Under Colorado’s intestacy laws, a parent-child relationship can be established by a presumption of parentage under the Uniform Parentage Act (UPA). The UPA provides that a man is presumed to be the natural father of a child if he receives the child into his home and openly holds out the child as his natural child while the child is a minor. An individual need not be a biological or adoptive parent in order to be a presumed parent under the UPA. Nothing in the Colorado UPA prohibits a child from having two same-sex parents.

The evidence provided shows that the NH received the claimant into his home and held her out as his child. That is sufficient to establish a presumption of parentage under the UPA and a parent-child relationship for purposes of Colorado intestacy law.

You asked us to determine whether claimant (CL) P~ is the child of the deceased number holder (NH), M~, for benefit purposes.

Yes. Under Colorado intestacy law, which governs here, the parent-child relationship may be established under Colorado’s Uniform Parentage Act (UPA). The evidence provided shows that the NH received the CL into his home and held her out as his child; that is sufficient to establish a presumption of parentage under the UPA and a parent-child relationship for purposes of Colorado intestacy law.

According to the information provided, the NH married the applicant, M2~ in October 2008 in California. In October 2011, the CL was adopted in Michigan. The Order of Adoption and Amended Birth Certificate only list M2~ as the parent.^[1]

In support of the CL’s application for benefits, M2~ provided a state-required home study related to M2~ and the NH’s application for a second adoption. Pursuant to statute, these home studies are performed by social services or other state-approved agencies or individuals, and must meet certain uniform standards. See Colo. Rev. Stat. §§ 19-5-207, -207.5; Colo. Code Regs. § 2509-6 (2016). The home study was completed in October 2015 and based on multiple visits with M2~, the NH, and the CL. The study refers to “their daughter P~” and includes the observations of an adoption specialist, which details a family life in which the CL is clearly considered the child of both M2~ and the NH. The NH stated that bringing the CL home “was the realization of [their] dream” to become parents. M2~ stated that the NH “is completely devoted to . . . P~.” The evaluator concluded that the CL “demonstrates a secure attachment to both of her fathers.”

In May 2016, while domiciled in Colorado, the NH died. M2~ filed a claim for the CL on the NH’s record in June 2016.

When M2~ adopted the CL in 2011, Michigan prohibited a same-sex married couple from adopting a child as a married couple, but allowed one of the partners to adopt as a single person. See State of Michigan, Office of the Attorney General, Validity of out-of-state same-sex marriages in Michigan, 2004 Mich. OAG No. 7160, 2004 WL 2096457 (Sept. 14, 2004); see also Obergefell v. Hodges, 135 S. Ct. 2584, 2594 (2015) (describing Michigan adoption law). As such, it was impossible for both the NH and M2~ to adopt the CL in Michigan at the time of her birth. Therefore, there is a reasonable explanation for any discrepancy in the adoption paperwork.

Although the NH’s name is not included on the birth certificate, he is not precluded from establishing a parent-child relationship if a presumption of parentage can be established under the “holding out” provision contained at Colo. Rev. Stat. § 19-4-105(1)(d). Colorado courts have recognized that whether an individual meets the statutory criteria to establish presumptive parentage “is a distinctly factual question properly resolved by the trial court.” In re Parental Responsibilities of A.R.L., 318 P.3d at 588.

Here, the state-required home study related to M2~ and the NH’s application for a second adoption provides probative and credible evidence that the NH received the CL into his home and openly held her out as his natural child. Among other things, the home study captures the observations of an adoption specialist and refers to “their daughter P~”; details a family life in which the CL is clearly considered the child of both M2~ and the NH, and in which the CL “demonstrates a secure attachment to both of her fathers”; and includes a statement from the NH that bringing the CL home “was the realization of [their] dream” to become parents, and one from M2~ that the NH “is completely devoted to . . . P~.” This evidence appears sufficient to establish the NH as the CL’s presumed parent under Colorado law, eligible to inherit from his estate.^[3] See Colo. Rev. Stat. § 19-4-105(1)(d); In re A.D., 240 P.3d 488, 490-91 (Colo. App. 2010) (affirming trial court judgment that found petitioner to be the presumed natural father of a child on the basis of the UPA’s holding out provision, despite the petitioner being neither the biological nor adoptive parent of the child); see also In re Parental Responsibilities of A.R.L., 318 P.3d at 588 (recognizing that whether an individual meets the statutory criteria to establish presumptive parentage “is a distinctly factual question properly resolved by the trial court”).

