QUESTION
You asked whether a parent-child relationship exists between number holder J~ (NH)
and claimants K~ and T~ (Claimants) for purposes of determining Claimants’ entitlement
to child’s insurance benefits on the NH’s record. Here, the NH consented to assisted
reproduction with the Claimants’ biological mother and openly held out the Claimants
as her own children. The couple later married in California but were domiciled in
Nevada.
SHORT ANSWER
Yes. Under Nevada law, the NH is the Claimants’ presumed parent because she received
the Claimants into her home and openly held them out as her own children. Alternatively,
under Nevada law, there is a parent-child relationship because the NH consented to
her spouse’s assisted reproduction, which resulted in the Claimants’ birth. Under
either alternative, the Claimants could inherit from the NH if she died without a
will. Accordingly, the Claimants have established a child-parent relationship under
the Social Security Act (Act) and the agency can deem the Claimants dependent on the
NH. Thus, the agency can find the Claimants are entitled to child’s benefits on the
NH’s record.
SUMMARY OF EVIDENCE
The NH and her spouse, M~, have lived together in L~, Nevada, since October 2003.
In May 2006, M~ conceived Claimants through in vitro fertilization (IVF) with donor sperm after she and the NH unsuccessfully attempted
to adopt children. According to the NH, M~, and their physician at the Fertility Center
of Law Vegas, the NH was involved in the IVF process, attended medical appointments
with M~, gave her injections, and co-signed the consent forms.[1] M~ gave birth to the Claimants in December 2006 in Long Beach, California.[2] The Claimants’ birth certificates list both the NH and M~ as their parents. The NH
also signed the Claimants’ birth certificates as the informant, indicating she was
their mother. The NH states she has not adopted the Claimants because she is named
on their birth certificates.
Following the Claimants’ birth, the NH left her job to care for them. She legally
changed her last name to “R~,” adding M~’s last name to her own for continuity in
the family name. In July 2008, shortly after same-sex marriage became legal in California,
the NH and M~ were married in S~, California.[3] The Claimants participated in the wedding.
According to statements and documentation submitted by the NH and M~, the NH is identified
as the Claimants’ parent in their passport applications; hospital, pediatrician and
dental records; daycare, camp and school records; tax returns; and insurance policies.[4] The NH named the Claimants as beneficiaries in her will and had them added to a family
tree that an aunt prepared for a family reunion. Since their birth, the NH has been
the primary caregiver for the Claimants, has taken them to medical and dental appointments,
and has referred to the Claimants as her daughters to family, friends, and the public.
Both the NH and M~ state that it was always their intention to be a family unit together
with the Claimants.
The NH filed an application for retirement benefits on March XX, 2016. On the application,
she stated she had two minor children—the Claimants. She also submitted applications
for auxiliary child benefits for the Claimants.
APPLICABLE LAW
Federal Law
Under the Act, every unmarried minor child of an insured individual is entitled to
child insurance benefits. Social Security Act § 202(d)(1). However, to receive child
insurance benefits, the applicant must qualify as the insured individual’s “child”
and be dependent on the insured individual at the time she filed her application.
See id. Section 216(e)(1) of the Act defines a “child” as “the child or legally adopted
child of an individual.” Social Security Act § 216(e)(1). The Act further provides
that in determining whether an applicant is the child of an insured individual, the
agency “appl[ies] such law as would be applied in determining the devolution of intestate
personal property by the courts of the State such insured individual is domiciled”
when the applicant files her application. Social Security Act § 216(h)(2)(A).
An applicant who satisfies the requirements of section 216(h)(2)(A) of the Act is
also deemed dependent upon the insured individual. 20 C.F.R. § 404.361(a) (“If you
are the insured’s natural child, as defined in § 404.355, you are considered dependent
upon him or her”); Social Security Ruling 77-2c (“where state intestacy law provides
that a child may take personal property from a father’s estate, it may reasonably
be thought that the child will more likely be dependent during the parent’s life...”).
Here, the NH was domiciled in Nevada when she filed her application for benefits.
Therefore, the agency looks to Nevada intestacy law to determine whether the Claimants
are the NH’s children for purposes of entitlement to benefits.
