Under Alabama law, a man is presumed to be the father of a child who is born during the course of the marriage between the man and the child’s mother. This presumption can be rebutted only by clear and convincing evidence. In Alabama, the clear and convincing evidence standard requires evidence which tends to show that it is naturally, physically, or scientifically impossible for the husband to be the father of the child.

In this case, the claimant has not overcome the presumption that her mother's husband at the time of her birth is her father. Even if she could rebut the presumption, she has not provided clear and convincing evidence that number holder (NH) was her father.

Whether A~ (Claimant) is the child of J1~, the number holder (NH), for determining Claimant’s eligibility for Child’s Insurance Benefits (CIB) on NH’s earnings record where Claimant’s mother was married to someone else at the time of Claimant’s birth and NH is not listed on Claimant’s birth certificate as the father.

Based on the facts presented, there is no clear and convincing evidence to rebut the presumption that the mother’s husband is the father of the child and establish that the claimant is NH’s child under Alabama law.

J2~ (Claimant’s mother) and D~ (Husband) were married at the time of A~’s birth in August 2015. Claimant’s Mother and Husband were officially divorced on April XX, 2016. Claimant’s birth certificate lists Husband as Claimant’s father.

Claimant’s Mother applied for benefits for Claimant in November 2019 and January 2021. She alleged J1~ (Number Holder (NH)) was the father of Claimant. NH died on October XX, 2019, domiciled in Alabama, and never applied for benefits with the agency.

As evidence that NH was Claimant’s father, Claimant’s Mother completed two SSA-2519 forms dated December XX, 2019 and an unknown date for the second form (the dated page is missing). She stated on the form that there was an initial medical assessment form dated May XX, 2017 that listed NH as Claimant’s father. She also submitted a hand-written Alabama Application for Student Enrollment that listed NH as a person who could check out Claimant and indicated his relationship to her as father. NH’s father and sister both submitted hand-written statements alleging that NH was Claimant’s father.

The divorce decree between Claimant’s Mother and Husband indicates there were no children of the marriage. Claimant’s Mother also submitted a hand-written paper signed by her and what appears to be Husband’s signature, notarized on April XX, 2017, stating she does not share any children with Husband.

The Social Security Act (Act) establishes the criteria for entitlement to child’s insurance benefits. To qualify for child’s insurance benefits on the record of an individual who dies a fully or currently insured individual, a claimant must be that individual’s “child.” See Act § 202(d)(1); 20 C.F.R. § 404.350(a)(1) (2021). For this purpose, a “child” is an individual who is related to the insured person as a natural child, legally adopted child, stepchild, grandchild, step grandchild, or equitable adopted child. See Act § 216(e); 20 C.F.R. § 404.354(2021). When determining entitlement to surviving child’s benefits, SSA applies the inheritance laws of the state where the insured had his permanent home when he died. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1) (2021).

Because NH was domiciled in Alabama at the time of his death, we look to Alabama law to determine if Claimant is NH’s child. If the applicable state inheritance law requires a court determination of paternity, SSA will not require a court determination, but will decide paternity by using the standard of proof that the state court would use as a basis for a determination of paternity. See 20 C.F.R. § 404.355(b)(2) (2021).

Under Alabama law, Ala. Code §§ 43-8-41 through 43-8-58 (2021) controls the intestate devolution of a decedent’s estate. The part of the intestate estate not passing to a surviving spouse passes to the issue of the decedent. See Ala. Code § 43-8-42 (2021). A decedent’s issue includes his lineal descendants, with the parent-child relationship determined by the definitions of child and parent contained in the Alabama probate code. See Ala. Code § 43-8-1 (2021). In cases not involving adopting, if a relationship of a parent and child must be established to determine succession by, through, or from a person:

[A] person born out of wedlock is a child of the mother. That person is also a child of the father, if: (a) The natural parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage is void; or (b) [t]he paternity is established by an adjudication before the death of the father or is established thereafter by clear and convincing proof . . .

Ala. Code § 43-8-48(2) (2021).

Under Alabama law, a man is presumed to be the father of a child who is born during the course of the marriage between the man and the child’s mother. Ala. Code § 26-17-204(a)(1) (2021). Because Husband was married to Claimant’s mother at the time of Claimant’s birth, Claimant is presumed to be the natural child of Husband.

The presumption of a husband’s paternity is “one of the strongest and most persuasive known to the law.” Leonard v. Leonard, 360 So.2d 710, 713 (Ala. 1978). This presumption can be rebutted only by clear and convincing evidence. See Ala. Code § 26-17-204(b). Clear and convincing evidence is “[e]vidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion. Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt.” Ala. Code § 16-11-20(4) (2021).

Generally, SSA will look for clear and convincing evidence that the husband was sterile, did not have access to the wife, or other evidence that would have made sexual relations between the husband and wife impossible at the time of conception. See Program Operations Manual System (POMS) GN 00306.021. The presumption of paternity persists as long as the presumed father persists in his presumed status. See Ala. Code § 26-17-204. Further, even if the presumed father acknowledges he is not the biological father, the presumption may still persist if other evidence shows he persists in his presumed status, such as supporting the child and engaging as the father of the child. See B.C. and J.C. v. J.S.U., 158 So. 3d 464, 468 (Ala. Civ. App. 2014).

In Alabama, the clear and convincing evidence standard requires evidence “which tends to show that it is naturally, physically, or scientifically impossible for the husband to be the father” of the child. Leonard, 360 So.2d at 712 (citations omitted).

In Leonard, the wife of the decedent opposed a claim to an intestate share of the estate by four individuals who were born to a woman who was married to another man at the time of their birth. Id. at 712. The children claimed that they were the product of an adulterous relationship between their mother and the decedent. Leonard, 360 So. 2d at 711-12. The Alabama Supreme Court held that a husband and wife are not allowed to testify that the child is illegitimate, but may testify about the circumstances from which non-access by the husband and the impossibility of paternity may be inferred. Leonard, 360 So. 2d at 713. The court noted that evidence that someone other than the husband is the father of the child in question is insufficient to rebut the presumption of paternity. Id. The court also stated that a party attempting to rebut the presumption of paternity must show that the husband could not have had sexual relations with the mother at the probable time of conception. Id; see also Adams v. State, 428 So. 2d 117, 120 (Ala. Civ. App. 1983) (allowing testimony from a mother that her husband was out of the country and not present at time of conception). The court then held the evidence insufficient to rebut the presumption of paternity because the children focused their efforts on proving the decedent was their father as opposed to proving it impossible for their mother’s husband to the father. Leonard, 360 So. 2d at 713.

