TN 3 (09-11)
PR 01705.021 Louisiana
A. PR 11-149 Louisiana Law – Status of Child Born More Than 300 Days After Purported Father’s Death (NH Gregory B~, SSN ~) – REPLY
DATE: August 26, 2011
Louisiana law is straightforward. “The husband of the mother is presumed to be the father of a child born during the marriage or within three hundred days from the date of the termination of the marriage. The Claimant, Alexis was born on April 1, 2002, 301 days after June 4, 2001, when the NH died.
In this case, the facts do not support a conclusion that Alexis is the NH’s child. Louisiana would not apply a presumption of paternity because Alexis was not born within 300 days of the NH’s death. In addition, Shadell the spouse of the NH and mother of the claimant has not provided clear and convincing evidence showing a high probability that the NH is Alexis’s father. Therefore, we do not believe that Alexis is the NH’s child for purposes of determining her entitlement to benefits.
This memorandum is in response to your request for a legal opinion on whether, under Louisiana law, a child would be presumed to be the child of his or her mother’s husband—the number holder and putative father—who died 301 days before the child’s birth. It is our opinion that Louisiana law would not presume a child’s mother’s deceased husband to be the child’s father unless the child is born within 300 days of the putative father’s death. Therefore, absent clear and convincing evidence of paternity, the child would not be considered the number holder’s child for the purposes of the Social Security Act (Act).
As we understand the facts, Gregory B~ (NH) and Shadell B. B~ (Shadell) married on June 25, 1994. The NH died in an accident on June 4, 2001, while domiciled in Louisiana. Shadell and two children, Cedreka B~ and Gregory B~, Jr., both of whom are undisputedly children of the marriage, currently receive survivor’s benefits on the NH’s record.
Alexis B~ (Alexis) was born on April 1, 2002, 301 days after the NH’s death. On April 15, 2002, Shadell filed a claim for surviving child’s benefits on Alexis’s behalf, on the NH’s account, asserting that Alexis was the NH’s natural, legitimate child. Shadell alleges that Alexis was conceived approximately two weeks prior to the NH’s death. The agency originally denied the claim but recently reopened the matter for further development and formal submission to the Regional Chief Counsel as mandated by GN 00306.020(B)(5).
Under the Act, a child of an individual who receives old-age or disability benefits is entitled to child’s insurance benefits if he or she (1) is that individual’s child for purposes of the Act, (2) files for benefits, (3) is unmarried, (4) is under the age of eighteen, and (5) is dependent upon the individual in question. See 42 U.S.C. § 402(d)(1)(A)-(C); 20 C.F.R. § 404.350(a). Here, only Alexis’s status as the NH’s child is material to our analysis. As for the other prerequisites, Shadell filed an application for benefits on Alexis’s behalf; Alexis is undoubtedly unmarried because she is only nine-years old; and the agency would consider Alexis dependent on the NH if she is his natural child. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a).
The agency questions the paternity of a child born to a married woman when the child is born more than 287 days after the termination of the marriage, whether by death or divorce. See POMS GN 00306.020(B)(5). The NH died 301 days before Alexis’s birth. Alexis would be entitled to benefits if she could show that she would be entitled to inherit as the NH’s child under state law. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b) (directing that the agency look to state law to determine paternity). In this case, we look to the inheritance law of Louisiana, the state where the NH was domiciled at the time of his death. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b)(1).
Louisiana law is straightforward. “The husband of the mother is presumed to be the father of a child born during the marriage or within three hundred days from the date of the termination of the marriage.” La. Civ. Code Ann. art. 185. Plainly, the death of a spouse terminates the marriage. See id. art. 101. Alexis was born on April 1, 2002, 301 days after June 4, 2001, when the NH died. See State ex rel. State Pharm. Ass’n v. Michel, 27 So. 565, 567 (La. 1900) (explaining that a day “begins at 12 o’clock midnight, and extends through 24 hours to the next 12 o’clock midnight”); Thomas v. Dep’t of Corr., 430 So. 2d 1153, 1157 (La Ct. App. 1983) (same); Black’s Law Dictionary 424 (8th ed. 2004) (defining term “calendar day” as “consecutive 24-hour day running from midnight to midnight”). Therefore, because Alexis was born 301 days after the NH’s death, Louisiana law does not generate a presumption that Alexis is the NH’s child.