Nevada Law
Under Nevada intestacy laws, an intestate decedent’s estate goes to his or her child
when there is no surviving spouse. Nev. Rev. Stat. (NRS) § 134.090. Nevada law defines
child as “a person entitled to take as a child by intestate succession from the parent
whose relationship is involved,” excluding a stepchild. NRS § 132.055. Because Nevada
intestacy laws do not further define “child,” Nevada courts look to the State’s Uniform
Parentage Act (UPA), codified at chapter 126 of the NRS, to determine parentage for
purposes of intestate succession. In re Estate of Murray, 344 P.3d 419, 421-22 (Nev. 2015); see also St. Mary v. Damon, 309 P.3d 1027, 1031 (Nev. 2013) (“To determine parentage in Nevada, courts must
look to the Nevada Parentage Act ….”).
The Nevada UPA provides several ways to establish parentage. NRS §§ 126.041 (establishing
parent-child relationship), 126.051 (presumptions of paternity). “Insofar as practicable,”
statutes regarding determination of paternity also apply to determine the existence
of a mother and child relationship. NRS § 126.231; see St. Mary, 309 P.2d at 1032 (noting that a statute establishing a presumption of paternity
based on evidence of a genetic relationship could be used to establish a mother-child
relationship).
Among other things, a man is presumed to be the father of a minor child if he receives
the child into his home and openly holds out the child as his own.[5] NRS § 126.051(1)(d); see In re Estate of Murray, 344 P.2d at 424 (upholding presumption of paternity where claimant demonstrated
the decedent received her into his home and openly held her out as his child). A presumption
of paternity may be rebutted by clear and convincing evidence. NRS § 126.051(3).
A parent-child relationship may be established if, among other things, a man or woman
consents to assisted reproduction pursuant to NRS sections 126.670 and 126.680, which
results in the birth of the child.[6] NRS § 126.041(1)(e) & (2)(c). Under section 126.670, “[a] person who provides gametes
for, or consents to, assisted reproduction by a woman, as provided in NRS 126.680,
with the intent to be a parent of her child is a parent of the resulting child.” NRS
§ 126.670. Section 126.680 instructs that consent to assisted reproduction must be
in writing, but the absence of a signed consent does not preclude a finding of parentage
“if the woman and the person, during the first 2 years of the child’s life, resided
together in the same household with the child and openly held out the child as their
own.” NRS § 126.680(1) & (2).
ANALYSIS
Parent-Child Relationship
Because the NH was domiciled in Nevada at all relevant times, the agency applies Nevada
law to determine whether a parent-child relationship can be established between the
NH and the Claimants. If, under Nevada law, the Claimants could inherit from the NH
if she died without a will, then the agency will find the Claimants are the NH’s children
for purposes of child benefits. See Social Security Act § 216(h)(2)(A)(a); 20 C.F.R. § 404.345. Here, a parent-child
relationship can be established between the NH and the Claimants in two ways, as discussed
in turn below. As such, the Claimants could inherit from the NH under Nevada’s intestacy
laws and the agency will find Claimants are entitled to child’s insurance benefits
on the NH’s record.
1. The NH Is Presumed To Be the Claimants’ Parent under NRS section 126.051(1)(d)
Under the NRS, a man is presumed to be the father of a minor child if he receives
the child into his home and openly holds out the child as his own. NRS § 126.051(1)(d).
This presumption, like other paternity presumptions, may be used to establish maternity
as well. See NRS § 126.231; St. Mary, 309 P.2d at 1032. Here, the evidence shows the NH satisfies both requirements to
be the Claimants’ presumed parent under NRS section 126.051(1)(d).
(a) The NH Received the Claimants into Her Home
The first prong of section 126.051(1)(d) is satisfied because the evidence shows the
NH received the Claimants into her home, where she served as their primary caregiver
since birth. See In re Estate of Murray, 344 P.2d at 424 (upholding presumption of paternity where claimant demonstrated
the decedent received her into his home and openly held her out as his child).
(b) The NH Openly Held Out the Claimants as Her Own Children
With respect to the second prong of section 126.051(1)(d), Nevada law is not well
developed on what constitutes “holding out” to establish parentage. In Hermanson v. Hermanson, 887 P.2d 1241, 1244 (Nev. 1994), the court noted that the putative father held himself
out as the child’s parent where he consented to being named on the birth certificate
and he was named as the child’s father in a welfare application. Here, as in Hermanson, the NH was named on the Claimants’ birth certificates, which she also signed as
informant and mother; the NH also was named as the Claimants’ parent in their passport
applications. See id.