Clear and convincing evidence to rebut the presumption of paternity has been found where a mother was separated from her husband and living with another man during the period of conception. See Hampton v. Hampton, 597 So. 2d 233, 235 (Ala. Civ. App. 1992). In Hampton, three individuals maintained they were the children of the deceased, even though their mother was married to another man at the time of their birth. See id. at 234. The evidence established the mother separated from her husband and began living with the deceased during the period of conception. See id. at 234-35. In addition, the husband was out of state at the probable time of conception. See id.; see also Adams, 428 So. 2d at 120 (noting husband was out of country at time of conception).

In this case, Claimant’s mother submitted a statement on reconsideration that she was separated from Husband for almost two years at the time Claimant was born. The evidence also includes a statement with the divorce decree that Claimant’s mother and Husband do not share any children. It appears Claimant’s mother and Husband signed the statement. There are also reports from the sister and father of NH and statements from Claimant’s mother that NH, not Husband was the father. However, an Alabama court is not likely to find this evidence constitutes clear and convincing evidence to overcome the presumption that Husband was the father. As noted above, clear and convincing evidence may be that the husband was sterile, did not have access to the wife, or other evidence that would have made sexual relations between the husband wife impossible at the time of conception. See POMS GN 00306.021. Claimant’s mother has not alleged or stated Husband did not have access to mother at the time of conception or provided another reason to show sexual relations between them were impossible at the time of conception.. Other than the signed statement related to the divorce, there is no evidence Husband is or is not persisting in his presumed father status. As noted in Leonard, the husband and wife are not allowed to testify that the child is illegitimate, but may testify to circumstances from which non-access by the husband and impossibility of paternity may be inferred. Leonard, 360 So. 2d at 713. However, evidence that someone other than husband is the father is insufficient to rebut the presumption of paternity, especially if the presumed father persists in his role as the presume father. Id.^[1] Here there is no evidence on whether Husband has persisted in his status as the legal father of the child born during marriage. See, e.g., B.C. and J.C., 158 So.3d at 469.

A man seeking to establish paternity of a child born during the mother’s marriage to another man must be given the opportunity to establish standing in an evidentiary hearing where he and others may present evidence bearing on whether the presumed father had persisted in his presumption of paternity. See Z.W.E. v. L.B., -- So. 3d --, No.2180796, 2020 WL 3023251, *7 (Ala. Civ. App. June 5, 2020) (citing W.D.R.v. H.M., 897 So. 2d 327, 331 (Ala. Civ App. 2004). But as noted above, there is insufficient evidence here to determine whether Husband persisted in his presumed father status.

Because she has not overcome the presumption that Husband is the father, Claimant cannot then establish that NH is her father. Even if she could rebut the presumption that Husband is her father, she has not provided clear and convincing evidence that NH was her father. Because NH’s death certificate indicates he was never married, his intestate estate would pass to his linear descendants beginning with his surviving children. See Ala. Code §§ 43-8-1(15), 43-8-42(a) (2021). Because NH died before determining paternity, Claimant can inherit from NH through intestate succession only if paternity is established by clear and convincing evidence. See Ala. Code § 42-8-48(a)(b) (2021); Cotton v. Terry, 495 So. 2d 1077, 1079 (Ala. 1986).

In support of her claim that NH is the father, Claimant submitted statements from Claimant’s mother stating so, statements from Claimant’s sister and father provided handwritten statements that NH was Claimant’s father and indications on a medical record and school form that NH was Claimant’s father. This evidence is not likely to meet the clear and convincing evidence. The medical record indicating NH was there as Claimant’s father was merely noted in the record and no indication of the source of the information. Similarly, the school form appears to be completed by Claimant’s mother, which means she listed NH as Claimant’s father. Claimant provided no information or documentation prepared or completed by NH indicating he was Claimant’s father. There are statements from NH’s sister father that support the notion that NH was Claimant’s father. However, those statements alone are likely insufficient to meet the clear and convincing evidence standard.

Therefore, we conclude that under Alabama law, based on the information and evidence provided, Husband has not been rebutted as Claimant’s father and Claimant has not established by clear and convincing evidence that NH is Claimant’s father.

DNA test results showing a 99.999% probability that the deceased number holder is the claimant’s father coupled with the husband’s incarceration during the period of probable conception is clear and convincing evidence to rebut the presumption of the husband’s paternity under Alabama law and establish the claimant as the child of the number holder for purposes of child’s insurance benefits.

QUESTION

You asked whether DNA test results showing a 99.999% probability that the deceased number holder is the claimant’s father and the deceased husband’s incarceration during the period of probable conception is sufficient evidence to rebut the presumption of the husband’s paternity under Alabama law and establish the claimant as the child of the number holder for purposes of child’s insurance benefits.

We also explored the question whether the actions of the claimant’s mother constitute fraud or similar fault to allow for reopening of the claimant’s award as the legitimate child of the mother’s husband.

OPINION

For the reasons stated below, a Social Security Administration (SSA) adjudicator could conclude, based on the facts presented, that the DNA evidence submitted was clear and convincing evidence to rebut the presumption that the mother’s husband is the father of the child and establish the claimant is the number holder’s child under Alabama law. The evidence of the husband’s incarceration during the period of probable conception was insufficient, alone, to rebut the statutory presumption of the husband’s paternity. However, the evidence of incarceration adds some support to the conclusion that the husband is not the claimant’s father. Based on the DNA evidence, we believe an SSA adjudicator could still conclude the claimant is the number holder’s child for purposes of child’s insurance benefits.

In regard to the actions of the claimant’s mother, the evidence presented is insufficient to show fraud or similar fault her part. Therefore, further development is needed before we can provide an opinion on whether an SSA adjudicator could initiate an action against the claimant’s mother for fraud or similar fault.

BACKGROUND

Betty T~ (Claimant’s mother) and Matthew M~ (Husband) married on October 28, 1988. Jessica M~ (Claimant) was born on June 25, 1989. Claimant’s birth certificate lists Husband as Claimant’s father. On February 15, 2001, Husband died while domiciled in Alabama. The evidence indicates Husband and Claimant’s mother never divorced.

Husband filed an application for disability insurance benefits in September 1997 and listed Claimant as his child. After SSA granted Husband’s application, an application was filed on behalf of Claimant for child’s insurance benefits on Husband’s earnings record. The application stated Claimant was Husband’s “natural” child. Claimant’s mother stated that she did not fill out Claimant’s initial application; rather, she claims her sister filled out the application. (This information has not been verified.) Claimant received child’s insurance benefits on Husband’s earnings record from December 1997 through her eighteenth birthday, June 25, 2007.

