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
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.
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.
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.