Since there is little Nevada authority on point and because Nevada courts look to
California law when interpreting Nevada’s UPA, it is reasonable to consider how California
courts have interpreted a “holding out” to determine whether the requirement is satisfied
here. See St. Mary, 309 P.3d at 1034 (finding “California’s precedent is highly persuasive because it
pertains to a statutory scheme that is substantially similar to Nevada’s and advances
the policies that underlie the Nevada Parentage Act.”), citing Elisa B. v. Superior Court, 37 Cal. 4th 108 (Cal. 2005).
Like section 126.051(1)(d) of the NRS, section 7611(d) of the California Family Code
provides for a presumption of parentage where a parent receives the child into her
home and openly holds out the child as her own. Cal. Fam. Code § 7611(d). California
courts have found a presumption of maternity where a woman receives a child into her
home and openly holds out the child as her own, even where the woman is not the child’s
biological parent. See Elisa B., 37 Cal. 4th at 119-20; L.M. v. M.G., 208 Cal. App. 4th 133, 138-41 (Cal. Ct. App. 2012). When determining whether a parent
has held out the child as her own, California courts look to the conduct of the alleged
parent, including whether she was involved during her partner’s pregnancy; whether
she sought to have her name placed on the birth certificate; whether and how long
she cared for the child; whether and how widely she acknowledged that she was the
child’s parent; whether she provided for the child after it no longer resided with
her; whether she assisted with necessary paperwork for the child’s receipt of benefits;
and whether her care for the child was merely incidental. E.C. v. J.V., 202 Cal. App. 4th 1076, 1087 (Cal. Ct. App. 2012), citing In re T.R., 132 Cal. App. 4th 1201, 1211 (2005). Not all factors need to be shown; rather, the “common thread [is] whether, through
his or her conduct, an alleged parent has demonstrated a commitment to the minor child
and the minor child’s well-being, thereby distinguishing the alleged parent as someone
who has entered into a familial relationship with the child from someone who has not.”
Id.
Here, the NH is identified as the Claimants’ parent on their birth certificates, which
she signed as informant and mother. The NH is also named as the Claimants’ parent
in their hospital, pediatrician and dental records; their daycare, camp and school
records; the NH’s tax return; and the NH’s insurance policies. The NH named the Claimants
as beneficiaries in her will and had them added to a family tree. The NH has been
the Claimants’ primary caregiver since birth and has taken them to medical and dental
appointments. She has referred to the Claimants as her daughters to family, friends,
and the public. The NH identified the Claimants as her minor children in her application
for benefits, and she applied for auxiliary child benefits for them based on her record.
Finally, the NH and M~ state that they have been—and continue to be—a family unit
together with the Claimants. Based on this evidence, a California court would likely
conclude that the NH “has demonstrated a commitment to the minor child and the minor
child’s well-being” sufficient to constitute “holding out” within the meaning of section
7611(d) of the California Family Code. E.C., 202 Cal. App. 4th at 1086. Therefore, a Nevada court would also likely find this evidence
sufficient to meet the “holding out” requirement in section 126.051(1)(d) of the NRS.
See St. Mary, 309 P.3d at 1033-34 (finding California precedent “highly persuasive” and “highly
instructive” in interpreting Nevada’s UPA).
(c) The NH’s Presumption of Parentage Is Unrebutted
Finally, a parentage presumption may be rebutted by clear and convincing evidence.
NRS § 126.051(3). In this case, there is no evidence rebutting the presumption that
the NH is the Claimants’ parent, nor is there evidence that any person besides the
NH and M~ have acted as parents to the Claimants.
Accordingly, the NH can establish a presumption of parentage vis-à-vis the Claimants
because the unrebutted evidence shows she received the Claimants into her home and
openly held them out as her own children. See NRS § 126.051(1)(d). Because the NH is the Claimants’ presumed parent under NRS 126.051(1)(d),
the Claimants could inherit intestate from her. See In re Estate of Murray, 344 P.3d at 421-424 (holding that child who was entitled to a presumption of paternity
properly inherited from her presumed father, who died intestate).
2. The NH Consented to Assisted Reproduction that Resulted in the Claimants’ Birth
Alternatively, the NH can establish a parent-child relationship with the Claimants
because she consented to M~s IVF procedures, which resulted in the Claimants’ birth.