Meanwhile, Fred C~, the number holder (NH), was granted disability insurance benefits and then retirement insurance benefits. He did not list Claimant as his child on his disability insurance benefits claim filed in December 1999. However, he did list Claimant as his child when he filed for retirement insurance benefits in March 2006. Claimant filed for child’s insurance benefits on NH’s record in July 2006. SSA denied her claim for failure to furnish evidence of paternity. Meanwhile, NH died in November 2007. Claimant filed a second application for child’s insurance benefits on NH’s record in November 2007.

As part of her second application, Claimant provided DNA test results dated July 10, 2007, showing a 99.999% probability that NH was her father. Claimant’s mother also reported that Husband could not possibly be the biological father of Claimant as he was incarcerated at the time of Claimant’s conception and birth. She claimed, however, that Claimant would still have received benefits as Husband’s stepchild rather than his natural child,¹ which was listed on the Claimant’s 1997 application. She also stated that Husband’s incarceration could be verified by Pamela M~ in the Loxley Alabama Work Release Center. When the field office contact person spoke to Ms. M~, she stated that Husband was admitted on December 11, 1986, and remained there continuously until released on July 15, 1991.

DISCUSSION

A. Paternity

The Social Security Act (Act) establishes the criteria for entitlement to child’s insurance benefits. To qualify for child’s insurance benefits on the record of an individual who dies a fully or currently insured individual, a claimant must be that individual’s “child.” See Act § 202(d)(1); 20 C.F.R. § 404.350(a)(1) (2009). For this purpose, a “child” is an individual who is related to the insured person as a natural child, legally adopted child, stepchild, grandchild, step grandchild, or equitably adopted child. See Act § 216(e); 20 C.F.R. § 404.354 (2009). When determining entitlement to surviving child’s benefits, SSA applies the inheritance laws of the state where the insured had his permanent home when he died. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1) (2009). Because NH was domiciled in Alabama at the time of his death, we look to Alabama law to determine if Claimant is NH’s child. If the applicable state inheritance law requires a court determination of paternity, SSA will not require a court determination, but will decide paternity by using the standard of proof that the state court would use as a basis for a determination of paternity. 20 C.F.R. § 404.355(b)(2) (2009).

Under Alabama law, intestate devolution of the estate of a decedent is controlled by Ala. Code §§ 43-8-41 through 43-8-58 (2009). The part of the intestate estate not passing to a surviving spouse passes to the issue of the decedent. See Ala. Code § 43-8-42 (2009). A decedent’s issue includes his lineal descendants, with the parent-child relationship determined by the definitions of child and parent contained in the Alabama probate code. See Ala. Code § 43-8-1 (2009). In cases not involving adoption, if a relationship of a parent and child must be established to determine succession by, through, or from a person:

[A] person born out of wedlock is a child of the mother. That person is also a child of the father, if: (a) The natural parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage is void; or (b) The paternity is established by an adjudication before the death of the father or is established thereafter by clear and convincing proof. . . . Ala. Code § 43-8-48(2) (2009).

In this case, Husband was married to Claimant’s mother at the time of Claimant’s birth. As, a man is presumed to be the father of a child if he and the mother of the child are married and the child is born during the marriage, Ala. Code § 26-17-204(a)(1)(2009), Husband is presumed to be Claimant’s father. As Claimant was born in wedlock, the parent-child relationship between Husband and Claimant was established and would not need to be established for purposes of intestate succession See Ala. Code § 43-8-48 (2009).

However, Claimant is now claiming NH is her biological father. Before establishing the parent-child relationship between NH and herself for purposes of intestate succession, Claimant needs to rebut the presumption of Husband’s paternity.

Here, Claimant presented DNA test results from NH showing a 99.999% probability that NH is her biological father. One way the presumption of paternity can be rebutted is by a court decree establishing paternity of the child by another man. See Ala. Code § 26-17-204(b) (2009). Therefore, the DNA test results from NH would be sufficient evidence to rebut Husband’s paternity. This statute also notes: “If two or more presumptions arise which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls.” Id. However, the Uniform Comment discussing this section notes, “Nowadays the existence of modern genetic testing obviates this old approach to the problem of conflicting presumptions when a court is to determine paternity. Nowadays, genetic testing makes it possible in most cases to resolve competing claims to paternity.” A man is rebuttably identified as the father of a child if genetic testing results disclose that the man has at least a 99 percent probability of paternity. See Ala. Code § 26-17-505(a)(1) (2009). The presumption may be overcome only by other genetic testing that excludes the man as the genetic father of the child or identifies another man as the possible father of the child. See Ala. Code § 26-17-505(b) (2009). Here, no genetic testing was done on Husband prior to his death or any other man. As previously noted, Claimant must establish NH as her parent for purposes of intestate succession. As NH is deceased, Claimant must present clear and convincing proof that NH is her biological father. See Ala. Code § 43-8-48(2)(b) (2009); Reid v. Flournoy, 600 So. 2d 1024, 1026 (Ala. Civ. App. 1992) (“Paternity proven after the death of father is required to be established by clear and convincing proof.”). Proof by clear and convincing evidence, requires a level of proof greater than a preponderance of evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt. See Ex parte C.V., 810 So.2d 700, 721 (Ala. 2001). As previously noted, Claimant presented DNA test results from NH showing a 99.999% probability that NH is her biological father.

Alabama’s intestacy statute does not address genetic testing, but its paternity statute does. Under the Alabama’s version of the Uniform Parentage Act (UPA), the paternity of a child having a presumed, acknowledged, or adjudicated father may be disproved only by admissible results of genetic testing excluding that man as the father of the child or identifying another man as the father of the child. Ala. Code § 26-17-631(1) (2009). Although we found no Alabama statute that expressly states that Alabama courts will use the UPA paternity presumption in an intestacy proceeding, case law indicates an Alabama court will apply the same rules of paternity adjudications under the UPA and the state’s intestacy statute. In Blackmon v. Brazil, 895 So. 2d 900 (Ala. 2004), the Supreme Court addressed whether an adjudication of paternity under the state’s intestacy statute, Ala. Code § 43-8-48(2)(b), was subject to the statute of limitations under Ala. Code § 6-2-33(2) (2009). Id. at 908. The Court noted first that the language of Ala. Code § 43-8-48(2)(b) neither exempted nor subjected a paternity proceeding for intestacy purposes to the statute of limitations. Id. Next, the court found the state legislature intended to subject a UPA proceeding for an adjudication of paternity to establish the right of inheritance in a child born out of wedlock to the statute of limitations. The Court concluded that Ala. Code § 43-8-48(2)(b) was subject to the statute of limitations, because an adjudication of paternity to establish inheritance rights for a child born out of wedlock under the UPA was subject to the same statute of limitations. Id. Because the Supreme Court of Alabama is willing to apply provisions applicable to UPA paternity determinations when determining the inheritance rights of children born out of wedlock under the intestacy statute, we conclude that the courts will look to the paternity provisions in the UPA to govern the paternity proceedings under the state’s intestacy statutes, and as such, would apply the UPA provisions on genetic testing.