Even though Alexis cannot benefit from the presumption of paternity because she was not born within 300 days from the NH’s death, Louisiana law also permits a child to establish paternity by presenting clear and convincing evidence of the parent-child relationship. See La. Civ. Code Ann. art. 197. Louisiana courts define clear and convincing evidence as an “immediate standard falling somewhere between ‘the ordinary preponderance of the evidence civil standard and the beyond a reasonable doubt criminal standard.’” Comeaux v. City of Crowley, 793 So. 2d 1215, 1220 (La. 2001) (citation omitted). Functionally, “[t]he burden of proof by clear and convincing evidence requires a party [to show] that the fact or causation sought to be proved is highly probable, i.e., much more probable than its non-existence.” Gibbs v. Delatte, 927 So. 2d 1131, 1140 (La. Ct. App. 2005); accord Sudwischer v. Estate of H~, 705 So. 2d 724, 731-32 (La. 1997) (describing burden in identical terms in relation to proof of filiation by illegitimate children). Louisiana courts have recently expressed a preference that persons attempting to prove paternity by clear and convincing evidence provide genetic testing results. See Dep’t of Soc. Serv., Office of Family Support v. Drew, ___ So. 3d ___, ___, 2011 WL 2750911, at *2 (La Ct. App. June 29, 2011) (citing the inherent uncertainties in determining filiation absent scientific evidence). There was no such evidence proffered in this case. The courts have also referenced evidence such as birth certificates, financial support, and sworn testimony. See Jenkins v. Mangano Corp., 774 So. 2d 101, 104-05 (La. 2000) (financial support and uncontroverted testimony by individuals lacking pecuniary interest in litigation); Ratliff v. LSU Bd. of Supervisors, 38 So. 3d 1068, 1077 (La. Ct. App. 2010) (birth certificates and testimony).
Shadell has provided some evidence militating in favor of a finding that Alexis is the NH’s child. First, the birth certificate lists the NH as her father. Yet, under Louisiana law, the fact that an individual is listed as a child’s father on a birth certificate is not strongly probative of paternity when the putative father died more than three-hundred days before the child’s birth. See Bolden v. Rodgers, 746 So. 2d 88, 94 (La. Ct. App. 1999) (regarding as unpersuasive evidence that putative father was listed on child’s birth certificate where child was born more than 300 days after his death). Moreover, Louisiana law specifies that “[a] man may, by authentic act or by signing the birth, certificate, acknowledge a child, . . . creat[ing] a presumption that the man . . . is the father.” La. Civ. Code Ann. art. 196. The NH, who died before Alexis’s birth, never had the opportunity to sign a birth certificate. Because it has no persuasive value in this case, the birth certificate does not create a presumption in favor of paternity. At most, the birth certificate merely reflects Shadell’s historical assertion that Alexis is the NH’s child. Second, Shadell has consistently maintained that Alexis is the NH’s child. Her subjective allegations are entitled to whatever value a finder of fact might assign to them. See Ratliff, 38 So. 3d at 1074, 1077 (emphasizing that questions of credibility and evidentiary weight lie squarely within province of fact finder). Nevertheless, the policy considerations underlying the 300-day limit on the presumption of paternity found in Louisiana law forcefully counsel against uncritical acceptance of unsubstantiated assertions, such as Shadell’s claim that Alexis is the NH’s child, particularly given the requirement of “clear and convincing” proof. La. Civ. Code. Ann. arts. 185, 197. Moreover, Shadell originally reported in her claim for mother’s benefits that she and the NH separated on May 17, 2001, approximately two weeks prior to his death, about the same time she currently alleges she conceived Alexis. Shadell now portrays this separation as a temporary and episodic practice precipitated by a stroke suffered by the NH’s mother. She claims that both she and the NH would alternately stay overnight with the NH’s mother until a nurse could be retained as a more permanent solution. Nevertheless, Shadell’s self-interested, post-hoc explication of these events strains the word “separation,” a widely-understood term of art in the marital context, close to the breaking point. In this case, the facts do not support a conclusion that Alexis is the NH’s child. Louisiana would not apply a presumption of paternity because Alexis was not born within 300 days of the NH’s death. In addition, Shadell has not provided clear and convincing evidence showing a high probability that the NH is Alexis’s father. Therefore, we do not believe that Alexis is the NH’s child for purposes of determining her entitlement to benefits.
Regional Chief Counsel
Mark J. M~
Assistant Regional Counsel
A field-office employee discovered that the claim on Alexis’s behalf had been denied erroneously without a legal opinion after Shadell applied for Title XVI benefits on another child’s behalf.
The agency considers a number holder’s natural child dependent on the number holder, unless another person legally adopts the child. See 20 C.F.R. § 404.361. Thus, resolution of Alexis’s status as the NH’s dependent is predicated upon her status as the NH’s natural child.
The facts do not implicate the other common methods of presuming an insured individual’s relationship with a putative child. See 20 C.F.R. § 404.354 (explaining that child may establish requisite relationship by showing that he or she is a natural child, legally or equitably adopted child, stepchild, grandchild, or step-grandchild).
This calculation ignores the start date, June 4, 2001. Counting June 5, 2001, as the first day, April 1, 2002, is the 301st day.
Louisiana imposes a one-year statute of limitations on paternity actions for inheritance purposes. See La. Civ. Code Ann. art. 197. The agency does not, however, use state-law limitations periods in determining whether an individual is a numberholder’s child. See POMS GN 00306.075(B)(2)(b)(3).