Under section 126.041(1)(e) of the NRS, a parent-child relationship may be established
between a woman and a child if the woman consents to assisted reproduction pursuant
to sections 126.670 and 126.680, which results in the child’s birth. The statute does
not state—and research did not reveal—that this consent must be from the woman who
gives birth to the child as opposed to her same-sex partner. See generally St. Mary, 309 P.3d at 1034 (holding that Nevada’s UPA permits a child to have two legal mothers
where one woman had her egg fertilized through artificial insemination and implanted
into her female partner).
Section 126.041(1)(e) references NRS section 126.670, which provides that “[a] person
who … consents to assisted reproduction by a woman … with the intent to be a parent
of her child is a parent of the resulting child.” NRS § 126.670. Notably, section
126.670 refers to a “person” (not a “man”) consenting to assisted reproduction by
a woman, demonstrating that the statute applies where a woman’s same-sex partner provides
consent. Here, the NH consented to the IVF procedures that resulted in M~ giving birth
to the Claimants, as evidenced by the letter from Dr. D~ at the fertility center, who stated the NH “was involved in the entire [in vitro fertilization] process and
attended office visits with [M~]. She also co-signed the forms required to consent
to the procedures being performed.” Additionally, the NH and M~ both indicated it
was their intent to form a family unit when they began the process of assisted reproduction
that resulted in the conception and birth of the Claimants. This evidence satisfies
the requirements of section 126.670.
Section 126.041(1)(e) also references NRS section 126.680, which requires written
consent to the assisted reproduction. NRS § 126.680(1). Here, although the NH did
not provide copies of her signed consent forms, Dr. D~ stated that she co-signed all
consent forms for M~’s IVF procedures, as noted above. Moreover, the absence of written
consent does not preclude a finding of parentage “if the woman and the person, during
the first 2 years of the child’s life, resided together in the same household with
the child and openly held out the child as their own.” NRS § 126.680(2). Statements
submitted by the NH and M~ demonstrate that they lived together with the Claimants
in the same household since the Claimants’ birth and openly held them out as their
own children for at least the first two years of their lives. See id. For example, the NH and M~ are identified as the Claimants’ parents on their birth
certificates, which the NH signed as informant and mother. The NH and M~ are also
named as the Claimant’s parents in other records prepared within the first two years
of Claimant’s lives, including passport applications and hospital records. Additionally,
they have referred to the Claimants as their children since before their birth. Therefore,
even absent copies of the IVF consent forms, the evidence shows the NH and M~ lived
together with the Claimants in the same household and openly held them out as their
own children during the first two years of their lives, as required under section
126.680(2).
Accordingly, a parent-child relationship may be established between the NH and the
Claimants under section 126.041(1)(e) of the NRS because the NH consented to M~’s
IVF procedures pursuant to sections 126.670 and 126.680, which resulted in the Claimants’
birth. As the NH’s children, the Claimants could inherit intestate from her. See NRS §§ 134.090, 132.055.
Finally, in considering the evidence as a whole, Nevada courts would likely conclude
that the State’s policy objective of promoting the best interests of children would
be met by finding a parent-child relationship here. See Love v. Love, 959 P.2d 523, 527 (Nev. 1998) (recognizing the legislature’s primary intent in creating
presumptions of paternity in section 126.051 was to ensure that children were supported
by their parents).
Dependency
Because the Claimants could inherit intestate from the NH, they are also deemed dependent
upon her. See 20 C.F.R. § 404.361(a). The agency will therefore find a parent-child relationship
exists between the NH and the Claimants such that the Claimants are entitled to benefits
on the NH’s record. See Social Security Act § 202(d)(1).
CONCLUSION
Under Nevada law, a parent-child relationship can be established between the NH and
the Claimants in two ways. First, the NH is the Claimants’ presumed parent because
she received the Claimants into her home and openly held them out as her own children.
Alternatively, there is a parent-child relationship between the NH and the Claimants
because the NH consented to M~’s IVF, which resulted in the Claimants’ birth. Under
either alternative, pursuant to Nevada law, the Claimants could inherit from the NH
if she died without a will. Accordingly, for purposes of child’s benefits, the agency
can find the Claimants are the NH’s children pursuant to the Act and the agency will
deem the Claimants dependent upon the NH.