Here, the DNA tests results from NH showed a 99.999% probability that NH is Claimant’s biological father. As previously noted, a man is rebuttably identified as the father of a child if genetic testing results disclose that the man has at least a 99 percent probability of paternity. See Ala. Code § 26-17-505(a)(1) (2009). The presumption may be overcome only by other genetic testing that excludes the man as the genetic father of the child or identifies another man as the possible father of the child. See Ala. Code § 26-17-505(b) (2009). In this case, no such evidence was submitted. Therefore, the DNA test results would be sufficient evidence under Alabama law to establish a presumption that NH is Claimant’s father.

Claimant’s mother also reported that Husband could not possibly be the biological father of Claimant as he was incarcerated at the time of her conception and, therefore, there was a lack of access. “[L]ack of access to the wife during the time that pregnancy would have occurred may overcome the presumption that the husband is the father.” Hampton v. Hampton, 597 So. 2d 233, 234 (Ala. Civ. App. 1992) (citations omitted). The party attempting to rebut the presumption of paternity must show that the husband could not have had sexual relations with the mother at the probable time of conception. See Leonard v. Leonard, 360 So. 2d 710, 713 (Ala. 1978). Also, the clear and convincing evidence test has been met where both the mother and her husband testified that she became pregnant before their relationship began. See C.T.J. v. A.S.J., 816 So. 2d 61, 64 (Ala. Civ. App. 2001). Here, due to Husband’s death, he is unable to provide a statement regarding the nature of his relationship to Claimant’s mother at the time of Claimant’s conception.

However, a mother can testify to circumstances from which nonaccess by her husband and the impossibility of his parenthood may be inferred. Leonard, 360 So. 2d at 713 (citing Franks v. State, 161 So. 2d 549 (1935)).

A lack of conjugal visits coupled with Husband’s continued incarceration could provide clear and convincing evidence that it was physically impossible for Husband to be Claimant’s father. See Hampton, 597 So.2d at 234-35 (husband moved out of state and did not see wife is clear and convincing evidence to rebut the presumption of paternity). Ms. Pamela M~ in the Loxley Alabama Work Release Center, told a field office contact person that Husband was admitted on December 11, 1986, and remained there continuously until released on July 15, 1991. As this was a work release center and not a jail or prison, I contacted Ms. M~ and asked her if it was possible that Husband left the facility at any time during his incarceration. She stated that it was possible and the records showed that from June 1988 through December 1988 Husband was on “work release” status, which allowed him to leave the center for work. Notably, this was during the same period that Claimant’s conception took place and the same period when Husband and Claimant’s mother were married. Therefore, there is a possibility that Husband had access to Claimant’s mother. Whether Husband actually was out on work release would require additional investigation. Such investigation is the responsibility of Claimant as she is the individual attempting to rebut the presumption of Husband’s paternity. Therefore, we believe an SSA adjudicator could not find that the evidence of Husband’s incarceration alone was sufficient evidence to rebut the statutory presumption of his own paternity.

B. Fraud

Social Security Regulations allow reopening of a determination or decision at any time, if it is obtained by fraud or similar fault. See 20 C.F.R. § 404.988(c)(1) (2009). If an individual “makes or causes to be made any false statement for representation of a material fact in any application for any payment or for a disability determination under this subchapter,” that individual is guilty of a felony. See Section 208(a) of the Act. In regard to reopening, fraud exists where a person “[w]ith intent to defraud, conceals or fails to disclose a material fact for use in determining rights to Social Security benefits.” POMS GN 04020.010.A.1.b. Similar fault exists when a person “[k]nowingly conceals information that is material to the determination. However, fraudulent intent is not required.” POMS GN 04020.010.A.2.b. Courts have found that misrepresentations about domestic or financial status constitute “fraud or similar fault” for purposes of reopening a Social Security claim. See, e.g., Heins v. Shalala, 22 F.3rd 157, 162 (7th Cir. 1994) (holding reopening justified on ground of similar fault when claimant failed to report remarriage and signed application which stated none other to question regarding other marriages); Marshall v. Chater, 75 F.3d 1421, 1427 (10th Cir. 1996) (holding reopening justified when claimant fraudulently, or at least knowingly, made incorrect statements regarding his income and hours and/or withheld such material information); Fowler v. Bowen, 876 F.2d 1451, 1455 (10th Cir.1989) (holding that substantial evidence supported ALJ’s finding that claimant’s incorrect statement regarding employment status and failure to reveal substantial earnings constituted fraud or similar fault).

Here, benefits were filed on behalf of Claimant in 1997 and Claimant was listed as the natural child of Husband. Claimant’s mother alleges that she was not the individual who filled out the application for Claimant’s benefits; rather, she claims Husband’s sister filled out the application. The accuracy of this statement has not been verified by SSA. A copy of 1997 application would need to be obtained to verify this statement. Claimant’s mother also alleges Husband could not possibly be the biological father of Claimant and he was aware of this, as he was incarcerated at the time of Claimant’s probable conception. However, as previously noted, due to Husband’s death, he is unable to provide a statement regarding the nature of his relationship to Claimant’s mother at the time of Claimant’s probable conception. Also, the source that Claimant’s mother stated could verify Husband’s incarceration provided insufficient evidence to support or discount the mother’s allegation. Therefore, we believe the evidence presented is insufficient to show fraud or similar fault on the part of Claimant’s mother. Further development of the evidence is needed before we can provide an opinion on whether an SSA adjudicator could initiate an action against Claimant’s mother for fraud or similar fault.

CONCLUSION

Therefore, we conclude that, under Alabama law, an SSA adjudicator could conclude that the DNA test results supported by the evidence of Husband’s incarceration during the period of probable conception provide clear and convincing evidence to rebut the presumption of Husband’s paternity and establish NH’s paternity. Consequently, Claimant would be NH’s child under Alabama intestacy law and for the purposes of child’s insurance benefits on NH’s record.

As the evidence presented is insufficient to show fraud or similar fault on the part of Claimant’s mother, further development is needed before we can provide an opinion on whether an SSA adjudicator could initiate an action against Claimant’s mother for fraud or similar fault.

Very truly yours,

Mary A. S~

Regional Chief Counsel

/s/

Simone D. P~

Assistant Regional Counsel

¹ We question whether Claimant can qualify as the stepchild of Husband, given that the marriage between a claimant’s parent and the stepparent must have occurred after the claimant’s birth (or at least after her conception). See 20 C.F.R. § 404.357. While an SSA adjudicator might consider the date Claimant’s mother and Husband were married, October 28, 1988, and the date of Claimant’s birth, June 25, 1989, and conclude Claimant was conceived before her mother and Husband were married, such a conclusion is by no means certain. Further development would be needed to determine Claimant’s status as Husband’s stepchild.