The evidence shows that the NH received the CL into his home from the time of her adoption and openly held her out as his natural child. We believe the Colorado courts would find he is a presumed parent under section 19-4-105(1)(d) of the Colorado Revised Statutes, which also establishes that the CL can inherit from the NH under Colorado intestacy law. Therefore, the CL can establish that she is the NH’s child under the Act. Accordingly, we believe there is support for the agency to find the CL entitled to Title II child’s benefits on the NH’s record.

 

Under Colorado’s intestacy laws, a parent-child relationship can be established by a presumption of parentage under the Colorado Uniform Parentage Act (UPA). Presumptive parenthood applies equally to men and women, and can be established by a person with no biological connection to the child. In the context of a same-sex relationship, a child can have a biological mother (or father) and a presumptive mother (or father). The UPA extends to all parent-child relationships, regardless of the parents’ marital status. A person can establish themselves as a presumed parent by receiving the child into their home and holding the child out as their natural child.

In this case, the child was conceived and born to the NH after the purported common law marriage began, thus precluding the child from being considered the NH’s stepchild even if a common law marriage exists. There is sufficient evidence, however, to establish inheritance rights under Colorado law. The NH is the child’s presumed parent because he received her into his home from her birth and openly held her out as his natural child.

QUESTION

You asked whether a parent-child relationship exists between the NH and the Claimant, L~, for purposes of determining the Claimant’s entitlement to child’s insurance benefits on the NH’s record. The Claimant is the biological daughter of L2~ (L2~), the NH’s longtime partner.

SHORT ANSWER

Yes. Under Colorado law, the NH is the Claimant’s presumed parent because he received the Claimant into his home from birth, provided her sole financial support, and participated in her upbringing. This evidence is sufficient to establish a parent-child relationship under Colorado law. Accordingly, the Claimant has established a child-parent relationship under the Social Security Act (Act) and the agency can deem the Claimant dependent on the NH. Thus, the agency can find the Claimant is entitled to child’s benefits on the NH’s record.

BACKGROUND

According to the information you provided, the NH and L2~ lived together and presented themselves as a married couple from 1992^[4] until the NH’s death in November 2010. See Addendum, Statement of Marital Relationship, p. 1; Death Certificate, p. 21.^[5] Witnesses provided statements indicating that the NH and L2~ lived together continuously during that time and referred to each other as “husband.” See Addendum, Statement of M~, p. 5-6; Statement of P~, p. 7-8; Statement of C~, p. 9-11. They owned property together, and the NH named L2~ as the beneficiary of his retirement benefits. See Deed, p. 3-4, PERA Statement, p. 5-8.

The Claimant, L2~’s biological daughter, was born in October 1999. See Application for Child’s Survivor Benefits; Remarks, p.1. L2~ reported that he was never married to L~’s biological mother, and the mother never provided for L~’s financial support. The Claimant lived with the NH and L2~ from birth, and the NH provided her sole financial support, claiming her as a dependent on his taxes. See Remarks, p.1; Tax Return, p. 15-19; Statement of C~, p. 11. Witness statements indicated that the Claimant was considered the NH and L2~s daughter. See Addendum, Statement of P~, p. 7; Statement of C~, p. 9-12. The NH’s mother, C~, provided an additional statement which detailed his relationship with the Claimant, noting that the NH and L2~ longed for a child before the Claimant was born, the Claimant called the NH “Dada,” the NH provided the primary financial support for the Claimant, the NH and L2~ carefully chose which school the Claimant attended, and they took the Claimant on many vacations and involved her in several activities. See Addendum, Statement of C~, p. 11-12. In addition, NH’s obituary listed L2~ as his surviving “longtime partner” and the Claimant as his daughter. See Obituary, p. 20.

DISCUSSION

a. Federal Law

An individual may be eligible for child survivor’s insurance benefits if: (1) he or she is the “child” of the insured, as defined in section 216(e) of the Social Security Act; and (2) he or she was “dependent upon” the insured at the time of his death. Act § 202(d)(1), 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350. The term “child” includes: (1) a child or legally adopted child of an individual; (2) a stepchild; and (3) a grandchild or step-grandchild in certain circumstances. 42 U.S.C. § 416(e).

To determine whether a claimant qualifies as the child of an insured individual, the Commissioner applies the law governing intestate succession of the state in which the insured individual is domiciled at the time of the application. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1); see also POMS GN 00306.001(C). If a claimant qualifies as a child of the insured individual under the foregoing analysis, the claimant is deemed dependent on the insured individual. 20 C.F.R. § 404.361(a).

