You have asked whether the adoption relationship between the number holder Gary W~
and Matthew S. C~ existed from December 10, 1986, or from April 4, 2001. It is our
opinion that the adoption relationship between Mr. W~ and Matthew existed only from
April 4, 2001.
Mary and Gary W~ were married on November 17, 1970. On December 10, 1986, Mary W~
successfully petitioned in New Mexico district court for the adoption of Matthew S.
C~. The adoption decree specifically stated in paragraph nine that Mary W~ was married,
“without her spouse joining in as a petitioner.” Furthermore, paragraph ten of the decree stated that the non-joining spouse was excused
from joining the petition “under the circumstances.” Finally, the adoption order stated that Matthew was the child of Mary W~. No explanation
has been provided to date explaining why Gary W~ was not a petitioner in the December
On June 29, 2000, Gary W~ filed for disability insurance benefits under Title II of
the Social Security Act. The claim was allowed as of September 2000. Mr. W~ listed
Matthew as his son on the disability application. On or about January 29, 2001, Matthew
filed his own claim for child's insurance benefits on the record of Gary W~. This
claim was denied since no parental relationship existed between the number holder
and Matthew. According to your request for legal opinion, Matthew was already receiving
benefits on the Title II disability record of his adopted mother, Mary W~, with a
month of entitlement of February 1996. On April 4, 2001, Mary and Gary W~ sought and
obtained the decree of adoption nunc pro tunc in New Mexico stating that Matthew had
been the child of both individuals since December 10, 1986. On April 23, 2001, Matthew
again filed for child's insurance benefits on the record of Gary W~.
New Mexico law governs the determination by the Social Security Administration (SSA)
as to whether Matthew should be regarded as the adopted child of Gary W~. 42 U.S.C.
§ 416(e)(1). Moreover, the Act requires that Matthew be the child of Mr. W~ in order
for him to qualify for child's insurance benefits. 42 U.S.C. § 416(h)(2)(A).
The term nunc pro tunc is a Latin phrase meaning “now for then.” See Black's Law Dictionary at 1097 (7th ed. 1999). A court's entry of an order nunc pro tunc is used to correct
a clerical error in the record. Id. New Mexico jurisprudence has further defined the limits and proper use of orders
nunc pro tunc. Nunc pro tunc orders are not to be used to supply some omitted action
of the court, but may be utilized to supply an omission in the record of something
really done but omitted from an order through mistake. See Mora v. Matinez, 451 P.2d 992, 993 (N.M. 1969); State v. Hatley, 384 P.2d 252, 254 (N.M. 1963). While an order of adoption may be entered nunc pro
tunc to cure irregularities that do not effect the jurisdiction of the court, it cannot
serve to bring into existence an adoption when no adoption could have existed. See Smith v. Bradfield, 642 P.2d 214, 218 (N.M. Ct. App. 1982).
SSA policy states that while the Commissioner is not bound by a decision of a state
trial court where the Agency is not a party, the Commissioner must still recognize
a state court adjudication where all of the following prerequisites are found: (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. See Social Security Ruling 83-37c (SSR); Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973).
Under the facts of this case, we conclude that the Agency is not bound by that part
of the April 4, 2001, New Mexico nunc pro tunc order providing retroactive effect
to the adoption. Our conclusion is based upon the fact that there is no credible evidence
the number holder intended to adopt Matthew as of December 1986. As previously indicated
in our opinion, the December 10, 1986, New Mexico adoption order specifically indicated
that Mary W~ was the sole petitioner in the proceeding and that her spouse (Gary W~)
was excused from joining the petition. The 1986 judgment clearly evidenced a purposeful,
affirmative act on the court's behalf to exclude Gary W~ from the adoption proceeding
and cannot be characterized as creating a clerical error in the record. Therefore,
there was no inadvertent omission for the April 4, 2001, nunc pro tunc order to correct.
For this reason the fourth prong of SSR 83-37c was not met, in our view, because the
order was not in compliance with the law as enunciated by the highest court in New
In addition, while the nun pro tunc adoption issue in this case falls within the category
of a domestic relations law, there is reason to believe the issue was not genuinely
contested in state court by parties with opposing interests. The only parties to the
April 4, 2001, adoption proceeding were Mary and Gary W~, and Matthew. Each of these
parties had the same interest; to ensure that the 1986 decree created an adoption
relationship between the number holder and Matthew as of December 10, 1986. For this
reason, the second prong of SSR 83-37c was also not met because parties with opposing
interests did not genuinely contest the adoption before the State court.
In conclusion, it is our opinion that the adoption relationship between the number
holder and Matthew existed only from April 4, 2001.
Tina M. W~
Regional Chief Counsel
Thomas C. S~
Assistant Regional Counsel