The Agency is not bound by a court decision to which it was not a party. In this case, a court order was issued after the number holder's death indicating that he, not the mother's husband, was the claimant's father. Since the issue before the court was not paternity and inheritance rights and because there is no indication that this issue was genuinely contested before the State court by parties with opposing interests, the clear and convincing standard to overcome the presumption of paternity is not met.

QUESTION

You asked whether a court order stating the number holder is the biological father of the child claimant provides clear and convincing evidence to establish paternity after the death of the number holder.

OPINION

For the reasons set forth below, a Social Security Administration (SSA) adjudicator could not conclude, based on the facts presented, that Claimant provided clear and convincing evidence to establish paternity after the death of the number holder. However, additional evidence, if obtained, could change our advice.

BACKGROUND

According to your inquiry, Bradley S. H~ (NH) died on February 14, 1992, while domiciled in Alabama. On November 27, 2007, Nellie C~, the custodial caregiver of NaKira H~ (Claimant), filed an application on Claimant's behalf for child's benefits on NH's account. However, Claimant's mother, Shannon H~, was married to Raymond H~ (Raymond) when Claimant was born on November 20, 1992. In addition, a letter from an Alabama District Attorney indicates Raymond was incarcerated in a State of Alabama Department of Corrections facility consecutively from September 14, 1990, through November 4, 1999.

On October 9, 2007, the Juvenile Court of Marshall County, Alabama issued an amended order of dependency and custody. The Court found Raymond was not Claimant's father and that NH was Claimant's natural father. The Court also ordered that the Alabama Department of Vital Statistics amend Claimant's birth certificate to reflect NH as the father. Claimant provided a copy of her original birth certificate designating Raymond as her father, but she has not provided a copy of an amended birth certificate.

DISCUSSION

To qualify for child's insurance benefits on the record of an individual who dies a fully or currently insured individual, a claimant must be that individual's "child." See Social Security Act (Act) § 202(d)(1); 20 C.F.R. § 404.350(a)(1) (2007). A "child" for purposes of section 202(d)(1) of the Act includes an individual who is the insured person's natural child. See Act § 216(e), 42 U.S.C. § 416(e); 20 C.F.R. § 404.354 (2007).

A claimant can qualify as the insured person's natural child if, among other methods, the claimant could inherit the insured person's personal property as his or her child under the intestacy laws of the state where the insured has his permanent home when he died. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b) (2007). Because NH was domiciled in Alabama when he died, we look to Alabama law.

Under Alabama law, a man is presumed to be the father of a child who is born during the course of the marriage between the man and the child's mother. See ALA. CODE § 26-17-5(a)(1) (2007). Because Raymond was married to Claimant's mother at the time of Claimant's birth, Claimant is presumed to be the natural child of Raymond.

The presumption of a husband's paternity is "one of the strongest and most persuasive known to the law." Leonard v. Leonard, 360 So. 2d 710, 713 (Ala. 1978). This presumption can be rebutted only by clear and convincing evidence. See ALA. CODE § 26-17-5(b). Generally, SSA will look for clear and convincing evidence that the husband was sterile, did not have access to the wife, or other evidence that would have made sexual relations between the husband and wife impossible at the time of conception. See Program Operations Manual System (POMS) GN 00306.021.

In Alabama, the clear and convincing evidence standard requires evidence "which tends to show that it is naturally, physically or scientifically impossible for the husband to be the father" of the child. Leonard, 360 So. 2d at 712 (citations omitted).

In Leonard, the wife of the decedent opposed a claim to an intestate share of the estate by four individuals who were born to a woman who was married to another man at the time of their birth. Id. at 712. The children claimed that they were the product of an adulterous relationship between their mother and the decedent. Leonard, 360 So. 2d at 711-712. The Alabama Supreme Court held that a husband and wife are not allowed to testify that the child is illegitimate, but may testify about the circumstances from which non-access by the husband and the impossibility of paternity may be inferred. Leonard, 360 So. 2d at 713. The court noted that evidence that someone other than the husband is the father of the child in question is insufficient to rebut the presumption of paternity. Id. The court also stated that a party attempting to rebut the presumption of paternity must show that the husband could not have had sexual relations with the mother at the probable time of conception. Id.; see also Adams v. State, 428 So. 2d 117, 120 (Ala. Civ. App. 1983) (allowing testimony from a mother that her husband was out of the country and not present at the time of conception). The court then held the evidence insufficient to rebut the presumption of paternity because the children focused their efforts on proving the decedent was their father as opposed to proving it impossible for their mother's husband to be the father. Leonard, 360 So. 2d at 713.

Clear and convincing evidence to rebut the presumption of paternity has been found where a mother was separated from her husband and living with another man during the period of conception. See Hampton v. Hampton, 597 So. 2d 233, 235 (Ala. Civ. App. 1992). In Hampton, three individuals maintained they were the children of the deceased despite the fact that their mother was married to another man at the time of their birth. See id. at 234. The evidence established the mother separated from her husband and began living with the deceased during the period of conception. See id. at 234-35. In addition, the husband in Hampton was out of state at the probable time of conception. See id.; see also Adams, 428 So. 2d at 120 (noting husband was out of country at time of conception).

In this case, Claimant submitted a court order finding Raymond was not her father. Under Social Security Ruling (SSR) 83-37c, the Agency is not bound by a state trial court's determination to which it was not a party. However, the Agency cannot ignore the decision that meets all four of the following prerequisites: "(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." SSR 83-37c; adopting the rationale of Gray v. Richardson, 474 F.2d 1370 (6th Cir. 1973). Here, it appears that the court was a court of competent jurisdiction. However, it does not appear that paternity and inheritance were the issues before the court. The order is entitled "Amended Dependency and Custody Hearing Order on Private Petition." In addition, the order does not indicate that the issue of paternity was genuinely contested by parties with opposing interests. Nothing in the court's order indicates a party represented the interests of Raymond or NH. The court specifically stated the child's father was not present and found he was deceased. Moreover, the court entered the order "per the terms of the stipulation agreement." Furthermore, it is unclear whether the court's order is consistent with the law enunciated by the highest court in Alabama regarding overcoming the presumption of legitimacy. The court's order does not appear to address the presumption of paternity or cite any "clear and convincing evidence" to overcome the presumption of legitimacy. The court actually mentioned "clear and convincing" to establish that Claimant was dependent, but no such terminology was used by the court when it determined Raymond was not Claimant's father. Because all four elements have not been met, the Agency is not bound by the court order.

