and stating that "based on court ordered change to the name of the father on the MS B/C the NH is presumed to have given his written acknowledgement."
For purposes of child's survivor's benefits under Section 202(d) of the Social Security Act (Act), 42 U.S.C. § 402(d), a child is defined as the child, adopted child or stepchild of an insured individual. See Act § 216(e), 42 U.S.C. § 416(e). In determining whether an applicant born out of wedlock is the child of a fully insured individual, the Commissioner will apply the law that would be applied in determining the devolution of intestate property by the courts of the state in which the insured was domiciled at the time of his death. See Act § 216(h)(2)(A), 42 U.S.C. § 416(h)(2)(A). Alternatively, an applicant may establish child status, regardless of the status under state law, under Section 216(h)(3) of the Act, by showing she is a natural child of the number holder and one of the following: (1) the number holder acknowledged in writing that the claimant is his child; (2) a court decreed the number holder to be the father of the claimant; (3) the court ordered the number holder to contribute to the support of the claimant; or (4) the number holder is the father and was living with or contributing to the support of the claimant when the number holder died; and the acknowledgement, court order, or decree must be made before the death of the insured individual. See Act § 216(h)(3), 42 U.S.C. § 416(h)(3). Under Social Security Ruling (SSR) 83-37c, the Agency is not bound by a State trial court's determination to which it was not a party. However, the Agency cannot ignore the decision if all four of the following prerequisites are met: "(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 interests; (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. See also Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973).
From the facts presented, it would appear that none of the Section 216(h)(3) provisions apply, because the court order occurred after NH's death, Mother specifically denied the existence of a written acknowledgement of paternity by NH, and there is no evidence that NH was living with or contributing to the support of Child when he died. Moreover, SSA deference to the court order is not required under SSR 83-37c, because the issue of Child's paternity was not genuinely contested before the State court by parties with opposing interests. Indeed, the court explained it based its decision solely on Mother's testimony.
However, the reconsideration determination states that the court order creates a presumption of a written acknowledgement, citing POMS GN ATL00306.120.B. The reconsideration allowance did not apply the POMS correctly in this case. It says an amended birth certificate creates a rebuttable, not a conclusive, presumption that there is a valid written acknowledgement or court order. It includes the following "CAUTION: The presumption should be applied only after all the facts in a given case have been thoroughly reviewed. That is, if the facts indicate that a written consent or a court order does not exist, do not apply the presumption." POMS GN ATL00306.120.B. Here, the mother denied the existence of a written acknowledgement, and the court stated that the mother's representations, not any acknowledgement by NH or any genuine exploration of the paternity issue by parties with opposing interests, was the basis for its decision.
Other possible routes for establishing child status in this case are legitimation, which confers inheritance rights under the intestacy law of all states, and inheritance rights for an illegitimate child under state intestacy law. See Act § 216(h)(2)(A), POMS GN 00306.001, GN 00306.050, GN 00306.055. The POMS section for Mississippi intestacy laws, GN 000306.535, and our research indicate that a finding of paternity after death does not legitimate the child.
Furthermore, the Mississippi Code states, "An illegitimate child shall become a legitimate child of the natural father if the natural father marries the natural mother and acknowledges the child." MISS. CODE ANN. § 91-17-1(2) (2007). Here, NH did marry Mother, but no acknowledgement has been established. The Mississippi courts have held that the "evidence to support a finding of acknowledgment of paternity should be clear, convincing, and unambiguous." Harper v. Harper, 300 So. 2d 132, 133 (Miss. 1974) (citing Hulitt v. Jones, 72 So. 2d 204, 206 (Miss. 1954)). In a case where the evidence of acknowledgement consisted of a man's inquiries to the mother about "the baby" and letters to the child signed "from Dad," the Supreme Court of Mississippi held that the evidence was insufficient to establish paternity. Harper v. Harper, 300 So. 2d 132, 133 (Miss. 1974). Here, the evidence is even more tenuous. The "clear and convincing evidence" must be something other that the adjudication itself, since the "clear and convincing evidence" is listed as a separate requirement.
Therefore, the only remaining route for establishing child status is inheritance rights for illegitimates under Mississippi intestacy law.
The Mississippi intestacy provisions allowing illegitimate children to inherit from the father state as follows:
An illegitimate shall inherit from and through the illegitimate's natural father and his kindred, and the natural father of an illegitimate and his kindred shall inherit from and through the illegitimate according to the statutes of descent and distribution if:
(a) The natural parents participated in a marriage ceremony before the birth of the child, even though the marriage was subsequently declared null and void or dissolved by a court; or
(b) There has been an adjudication of paternity or legitimacy before the death of the intestate; or
(c) There has been an adjudication of paternity after the death of the intestate, based upon clear and convincing evidence, in an heirship proceeding under Sections 91-1-27 and 91-1-29. However, no such claim of inheritance shall be recognized unless the action seeking an adjudication of paternity is filed within one (1) year after the death of the intestate or within ninety (90) days after the first publication of notice to creditors to present their claims, whichever is less; and such time period shall run notwithstanding the minority of a child. This one-year limitation shall be self-executing and may not be tolled for any reason, including lack of notice.
MISS. CODE ANN. § 91-1-15(3) (2006). The only relevant provision is (c), but Child does not meet the criteria for several reasons. The change of birth certificate was not in an heirship proceeding, but rather on a petition for change of birth certificate. Second, the court order makes no mention of heirship. Third, the proceedings under Sections 91-1-27 and 91-1-29 have notice requirements to other heirs and next of kin which were not met in this case, so the adjudication was not an heirship proceeding. See MISS. CODE ANN. §§ 91-1-27, 91-1-29 (2007) Fourth and finally, the adjudication was not made on clear and convincing evidence, as discussed above. Thus, Child cannot inherit from NH under Mississippi intestacy laws.
The regulations allow the Agency to reopen and correct the reconsideration determination: "We may reopen a final determination or decision on our own initiative . . . ." 20 C.F.R. § 404.987 (b)(2006). The Agency may reopen within one year for any reason and within four years for good cause. 20 C.F.R. § 404.988 (2006). Good cause includes situations where "evidence that was considered in making the determination or decision clearly shows on its face than an error was made." 20 C.F.R. § 404.989(a)(3) (2006). The reconsideration determination occurred on October 2, 2006. Since the evidence in this case clearly shows on its face that the presumption of a written acknowledge was in error, the "good cause" standard is met, and the Agency may reopen at any time up to October 2, 2010. Furthermore, even if the evidence fell below the "good cause" standard, the Agency could reopen the reconsideration determination at any time up to October 2, 2007.
The reconsideration determination was in error because Child does not qualify as the child of NH for the purposes of child's survivor's benefits. The reconsideration determination may be reopened at any time up to October 2, 2010, to correct the error.
Very truly yours,
Mary Ann S~
Regional Chief Counsel
Assistant Regional Counsel