The purpose of this memorandum is to respond to your request for a legal opinion regarding
whether an Arkansas birth certificate listing the putative father's name is sufficient
to establish evidence of paternity, absent written consent of the purported father
to have his name to appear on the certificate as required by State law. According
to information supplied with your request for an opinion, the number holder Maurice
J~ died on August 29, 2003, while domiciled in Tennessee. Three days prior to his
death, on August 26, 2003, Mr. J~ filed a claim for disability insurance benefits
under Title II of the Social Security Act (the Act). 42 U.S.C. § 423(d)(1)(A). On
that disability claim, Mr. J~ acknowledged Demarcus Young as his only child. On September
22, 2003, a claim for child's insurance benefits under the Act was filed on behalf
of Heaveney L. J~ on Mr. J~' earning's record. According to a certified copy of the
Arkansas birth certificate, Heaveney was born in West Memphis, Arkansas, on November
4, 2001. The birth certificate lists Evette S. G~ (H~) as the child's mother, and
Mr. J~ as the child's father. Ms. G~ and Mr. J~ never married.
Your request for an opinion states that the Arkansas birth certificate was the only
evidence submitted to establish the child relationship. Apparently the claim was initially
allowed. However, you have now requested a legal opinion given the fact that the Arkansas
birth certificate does not list whether Mr. J~ gave his written consent to have his
name placed on the birth certificate as Heaveney's father. Based upon the reasons
discussed herein, it is our opinion that no evidence has been provided with your request
for a legal opinion demonstrating that Mr. J~ gave his written consent to place his
name on Heaveney's birth certificate as the putative father as required by State law.
Therefore, the fact that Mr. J~' name appears on the birth certificate cannot by itself
serve as written acknowledgement of paternity.
To be considered the insured person's natural child for purposes of entitlement to
Social Security benefits under section 216(h)(2) of the Act one of the following conditions
must be met: (1) the child would be entitled to inherit through intestate succession
under the laws of the state in which the insured person was domiciled when he died;
or (2) the parents of the child went through a marriage ceremony which did not create
a valid marriage because of a legal impediment. 42 U.S.C. § 416(h)(2)(A) and (B).
However, an applicant who is not deemed to be the child of the insured under section
216(h)(2) of the Act shall nevertheless be deemed to be the child of the insured under
section 216(h)(3) of the Act if: (1) prior to the death of the insured individual,
he acknowledged the child in writing, had been decreed by a court to be the father
of the child, or had been ordered to contribute to the support of the child because
of paternity; or (2) the insured person is shown by satisfactory evidence to be the
father of the child and was living with the child or contributing to the child's support
at the time such insured individual died. 42 U.S.C. §§ 416(h)(3)(C)(i) and (ii).
If the insured is deceased, the Social Security Administration will apply the law
on inheritance rights in the state where the insured individual had his permanent
home when he died. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. §§ 404.355(b)(1) and (b)(4)
(2004). In this case, the evidence indicates that the deceased number holder was domiciled
in Tennessee; therefore, Tennessee intestacy law would normally apply. Id. However, on July 29, 2004, the Regional Office of the General Counsel in Atlanta
issued a legal opinion where they concluded that under the "most significant relationship"
doctrine, Tennessee courts would determine that the birth status of Heaveney, and
whether Mr. J~' name was properly placed on the birth certificate, would be governed
by Arkansas State law since both Mr. J~ and Ms. G~ were living in Arkansas at the
time of Heaveney's birth.
As our Office has previously concluded that, since February 19, 1981, under Arkansas
law, if the mother was not married at the time of conception or birth, or anytime
between conception and birth, the name of the father shall not be entered on the birth
certificate without written consent of the mother and the person to be named as the
father. See OGC legal opinion No. 99-163, entitled "Establishing Precedents for Using Information
from Child's Birth Certificate as Written Acknowledgment or Proof of Court Order of
Paternity," dated November 20, 2000 (reviewing prior Ark. Code Ann. § 20-18-401(e)(2)(1981)
and Ark. Code Ann. § 20-18-401(f)(2) (Repl. 2000)). Additionally, we also stated that
in any case where the paternity of the child is determined by a court of competent
jurisdiction, the name of the father shall be entered on the birth certificate in
accordance with the findings and order of the court. Id. A review of the relevant statute at issue shows no major changes from our prior November
2000 opinion./
The method to obtain consent of the mother and putative father is governed through
the use of paternity affidavits. See Ark. Code Ann. § 20-18-408 (current through the end of the 2003 Second Extraordinary
Sess). Under this statute, "[u]pon the birth of a child to a woman that was unmarried
at the time of either conception or birth or between conception and birth, the person
responsible under § 20-18-401 for providing birth registration information shall .
. . provide an opportunity for the child's mother and natural father to complete an
affidavit acknowledging paternity, to include such information as is required by the
court to establish paternity and establish child support obligation, and to be filed
with the Division of Vital Records of the Department of Health." Ark. Code Ann. §
20-18-408(1). However, prior to signing the affidavit, the mother and natural father
must be provided written information explaining the implications of signing the affidavit
and their resulting parental rights and responsibilities. Ark. Code Ann. § 20-18-408(2).
Our Office could only find one case which discussed the relevant Arkansas statutory
section at issue. In 2001, the Arkansas Court of Appeals reversed a Chancery Court's
decision to amended a divorce decree entered 14 months prior to reflect, in part,
that the appellant was not the child's biological father when paternity was not even
at issue in the original divorce proceeding. See Slusher
v. Slusher, 73 Ark.App. 303, 306-07, 43 S.W.3d 189, 191-92 (Ark.Ct.App. 2001). While the court
reversed the case primarily because the lower court had amended the judgment outside
of the permissible time period specified under the Arkansas rules of civil procedure;
nevertheless, in a concurring opinion the honorable Judge Neal stated that:
In this state, if the mother of a child is not married at the time of either conception
or birth, the name of the father is not to be entered on the child's birth certificate
unless the mother and the putative father sign an affidavit of paternity. [citing
to Ark. Code Ann. § 20-18-401(f)(2)]. Prior to signing the affidavit, the mother and
natural father are given written information explaining the implications of signing
the affidavit and their resulting parental rights and responsibilities. [citing to
Ark. Code Ann. 20-18-408(2)]. Once the mother and the putative father execute an acknowledgement
of paternity pursuant to section 20-18-408, the man executing the document is the
father of the child for all intents and purposes and the acknowledgements, by operation
of law, constitute a conclusive finding of paternity. Id.
Applying these principles to the facts of this case, it is our opinion that the proper
State law procedure for placing Mr. J~' name on the birth certificate was not followed.
Since Heaveney was born in Crittenden Memorial Hospital, it was the responsibility
of hospital personnel to obtain the required consent through a paternity affidavit
from both the mother and putative father before placing Mr. J~' name on the birth
certificate. See Ark. Code Ann. §§ 20-18-401(b), 20-18-408. While State law provides that both the
paternity affidavit and birth certificate are to be filed with the Division of Vital
Records of the Department of Health, it seems likely that Crittenden Hospital personnel
would have also kept a copy of such existing documentation. Id. However, no documentation supporting the existence of the paternity affidavit, thus
establishing the putative father's consent to have his name placed on the birth certificate,
has been provided. Therefore, the fact that Mr. J~' name appears on the birth certificate
cannot by itself serve as written acknowledgement of paternity.
Tina M. W~
Regional Chief Counsel
By:____________________
Thomas C. S~
Assistant Regional Counsel