You asked whether Janice E~ can qualify for child's insurance benefits as either the
"child" or the "stepchild" of the wage earner, Ernest L~, under California law.
Yes. Based on our interpretation of California law, Janice is the wage earner's stepchild,
and thus, is entitled to child's insurance benefits on his account.
However, Janice would probably not be considered the "natural child" of the wage earner
under California intestacy law.
SUMMARY OF EVIDENCE
The wage earner and Janice's mother have been living together as husband and wife
since 1979. They formally married in September 1983. However, they separated and stopped
living together in 1985.
During the separation, Janice's mother had a relationship with John E~. On June XX,
1986, Janice was born, and John E~ was named as her father on the birth certificate.
Both the wage earner and Janice's mother state that John E~ is Janice's biological
father. When John E~ applied for disability benefits in 1993, he stated that he had
a six-year-old daughter with Janice's mother. He also claimed that he had a "common
law" marriage with Janice's mother from 1987 to 1990. However, his application was
denied, so neither he nor any potential dependents received benefits on his account.
In 1989, Janice's mother and the wage earner reunited and have lived with Janice ever
since as a family unit. The wage earner has always treated Janice as his stepdaughter.
At some point, the wage earner and Janice's mother obtained a court order prohibiting
John E~ from contacting Janice and her mother. (The reason for such actions is not
In March 2000, the wage earner applied for retirement insurance benefits. He became
entitled as of June 2000. He also applied for child's insurance benefits for Janice,
now 14. Janice's mother applied for wife's insurance benefits, to which she is entitled
only if Janice qualifies for child's benefits.
A. Stepparent-Stepchild Relationship
The Social Security Act provides child's insurance benefits to the dependent stepchildren
of wage earners entitled to disability or retirement benefits. 42 U.S.C. §§ 402(d)
Under Social Security regulations, a child is considered the wage earner's stepchild
if her natural parent married the wage earner after her birth. A child may also be
a stepchild if she was conceived prior to the marriage of her natural parent to the
wage earner but was born after the marriage and the wage earner is not the child's
natural parent. 20 C.F.R. § 404.357 (2001). As you correctly stated, Janice is not
the wage earner's stepchild under Section 404.357 because Janice was conceived and
born during the legal marriage of the wage earner and Janice's mother. See B.B. v. Schweiker, 643 F.2d 1069 (5th Cir. 1981).
However, in the Ninth Circuit, Social Security adjudicators apply applicable state
law, rather than Social Security regulations, to determine whether a child is considered
a "stepchild." Acquiescence Ruling ("AR") 86-12(9), based on Hutcheson v. Califano, 638 F.2d 96 (9th Cir. 1981). The adjudicator applies the law of the wage earner's
domicile at the time the application is filed.
Here, the wage earner was domiciled in California when he applied for retirement benefits
in March 2000. Thus, the Social Security Administration must apply California's definitions
According to California case law, "a person becomes a stepparent by marrying the natural
biological parent." Clifford S. v. Superior Court, 38 Cal.App.4th 747, 752 (4th Dist. 1995). Another California case defined the stepchild
and stepparent relationship merely as arising out of the stepparent's marriage to
the natural parent. In re Jodi B., 227 Cal.App.3d 1322, 1328-1329 (6th Dist. 1991). There is no requirement that the
marriage have occurred after the birth of the stepchild.
Furthermore, a California regulation implementing California's Medicaid program under
Title 19 of the Social Security Act specifically defines stepparent as "a person who
is married to the parent of a child and who is not the other parent of the child."
22 C.C.R. § 50094 (2001).
Thus, the wage earner would most likely be considered Janice's stepparent under California
law. You indicated that the evidence shows Janice is living with the wage earner as
his stepchild and receiving support from him. Thus, the dependency requirements of
20 C.F.R. §§ 404.360 and 404.366 (2001) are satisfied.
B. Natural Parent-Child Relationship
A claimant can also qualify for child's insurance benefits under the Social Security
Act if she can establish a right to intestate succession from the wage earner under
applicable state law. 42 U.S.C. § 416(h)(2)(A).
Under California Probate Code Section 6453(a), a natural parent-child relationship
is established for purposes of intestate succession where that relationship is presumed
and not rebutted under the Uniform Parentage Act (UPA). According to the UPA, a man
is the presumed father of a child when the child is born during his marriage to the
mother. Cal. Fam. Code § 7611(a). This presumption is rebuttable and can be rebutted
in "an appropriate action only by clear and convincing evidence." Cal. Fam. Code §
Here, the wage earner is Janice's presumed father because she was born while her mother
and the wage earner were legally married (even though they were living apart). However,
that presumption would probably be considered rebutted in this case. Both Janice's
mother and the wage earner readily admit the Janice is not the wage earner's biological
father, and Janice's mother evidently allowed Mr. E~'s name to be placed on Janice's
birth certificate. Cal. Fam. Code § 7612; Nicholas H. v. Kimberly H., 91 Cal. App.4th 86 (1st Dist. 2001); Ethan S. v. Headrick, 221 Cal.App.3d 1403, 1416-1417 (1st Dist. 1990).
Furthermore, if Mr. E~'s claim that he lived with Janice's mother and Janice following
her birth are true, he may also qualify as a presumed father because he openly held
out Janice as his own child after she was born. Cal. Fam. Code § 7611(d). As a presumed
father, Mr. E~ would be able to bring an action under the UPA to establish his biological
paternity. Brian C. v. Ginger K., 77 Cal. App.4th 1198, 1220-1221 (4th Dist. 2000) (man who lived with married woman
and openly held out their child as his own had standing as a presumed father to bring
action to declare his paternity even though woman subsequently returned to her husband
and the husband was also a presumed father). Thus, Janice would probably not be able
to inherit intestate from the wage earner as his natural child under California law.
Janice is entitled to child's insurance benefits (auxiliary) as a stepchild based
on the wage earner's account.