Moreover, the court order in and of itself does not provide clear and convincing evidence. The order stated the issues before it were dependency and custody, not paternity. The order also does not state what evidence the court examined to determine issues of paternity. In addition, the findings of the court were based upon a stipulation of the parties that has not been provided to the Agency. Testimony of a mother and her husband is not sufficient to overcome the presumption of legitimacy. See Evans v. Evans, 434 So. 2d 257, 257 (Ala. 1983).

To further support her application for benefits, Claimant provided a letter from an Alabama district attorney that indicates Raymond was incarcerated during the period of conception. According to information in the file, Raymond and Claimant's mother did not have conjugal visits during his incarceration. A lack of conjugal visits coupled with Raymond's continued incarceration could provide clear and convincing evidence that it was physically impossible for Raymond to be Claimant's father. See Hampton, 597 So.2d at 234-35 (husband moved out of state and did not see wife is clear and convincing evidence to rebut the presumption of paternity); Adams, 428 So.2d at 120 (during time of conception, husband was stationed in Germany and wife testified she did not see him during that time).

However, even assuming Claimant provided sufficient evidence to overcome the presumption that Raymond is her father, she has not provided clear and convincing evidence that NH was her father. Because NH was unmarried, his intestate estate would pass to his linear descendants beginning with his surviving children. See ALA. CODE §§ 43-8-1(15), 43-8-42(1) (2007). Because NH died before Claimant's birth, she can inherit from NH through intestate succession only if paternity is established by an adjudication before the father's death or, thereafter, by clear and convincing evidence. See ALA. CODE § 43-8-48(2)(b) (2007); Cotton v. Terry, 495 So. 2d 1077, 1079 (Ala. 1986). Clear and convincing evidence is "[e]vidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion. Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt." ALA. CODE § 16-11-20(4) (2007).

In support of her claim that NH is her father, Claimant submitted the court order discussed above. As stated above, the Agency is not bound by the order pursuant to SSR 83-37c. Furthermore, this order by itself does not provide clear and convincing evidence to establish paternity. Again, the order does not discuss the evidence the court looked at to determine that Claimant is NH's child, and the order did not even discuss the clear and convincing standard.

In addition, the file contains Claimant's birth certificate which lists Raymond, and not NH, as her father. We note the court ordered a new birth certificate to be issued listing NH as Claimant's father, but the record does not include an amended birth certificate. We note that Alabama law requires a valid court determination of paternity to amend a birth certificate. See ALA. CODE § 22-9A-12 (2007). Alabama law also provides that a certified copy of a vital record, such as a birth certificate, shall be prima facie evidence of the facts stated in the copy. See ALA. CODE § 22-9A-22(a)(2) (2007). However, competent evidence can refute the prima facie case established. See McCoy v. McCoy, 549 So.2d 53, 56-57 (Ala. 1989). If you obtain an amended birth certificate, we would be pleased to determine if it changes our advice, above.

CONCLUSION

Therefore, we conclude that, under Alabama law, an SSA adjudicator could not conclude that the facts provide clear and convincing evidence to establish NH's paternity of Claimant.

Very truly yours,

Mary A. S~

Regional Chief Counsel

/s/

Jennifer L. P~

Assistant Regional Counsel

The Alabama Supreme Court has ruled that a husband and wife are not allowed to testify that a child is illegitimate, but may testify about the circumstances from which non-access by the husband and the impossibility of paternity may be inferred.

In a case where statements from the mother and other relatives support a finding of "non-access", Alabama courts would find such evidence sufficient to rebut the presumption of paternity by the clear and convincing standard.

QUESTION

You asked whether the admissions of a claimant's mother and statements collected from family members and others can rebut the Alabama presumption of paternity for a child born in wedlock.

ANSWER

For the reasons stated below, we believe a Social Security Administration (SSA) adjudicator could find the evidence submitted in this case sufficient under Alabama law to rebut the presumption of paternity and conclude the child, Hunter G. L~ (Claimant), would not be entitled to benefits based on the account of the number holder (NH), Danny L~.

BACKGROUND

NH is a resident of Alabama. NH married Claimant's mother, Anita C~ (Mother) on November 14, 2001. On November 19, 2001, Mother gave birth to Claimant. Claimant's birth certificate lists him as the child of Mr. and Mrs. Danny E. L~. NH and Mother were divorced in Neshoba County, Mississippi on April 10, 2006. Neither the Judgment of Divorce nor the Property Settlement Agreement acknowledges the existence of Claimant or addresses the issues of custody, visitation or support. On April 14, 2006, a motorcycle accident left NH severely brain damaged and unable to communicate.

On October 24, 2006, Mother filed a claim on Claimant's behalf for auxiliary child's benefits on NH's account. When questioned by a claims representative, Mother admitted that NH was not Claimant's biological father. On November 1, 2006, Mother submitted a signed statement under oath (SSA-795) that NH is not the biological father of Claimant but placed his name on Claimant's birth certificate and accepted all responsibility for the child since birth. Mother stated she and NH had been living together since she was three months pregnant. Mother also admitted that both families were aware of the circumstances surrounding Claimant's birth. Mother contends she does not know the identity of Claimant's biological father.

The claims representative contacted NH's mother, Vida B~, who provided a signed statement (SSA-795) that Mother was four to five months pregnant when she met and began dating NH. NH's mother said she referred to both Mother's children as NH's step-children. NH's brother, Donny L~, provided a similar statement by phone. The claims representative also contacted Robert T~, the divorce attorney for NH and Mother, who said Mother told him the couple had no children. Neither the brother nor the attorney submitted signed statements.

DISCUSSION

Entitlement to Child's Insurance Benefits - In General

To qualify for auxiliary child's benefits on the record of an individual entitled to disability benefits, a claimant must be that individual's child. See § 202(d) of the Social Security Act (Act), 42 U.S.C. § 402(d); 20 C.F.R. § 404.350(a)(1) (2006). A "child" for purposes of this regulation means an individual who is related to the insured person as a natural child, legally adopted child, stepchild, grandchild, stepgrandchild, or equitably adopted child. See § 216(e) of the Act, 42 U.S.C. § 416(e); 20 C.F.R. § 404.354 (2006). Only the provisions relating to a natural child or stepchild could apply to this claim.

A claimant can qualify as an insured person's stepchild if the claimant was conceived prior to the marriage but born during the course of the marriage and the insured is not the claimant's natural parent. See 20 C.F.R. § 404.357 (2006). However, a claimant will not be entitled to benefits as a stepchild on the earnings record of a number holder who is a former stepparent divorced from the child's natural parent. GN 00306.230(A)(3)(b). In this case, Mother and NH divorced approximately six months before the application for auxiliary child's benefits was filed. Therefore, Claimant is not entitled to benefits as NH's stepchild.

