On September 30, 2011, you requested an opinion as to whether a parent-child relationship
existed between the deceased NH and Izaiah, a minor, in light of a court order from
the Court of Common Pleas of Lancaster County, Pennsylvania, dated June 10, 2008,
finding that the NH was the father of Izaiah. You also asked if a parent-child relationship
can be established, what is the effective date of the relationship. For the reasons
stated below, we conclude that no parent-child relationship existed between the NH
Based on our analysis under section 216(h)(2)(A) of the Social Security Act, we believe
a court would not find clear and convincing proof that a parent-child relationship
existed between the NH and Izaiah under South Carolina intestacy law. In addition,
we believe a parent-child relationship also cannot be established under alternative
sections of the Act. Furthermore, although the Court of Common Pleas in Lancaster
County Pennsylvania issued an order on
June 10, 2008, finding that the NH was the father of Izaiah, we conclude SSA should
not give deference to this order because it does not satisfy the requirements set
forth in Social Security Ruling (SSR) 83-37c.
Izaiah's mother, Kaila, gave birth to Izaiah on September . There is no father listed
on Izaiah's birth certificate or under Izaiah's social security number in SSA's “Master Files of Social Security Number (SSN) Holders and SSN Applications” (Numident) system of records. Kaila was not married to the NH. Although Kaila alleged
that, when she was seven months pregnant with Izaiah, the NH acknowledged to her via
telephone that he was Izaiah's father, she admitted that she has no written documentation
where the NH admitted he was Izaiah's father.
On June 10, 2008, prior to the NH's death, the Court of Common Pleas in Lancaster
County, Pennsylvania, issued a court order finding the NH to be the father of Izaiah
as authorized by Pennsylvania statute 23 Pa. Con. Stat. Ann. §4342(e) (West 2010).
This statute provides for expedited procedures for the determination of paternity
and the determination of enforcement and support. Id. at § 4342(a). Importantly, this statute states, in pertinent part, that “[T]he court shall enter a default order establishing paternity and enforcing support
upon a showing that the defendant has been properly served and has not appeared.” Id. at § 4342(e). Kaila asserted that the court's order “was simply based on her story and the fact [that the NH] did not show up for court
and refute the allegations of paternity.” SSA-533 form, p. 3.
On November 24, 2009, the NH filed an application for disability insurance benefits
and stated that he had no children under the age of 18. Subsequently, the NH died
on January 13, 2010, and, at the time of his death, was domiciled in South Carolina.
On September 6, 2011, Kaila filed applications on Izaiah's behalf for child's insurance
benefits (CIB) and the lump sum death payment on the NH's earnings record.
Analysis of Parent-Child Relationship Under Section 216(h)(2)(A) of the Social Security
Act and South Carolina Intestacy Law  Section 216(e)(1) of the Act defines “child” as 1) the child or legally adopted child of an insured, or 2) a stepchild if, in
the case of a deceased insured, he has been a stepchild for not less than nine months
immediately preceding the day on which the insured died. 42 U.S.C. § 416(e)(1). A
claimant may show he is “the child” of a deceased insured individual, within the meaning of section 216(e)(1), under
sections 216(h)(2)(A) or 216(h)(3)(C) of the Act. Under section 216(h)(2)(A), a claimant
is considered the “child” of an insured individual, if the claimant could inherit the insured individual's
intestate personal property under the law of the State in which the insured individual
was domiciled when he died.  The Secretary “shall” apply the intestacy law of the state where the NH was domiciled at the time of his
death in order to determine if the child can inherit personal property from an intestate
NH. 42 U.S.C. § 416(h)(2)(A).
According to the information provided, the NH died while domiciled in South Carolina.
