TN 1 (04-06)

PR 01215.035 New York

A. PR 05-090 New York State Family Court Orders of Filiation and the Lord Mansfield Rule

DATE: February 4, 2005

1. SYLLABUS

Although New York is a state which follows the Lord Mansfield rule prohibiting the use of the testimony of either a husband or a wife to non-access to rebut the presumption of legitimacy of a child born within their marriage, Section 531 of its Family Law Act is a statutory exemption to that rule.

An Order of Filiation issued under that Act based on testimony from the husband and wife is sufficient to rebut the presumption of paternity and to establish that the children involved are eligible to inherit from the number holder and qualify as his children under Section 216(h)(2) of the Social Security Act.

Additionally this same Order of Filiation, issued with the active participation and acknowledgement of the number holder would also qualify the children for benefits on his record under Section 216(h)(3) of the Social Security Act.

2. OPINION

Question and Short Answer

You have asked whether Elissa and David may receive child's benefits on the account of David M~, pursuant to Section 216(h) (3) of the Social Security Act. 42 U.S.C. Section 416 Section (h) (3). New York State Family Court has issued Orders of Filiation that adjudged David M~, the wage earner (and not Albert D~, the husband of their mother) to be Elissa and David's father. You questioned the Order of Filiation because, contrary to the Lord Mansfield rule, the Family Court permitted the mother and her husband (Albert D~) to give testimony that, during their marriage, Elissa and David were fathered by David M~.

The Lord Mansfield Rule, an English common law evidentiary rule adopted by many American courts, prohibits the use of the testimony of either a husband or a wife to non-access to rebut the presumption of legitimacy of a child born within their marriage. We conclude that when the New York State Family Court has issued an Order of Filiation, the presumption of legitimacy has been rebutted and the Lord Mansfield Rule excluding husband or wife testimony of non-access to rebut the presumption does not apply.

Further, the Family Court Act of New York State specifically permits a husband or wife to testify to non-access. In addition, under New York State Estates, Powers and Trusts Law ("N.Y.E.P.T.L.), an Order of Filiation for a non-marital child establishes inheritance rights.

The Orders of Filiation are sufficient evidence to meet the statutory requirements of either Sections 216(h) (2) or 216(h) (3). Therefore David and Elissa could be eligible under either of those sections.

Facts

David and Elissa were born to Maria D~ during her marriage to Albert D~. Maria and Albert were married in 1983 in Florida and divorced in Florida in 2002. In 1995 Maria moved to Buffalo and Albert remained in Florida. Elissa was born on 7/28/97 and David was born on 1/15/00.

On August 19, 2004, Maria D~ petitioned Family Court in Buffalo for a finding that that David M~ was the father of both Elissa and David. Maria states that she, David M~, and Albert D~ participated in a three-way phone call in front of the judge. On September 29, 2004, Orders of Filiation were issued for Elissa and for David, adjudging David M~ to be their father. Subsequently, the birth certificates of Elissa and David were amended to show David M~ as their father.

Discussion

a. Section 216(h)(2)

Section 216(h)(2) provides that in determining whether an applicant is the child of an insured individual, the Commissioner applies state intestacy law. Since the wage earner, David M~, is domiciled in New York, New York State law applies.

As currently set forth in the POMS GN 00306.026, New York follows the Lord Mansfield Rule. However, our research shows that the Lord Mansfield Rule is not followed, i.e. testimony of non-access by the husband or wife is permitted, during a Family Court proceeding to establish paternity that results in an Order of Filiation. Further, we have concluded that under New York State law both Elissa and David may inherit from David M~, as non-marital children who are the subjects of Orders of Filiation. Therefore, both may receive child's benefits on David M~' account pursuant to Section 216(h)(2) of the Social Security Act.

The most important fact here is that the Orders of Filiation in this matter were lawfully issued in accordance with New York State Law. Under the Family Court Act (and directly contrary to the Lord Mansfield Rule), both a husband and a wife may testify regarding non-access to rebut the presumption of legitimacy. Family Court Act, Section 531. See State of New York ex rel H v. P.,90 A.D. 2d 434. (December 30, 1982). (Section 531 of the Family Court Act is statutory exemption to the Lord Mansfield Rule). See also Anonymous v. Anonymous, 43 Misc. 2d (Family Court, September 1, 1964). (A married woman may bring a paternity action as well as an unmarried woman. The term "child born out of wedlock" means not only a child born to a mother who is not married, but also a child born to a married woman where the father is not the husband. Otherwise Section 531 of the Act, permitting a married woman to bring a paternity action, would be rendered meaningless.)

The fact that the proceedings took place on a telephone conference call does not present any problems since Section 531-a of the Family Court Act provides that testimony may be taken by telephone or other electronic means. Further, an Order of Filiation may be issued in the absence of DNA testing based on clear and convincing evidence of non-access. Joan G. v. Robert W., 83 A.D. 2d. 838 (3d Department 1971).

The Orders of Filiation in this case provide inheritance rights from David M~ to Elissa and David. Pursuant to N.Y. E.P.T.L.Section 4-1.2 (a) (2) (A), a non-marital child is the legitimate child of his father so that he and his issue can inherit from his father and his paternal kindred, if a court of competent jurisdiction has, during the lifetime of the father, issued an order of filiation declaring paternity. Although Elissa and David were born during their mother's marriage to Albert D~, they fall within the definition of "non-marital child."

While the presumption of the legitimacy of children born during a marriage continues to apply in the State of New York, the presumption is rebutted, as in this case, when the Family Court has issued an Order of Filiation.

b. Section 216(h)(3)

Section 216(h)(3) and 20 C.F.R. 404.355(a)(3) provide that a child may be eligible for benefits as the insured's natural child if the child has been decreed by a court of competent jurisdiction to be the child's father. See also POMS GN 00306.100B.1. In this case, the Family Court has decreed that David M~ is the father of Elissa and David. David M~ participated in the Family court proceeding and acknowledged Elissa and David as his children . No other evidence showing M~ to be the biological father is required. Therefore, Elissa and David are eligible as David M~' natural children on his account.


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http://policy.ssa.gov/poms.nsf/lnx/1501215035
PR 01215.035 - New York - 05/05/2011
Batch run: 05/05/2011
Rev:05/05/2011