A claimant can qualify as the insured person's natural child if, among other methods, the claimant could inherit the insured's personal property as his or her child under the intestacy laws of the state where the insured has his permanent home when the claim for child's benefits was filed. See § 216(h)(2)(A) of the Act; 20 C.F.R. § 404.355(b) (2006). Because NH is domiciled in Alabama, the question is whether an Alabama court would consider Claimant to be NH's child for purposes of intestate succession.

Alabama Law Applied to this Claim

Since NH is unmarried, his intestate estate would pass to his linear descendants beginning with his surviving children. ALA. CODE §§ 43-8-1(15), 43-8-42(1) (2006). A man is presumed to be the father of a child who is born either during the course of the marriage between the man and the child's mother or within 300 days after the marriage. ALA. CODE § 26-17-5(a)(1) (2006). This statutory presumption does not require that the child be conceived during the marriage, only that the child is born during the course of the marriage. See Ex parte C.A.P., 683 So. 2d 1010, 1012 (Ala. 1996). Since NH was married to Mother at the time of Claimant's birth, Claimant is presumed to be the natural child of NH and entitled to inherit from NH's estate.

This presumption can only be rebutted by clear and convincing evidence. ALA. CODE § 26-17-5(b) (2006). Generally, SSA will look for clear and convincing evidence that the husband was sterile, did not have access to the wife, or other evidence which would have made sexual relations between the husband and wife impossible at the time of conception. GN 00306.021. SSA also recognizes that the manner by which such evidence is evaluated varies from state to state. GN 00306.026.

In Alabama, the clear and convincing evidence standard requires a showing that it is "naturally, physically or scientifically impossible for the husband to be the father" of the child. Leonard v. Leonard, 360 So. 2d 710, 713 (Ala. 1978). In Leonard, the wife of the decedent opposed a claim to an intestate share of the estate by four individuals who were born to a woman who was married to another man at the time of their birth. The children claimed that they were the product of an adulterous relationship between their mother and the decedent. See Leonard, 360 So. 2d at 711-712.

The Alabama Supreme Court said the husband and wife are not allowed to testify that the child is illegitimate, but may testify about the circumstances from which non-access by the husband and the impossibility of paternity may be inferred. See Leonard, 360 So. 2d at 713. Furthermore, evidence that someone other than the husband is the father of the child in question is insufficient. Id. The party attempting to rebut the presumption of paternity must show that the husband could not have had sexual relations with the mother at the probable time of conception. See Leonard, 360 So. 2d at 713; see also Adams v. State, 428 So. 2d 117, 120 (Ala. Civ. App. 1983) (allowing testimony from a mother that her husband was out of the country and not present at the time of conception).

The clear and convincing evidence test has been met where both the mother and her husband testified that she became pregnant before their relationship began. See C.T.J. v. A.S.J., 816 So. 2d 61, 64 (Ala. Civ. App. 2001). Due to NH's impairment, he is unable to provide a statement regarding the nature of his relationship, if any, to Mother at the time of Claimant's conception. Mother stated that she was three months pregnant when she began living with NH. Mother has not made an explicit statement as to when her relationship with NH began and whether he could have impregnated her. However, Mother has stated unequivocally that NH is not Claimant's biological father and she does not know the identity of the biological father. We believe that an SSA adjudicator could find this to be more than a statement that Claimant is illegitimate. Mother's statements to SSA could be viewed as an implicit recognition of non-access by NH at the time of conception. Furthermore, NH's mother said Mother was already pregnant when she met and began dating NH. It would appear from the evidence gathered that both Mother and NH conveyed to their respective families that NH was not Claimant's biological father.

We recognize that an argument could be made to the contrary since historically a statement by a mother that her spouse is not the father of a child has been insufficient to meet this standard. See Franks v. State, 161 So. 549, 551 (Ala. Ct. App. 1935). However, given the similarity between this case and C.T.J. above, we believe a SSA adjudicator could find the evidence in this case to be sufficient to rebut the statutory presumption of paternity. Mother's statements to members of her family and an SSA claims representative demonstrate a belief that it would have been impossible for NH to be Claimant's biological father.

CONCLUSION

Therefore, while an SSA adjudicator could conclude that the evidence here is insufficient to prove access was impossible, there is more support under Alabama law for concluding the evidence presented is sufficient to rebut the presumption that NH is Claimant's father. If the adjudicator concludes Claimant could not inherent from the NH through intestacy under Alabama law, Claimant would not be entitled to child's benefits. See 20 C.F.R. § 404.350(a)(1); see also 20 C.F.R. § 404.355.

Mary A. S~

Regional Chief Counsel

By:__________________

Christopher G. H~

Assistant Regional Counsel

In Alabama, there is a strong presumption of legitimacy. Barring clear and convincing evidence to rebut the presumption, a child born to the number holder's widow within 300 days of the number holder's death would be found to be a child of the deceased by an Alabama court.

Question Presented

You asked whether a child born 296 days after a number holder's (NH's) death is presumed to be his legitimate child under Alabama law.

Short Answer

Under Alabama law, there is a strong presumption that a man is the father of a child if he was married to the mother and the child was born within 300 days after his death. Because there does not appear to be clear and convincing evidence to rebut the presumption of paternity, a Social Security Administration (SSA) adjudicator could find that the child was NH's legitimate child and that she would be eligible to receive benefits based on NH's account.

BACKGROUND

NH was a resident of Alabama when he died on April 23, 2005. His widow, Raye M~ N~ (Mother), gave birth to Fallen N~ (Claimant) by cesarean section on February 14, 2006. Although Claimant was born 296 days (and over 42 weeks) after NH's death, the operative report shows that the pregnancy was at 35 weeks gestation. Mother listed NH as the father on Claimant's birth certificate. On April 11, 2006, Mother filed an application for mother's insurance benefits and an application for child's survivor benefits on Claimant's behalf. Mother indicated that Claimant was born late due to lack of development during the gestation period. Because Claimant was born more than 287 days after NH's death, you requested our opinion regarding the status of the child pursuant to POMS GN 00306.020B(5).

DISCUSSION

To qualify for child's insurance benefits on the record of an individual entitled to old-age or disability benefits, a claimant must be that individual's child. See Social Security Act (Act), § 202(d)(1), 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350(a)(1). A claimant can qualify as the insured person's natural child if, among other methods, the claimant could inherit the insured person's personal property as his or her child under the intestacy laws of the state where the insured person was domiciled when he died. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355. Because NH was domiciled in Alabama at the time of his death, we would look to Alabama law.