Therefore, we look to South Carolina intestacy law to determine whether Izaiah is
the NH's child for the purposes of section 216(h)(2)(A) of the Act. South Carolina
intestacy law entitles an individual's issue to a share of the individual's intestate
estate. See S.C. Code Ann. § 62-2-103 (2010),
Program Operations Manual System (POMS) PR 01215.045A (PR 11-090). “Issue” includes all lineal descendants with the relationship of parent and child at each
generation determined by the definitions of child and parent contained in the South
Carolina Probate Code. See S.C. Code Ann. § 62-1-201(21), POMS PR 01215.045A (PR 11-090). For the purposes of intestate succession, a person born out of wedlock
can establish a parent-child relationship with his father if “the paternity is established by an adjudication . . . if commenced after his death,
by clear and convincing proof.” S.C. Code Ann. § 62-2-109(2)(ii) (time restrictions omitted), POMS PR 01115.045A (PR 08-152); see also 20 C.F.R. § 404.355(b)(2) (stating SSA will not apply any State inheritance law requirement
that an action to establish paternity must be commenced within a specified period
after the worker's death). Clear and convincing evidence is defined under South Carolina
law as “an intermediate standard of proof, more stringent than ‘preponderance of the evidence’
but less than ‘beyond a reasonable doubt.’” POMS PR 01115.045B (PR 07-186).
Under South Carolina law, family court proceedings to determine the paternity of an
individual may constitute an adjudication of paternity for purposes of state intestacy
determinations. See Neely v. Thomasson, 618 S.E.2d 884, 888 (S.C. 2005). The following evidence is admissible at a hearing
to determine paternity: 1) the results of genetic tests; 2) refusal of a party to
submit to a genetic or other ordered test (goes to the credibility of the party);
3) test results showing a probability of paternity of nine-five percent or higher;
4) a verified acknowledgment of paternity; 5) a foreign paternity determination whether
established through administrative or judicial process; 6) a birth certificate containing
the signature of the mother and the putative father; 7) an expert's opinion concerning
the time of conception; 8) the testimony of a husband and wife as to any relevant
matter, including marriage and parentage; and 9) any other relevant and competent
evidence deemed admissible in the discretion of the court. See S.C. Code Ann. § 63-17-60(A) (replacing but not changing former S.C. Code Ann. §
20-7-956), POMS PR01115.045A (PR 08-152). A verified acknowledgment of paternity can create
a conclusive presumption of the putative father's paternity, but the acknowledgment
must be voluntary, made by a sworn document, signed by the person acknowledging paternity,
and properly witnessed. See S.C. Code Ann. § 63-17-60(A)(4)
Kaila alleged the NH orally acknowledged that Izaiah was his child, but she admitted
she had no written documentation where the NH acknowledged Izaiah as his child. Thus,
the oral acknowledgement allegedly made by the NH did not create a conclusive or even
rebuttable presumption of paternity. See S.C. Code Ann. § 63-17-60(A)(4); POMS PR 01115.045A. (PR 08-152) (finding no evidence that NH executed an acknowledgment of the type required
by South Carolina law), POMS PR 01115.045E (PR 05-237) (finding signed statements from NH's parents that NH told them that he
was claimant's biological father would not satisfy requirements for a verified, voluntary
acknowledgment). The allegation by Kaila that the NH acknowledged Izaiah as his child
may be admissible evidence in an adjudication of paternity, but standing alone, her
allegation does not establish clear and convincing evidence that Izaiah was the NH's
child. Notably, Kaila admitted that the NH was not present at Izaiah's birth and he
did not provide any support for Izaiah. Furthermore, the NH stated that he had no
children under the age of eighteen when he applied for disability insurance benefits
in November 2009, two years after Izaiah's birth. This evidence, when considered as
a whole, does not provide clear and convincing evidence that the NH was Izaiah's father.
Kaila also submitted a Pennsylvania court order issued on June 10, 2008, prior to
the NH's death. The order from the Pennsylvania Court of Common Pleas for Lancaster
County found that the NH, who failed to appear at the court hearing, was Izaiah's
father, “as authorized by 23 Pa. Con. Stat. Ann. § 4342(e).” As set forth above, this statute states, in pertinent part, that “the court shall enter a default order establishing paternity and enforcing support
upon a showing that the defendant has been properly served and has not appeared.” Id. Kaila asserted that the court's order “was simply based on her story and the fact [that the NH] did not show up for court
and refute the allegations of paternity.” SSA-533 form, p. 3.