Initially, although the OGC Request for Legal Opinion asked whether the Claimant was entitled to benefits as the stepchild of the NH (based on a common law marriage), we have determined that under the above facts, the Claimant cannot be considered NH’s stepchild even if a common law marriage exists. Specifically, POMS GN 00306.230(A)(1) provides that “[a] child conceived and born to one of the parties after the marriage, or adopted by one of the parties after the marriage, is not the stepchild of the other party.”^[6] Here, the Claimant was conceived and born to L2~ after the purported common law marriage began—thus precluding the Claimant from being considered the NH’s stepchild. Therefore, we will only analyze whether the Claimant is the NH’s child under Colorado intestacy law.

b. Colorado Law Regarding Parentage^[7]

Under Colorado’s intestacy laws, a parent-child relationship can be established by a presumption of parentage under the Colorado Uniform Parentage Act. See C.R.S. § 15-11-115(5). Further, under the Colorado Uniform Parentage Act, a man is presumed to be the natural father of a child if “he receives the child into his home and openly holds out the child as his natural child.” C.R.S. § 19-4-105(1)(d).

The Colorado Court of Appeals has held that under the above provisions, an individual need not be a biological parent in order to be a presumed parent. See In re Parental Reponsibilities of A.D., 240 P.3d 448, 491 (Colo. App. 2010). Further, in the context of a same-sex relationship, a child can have a biological mother (or father) and a presumptive mother (or father). See In re Parental Responsibilities of A.R.L., 318 P.3d 581 (Colo. App. 2013). In A.R.L., a woman petitioned the Court to establish a parent-child relationship with the biological child of her former same-sex partner. Id. at 583-84. The Court recognized that the Uniform Parentage Act extended to all parent-child relationships, regardless of the parents’ marital status, and went on to note that a person could establish themselves as a presumed parent by receiving the child into their home and holding the child out as their natural child. Id. at 584 (citing C.R.S. § 19-4-104). The Court made clear that presumptive parenthood applies equally to men and women, and can be established by a person with no biological connection to the child. Id. at 584-85.

The Court rejected the argument that the biological father must be considered the child’s parent, such that allowing the partner to establish parentage would create three legal parents. Id. at 585. The Court observed that biology is merely one of many rebuttable presumptions of parentage. And when confronted with competing presumptions, the court determines parentage based on the weightier considerations of policy, logic, and the child’s best interests. Id. at 585-86; see also C.R.S. § 19-4-1-5(2)(a).

c. The NH’s Status as the Claimant’s Parent Under Colorado Law

Based on the evidence that you have provided, the NH could establish presumptive parenthood under C.R.S. § 19-4-105(1)(d) and the holding in A.R.L.. He received the Claimant into his home from birth and openly held her out to be his natural child. See C.R.S. § 19-4-105(1)(d); Addendum, Statement of C~, p. 11-12; Obituary, p. 20. Witness statements indicate that the NH and L2~ longed for a child before the Claimant was born. In addition, the NH provided her financial support, materially participated in her upbringing by choosing her school and activities, and resided with the Claimant and L2~ in the same household as a family. This evidence is sufficient to establish that the NH received the Claimant into his home and openly held her out as his natural child. See C.R.S. § 19-4-105(1)(d); A.R.L., 318 P.3d at 586 n.4 (“A presumed parent is someone who demonstrates an enduring commitment to a child and can present evidence of a familial relationship with a child.”).

Although we have little information regarding the claimant’s birth mother, it seems unlikely that her competing presumption of parentage would outweigh the NH’s.^[8] L2~ stated that he was never married to the birth mother, and she did not provide any financial support to the Claimant. See Application for Child’s Survivor Benefits; Remarks, p.1. In contrast, the NH provided her sole financial support, lived in her household, and by all accounts had a loving and nurturing relationship and acted as a parent from L~’s birth until his death. In light of this evidence, the Court would likely find that the NH was the Claimant’s parent. See A.R.L., 318 P.3d at 586-87; C.R.S. § 19-4-105(b)(a).^[9]

Conclusion

The evidence is sufficient to find the Claimant entitled to surviving child benefits on the record of the NH. Although the Claimant would not be considered NH’s stepchild under POMS GN 00306.230(A)(1), there is sufficient evidence to establish inheritance rights under Colorado law. The NH is L~’s presumed parent under C.R.S. § 19-4-105 because he received the Claimant into his home from her birth and openly held her out as his natural child. Accordingly, the Claimant has established a child-parent relationship under the Act and the agency can deem the Claimant dependent on the NH. Thus, the agency can find the Claimant is entitled to child’s benefits on the deceased NH’s record.