The natural or adopted child of NH would be entitled to a share of NH's intestate estate. See ALA. CODE §§ 43-8-1(2), 43-8-42(1), 43-8-48 (2006). Additionally, the child of NH conceived before his death but born thereafter inherits as if the child had been born in NH's lifetime. See ALA. CODE § 43-8-47 (2006). It is also a longstanding rule of the common law, and recognized in Alabama, that a child born to a married woman is presumed to be the legitimate offspring of the husband. See Leonard v. Leonard, 360 So. 2d 710, 712 (Ala. 1978); see also POMS 00306.020A(1). In this case, NH and Mother were married at the time of his death; and as a result, Claimant would be presumed to be NH's natural child if it is deemed she was conceived prior to his death.

SSA acknowledges the paternity presumptions applied by most states for children born in wedlock, but also recognizes that it is appropriate to question the natural legitimate status of the child under certain situations, including when the child was born more than 287 days after the death of the mother's husband. See POMS 00306.020B(5). Under Alabama law, however, a man is the natural father of a child who is born either during the course of the marriage between the man and the child's mother or within 300 days after the marriage is terminated by divorce or death. See ALA. CODE § 26-17-5(a)(1) (2006).

The presumption of legitimacy "is one of the strongest and most persuasive known to the law." Leonard, 360 So. 2d at 713. This presumption "may be rebutted . . . only by clear and convincing evidence." ALA. CODE § 26-17-5(b) (2006). "Evidence that is clear and convincing requires a stronger showing than merely substantial evidence." Reid v. Flournoy, 600 So. 2d 1024, 1026 (Ala. Civ. App. 1992). The evidence rebutting the presumption of legitimacy must show that "it is naturally, physically, or scientifically impossible for the husband to be the father." Finkenbinder v. Burton, 477 So. 2d 459, 460 (Ala. Civ. App. 1985) (citations omitted) (emphasis in original).

In Leonard the Alabama Supreme Court found that the testimony of the mother that she had lived separately from her husband for several years and a declaration of the putative father were insufficient to rebut the presumption that the mother's children were the children of her husband. See Leonard, 360 So. 2d. at 712-713. Similarly, in Finkenbinder the court found that tissue and blood-typing tests showing a 97.1% probability of the putative father's paternity were insufficient to overcome the presumption that a child born during marriage was the legitimate child of the mother's husband. See Finkenbinder, 477 So. 2d at 461.

In contrast, the Alabama Court of Civil Appeals found in Hampton v. Hampton, 597 So. 2d 233 (Ala. Civ. App. 1992), that the mother and putative father had presented clear and convincing evidence to rebut the presumption of her husband's paternity where there was evidence that the husband was living in another state when the children were conceived and a number of witnesses testified that the mother and putative father lived together as common-law husband and wife and the putative father had acknowledged the children and held them out in the community as his. See id. at 234. Additionally, in S.L.C. v. State ex rel., 667 So. 2d 120 (Ala. Civ. App. 1995), the court found that the mother successfully rebutted the presumption that her husband was the father of her child rather than the putative father where (1) blood tests implicated the putative father, (2) mother and the putative father were engaged in unprotected sexual intercourse during the time of conception, (3) the putative father was present at the hospital during birth, (3) the putative father wrote a letter to the child acknowledging paternity, and (5) there was general acceptance in the community that the putative father was the biological father. See id at 122.

In this case, the only evidence suggesting that NH is not Claimant's father is a notation in the Operative Report dated February 12, 2006, indicating that the pregnancy was at 35 weeks gestation at the time of Mother's cesarean section. It is not readily apparent that this notation is sufficiently precise to establish that it is physically and scientifically impossible for NH to be Claimant's father. Moreover, there are no blood tests or other evidence suggesting that another man is Claimant's putative father. Additionally, there are no witness statements suggesting that NH is not Claimant's father. Given the strong presumption of legitimacy, we do not believe that there is clear and convincing evidence for an SSA adjudicator to conclude that it is naturally, physically, or scientifically impossible for NH to be Claimant's father.

CONCLUSION

For the foregoing reasons, we believe that Claimant is the legitimate child of NH for the purposes of child's insurance benefits. See Act § 202(d)(1); 20 C.F.R. § 404.350(a)(1).

Mary A. S~

Regional Chief Counsel

By:__________________

Joseph P. P~, III

Assistant Regional Counsel

DNA test results indicating that the NH is excluded as the father of the entitled child constitutes new and material evidence to support a reopening of the initial determination. Such evidence rebuts the presumption of the child's legitimacy under Alabama law.

Your office has requested our assistance in making an eligibility determination in the following factual situation. Hugh J. H~ filed for disability benefits in September 1998. Two children became entitled on his record as natural legitimate children based on the mother's application on their behalf. Mr. H~ is listed as the father on the children's birth records.

The mother, Sharon H~, filed for a divorce from the wage earner and the Circuit Court of Houston County, Alabama entered a final judgment of divorce on February 15, 2000. A document was filed with the court in this proceeding reporting on the results of DNA testing that was done on one of the children, A'Jade H~ and the wage earner. The report states: "Hugh H~ is excluded as the father of A'Jade H~." The Circuit Court recognized the findings of the DNA testing and decreed that A'Jade S. H~ was not the child of the wage earner. The specific question posed is whether this child can remain entitled on the wage earner's account in light of the new evidence.

A'Jade H~'s entitlement to child's benefits will not cease unless that determination is reopened and revised. 20 C.F.R. § 404.987. An initial determination can be reopened within four years if there is good cause for the reopening. 20 C.F.R. § 404.988. Good cause will exist when new and material evidence is furnished. 20 C.F.R. §404.989 (a)(1). The divorce decree declaring that A'Jade was not the child of the wage earner was the equivalent of a state court paternity determination and is new and material evidence which could support a reopening of the initial determination.

POMS Section GN 04001.070 states that:

"A determination which was correct when it was made is still correct even if there is subsequently a change in the factual situation. New and material evidence can only be used to reopen and revise incorrect determinations, i.e., determinations which were never correct, but appeared to be correct based on the evidence before the adjudicator at the time the determination was made."

Alabama Code Section 26-17-5(a)(1) provides that:

(a) A man is presumed to be the natural father of a child if any of the following apply:

(1) He and the child's natural mother are or have been married to each other and the child

is born during the marriage."

(b) A presumption of paternity under this section may be rebutted in an appropriate action only by clear and convincing evidence.

Alabama courts have determined that DNA testing is acceptable evidence to determine the paternity of a child. See eg. State ex rel. C.T.G. v. M.A.B., 723 So.2d 644 (Ala. 1997). Moreover, a divorce court has equitable jurisdiction to make a paternity determination. See eg. Floyd v. Floyd, 701 So.2d 1151 (Ala. 1997). Therefore, the divorce decree determining the paternity of A'Jade can be "new and material evidence" to support a reopening and the reopening decision would be retroactive back to the date of the initial decision.