South Carolina law states “A foreign paternity determination whether established through administrative or judicial
process . . . creates a conclusive presumption of paternity.” S.C. Code Ann. § 63-17-60(A)(5). Therefore, it is necessary to determine whether
SSA will accept the Pennsylvania court's order of paternity in this case. When determining
whether to accept a trial court's findings on domestic relations issues, we look to
SSR 83-37c, which adopted the court ruling in Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973). Although SSA is not bound by a state trial court's
decision in a case where the Commissioner was not a party, SSA must give deference
to a trial court's decision where the following prerequisites are met: 1) an issue
in a claim for Social Security benefits was previously determined by a state court
of competent jurisdiction; 2) the issue was genuinely contested in state court by
parties with opposing interests; 3) the issue falls under the general category of
domestic relations law; and 4) the findings of the state trial court are consistent
with the law enunciated by the state's highest court. SSR 83-37c. Here, there is no
dispute as to the first and third requirements set forth in SSR 83-37c. In addition,
regarding the fourth requirement, the Pennsylvania court's decree of paternity is
in accord with 23 Pa. Con. Stat. Ann. § 4342(e) which, as stated, provides for entry
of a default order establishing paternity upon a showing that the defendant has been
properly served with notice of the court proceeding and does not appear. Thus, the
Pennsylvania court properly entered the order of paternity against the NH in this
However, we conclude that the second requirement of SSR 83-37c was not met, i.e.,
the issue of paternity was not genuinely contested by parties with opposing interests
in the proceeding before the court. The Pennsylvania court resolved the issue of paternity
on the basis of Kaila's allegation that the NH was Izaiah's father and the fact that
the NH did not appear at the hearing to refute the allegations of paternity after
having been properly served with notice of the hearing. Thus, the issue of paternity
was not genuinely contested in court. The Pennsylvania court entered the order of
paternity as a default judgment as authorized by 23 Pa. Con. Stat. Ann. § 4342(e).
The court did not resolve the issue of paternity upon the presentation of evidence
by parties with opposing interests. As such, we conclude that SSA should not give
deference to the Pennsylvania state court order of paternity in determining whether
the NH is Izaiah's father for purposes of South Carolina intestacy law. Therefore,
we believe Izaiah is not the NH's child for purposes of inheritance under South Carolina
II. Analysis of Parent-Child Relationship Under Alternative Sections of the Act.
When a claimant cannot establish that he is the wage earner's child under state intestate
succession laws, the Act allows alternative avenues to establish child status for
survivorship benefits. First, under section 216(h)(2)(B), an applicant can be deemed
a child under the Act if his parents went through a marriage ceremony that turned
out to be legally invalid. See 42 U.S.C. § 416(h)(2)(B). This section of the Act is not applicable here because there
is no evidence that Kaila ever went through a marriage ceremony with the NH.
Second, under section 216(h)(3)(C)(i), an applicant can be deemed to be a child under
the Act where prior to the NH's death 1) the NH acknowledged paternity in writing,
2) the NH was decreed a parent by a court, or 3) the NH was ordered by a court to
contribute to the support of the applicant. 42 U.S.C. § 416(h)(3)(C)(i)(I)-(III).
In this case, as admitted by Kaila, the NH never acknowledged paternity in writing.
In addition, there is no evidence that the NH was ordered by a court to support Izaiah.
Regarding section 416(h)(3)(C)(i)(II), although Kaila presented a Pennsylvania state
court order finding the NH to be the father of Izaiah, we will not give deference
to this order. As explained in detail above, pursuant to SSR 83-37c, SSA should not
give deference to the Pennsylvania order because the issue of the NH's paternity was
not genuinely contested by the NH and Kaila in a proceeding before the Pennsylvania
Third, under section 216(h)(3)(C)(ii), an applicant can be deemed a child under the
Act if the NH was living with or contributing to the support of the child at the time
the NH died. See 20 C.F.R. § 416(h)(3)(C)(ii). In the instant matter, there is no evidence that at
the time of his death the NH was living with or contributing to the support of Izaiah.
Therefore, we find that Izaiah cannot be deemed a child of the NH under sections 216(h)(2)(B)
and 216(h)(3)(C) of the Act.
Accordingly, we conclude that no parent-child relationship existed between the NH
and Izaiah under the Act, and therefore, Izaiah is not entitled to benefits on the
Eric P. Kressman
Regional Chief Counsel, Region III
Nicole A. Schmid
Assistant Regional Counsel