SYLLABUS
Under Louisiana intestate succession law, a deceased individual’s property passes
to his or her descendants, e.g., children and grandchildren, by blood or by adoption.
The term “children” for purposes of intestate succession includes persons born of
the parent’s marriage, persons adopted by the parent, and persons whose filiation
to the parent has been established as provided by law. Filiation is the legal relationship
between a child to a parent and gives the child the right to inherit intestate property
from the parent. Filiation is established by proof of maternity, paternity, or adoption.
Louisiana recognizes a child’s filiation to more than one father. Under Louisiana
law, once the parent-child relationship is established, it is effective as of the
date of the child’s birth regardless of his or her parents’ marital status or of the
method or type of evidence used to prove the relationship.
In this case, there is legal support for the agency to find that the child is the
NH’s natural child under the Act based on Louisiana intestate succession law and the
Louisiana state court’s consent judgment declaring the NH to be the child’s father.
The effective date of the parent-child relationship is the date of the child’s birth.
QUESTIONS PRESENTED
You requested an opinion on whether the evidence submitted in this case, particularly
a Louisiana state court consent judgment regarding paternity based on a deoxyribonucleic
acid (DNA) test report, establishes a parent-child relationship between the number
holder M~ (NH) and the claimant R~ (the Child) for purposes of entitlement to child’s
insurance benefits on the NH’s record under the Social Security Act (Act) as his child.
If so, you inquired as to the effective date of their parent-child relationship. Specifically,
you asked whether the Louisiana state court consent judgment operates retroactively
or prospectively to establish paternity, and if any documents in the file establish
the relationship prior to the consent judgment.
If the Child is the NH’s child, you also asked whether there is a stepparent-child
relationship between the Child and the NH’s spouse, J~, for purposes of entitlement
to child’s insurance benefits on J~’s record under the Act as her stepchild. You indicated
that the NH married J~ in December 2007, after the Child’s birth on February XX, 2007.[15]
ANSWER
We believe that there is legal support for the Social Security Administration (SSA
or agency) to find that the Child is the NH’s child under the Act based on application
of Louisiana intestate succession law and the Louisiana state court’s consent judgment
declaring the NH to be the Child’s father and that the effective date of their parent-child
relationship is the date of the Child’s birth, February XX, 2007. We also believe
that the agency could reasonably conclude that the Child is J~’s stepchild under the
Act, assuming the agency has proof of a valid marriage between the NH and J~.
BACKGROUND
As we understand the facts, the Child was born out of wedlock in New Orleans, Louisiana,
on February XX, 2007. His original birth record, filed June XX, 2007, listed C~ (the
Child’s mother) as his mother and T~ as his father. In 2009, T~ filed an application
with SSA for child’s insurance benefits for the Child on T~’s record, which SSA granted
on February XX, 2009. It is our understanding that the Child’s mother and T~ never
married. It is also our understanding that the Child lived with the Child’s mother
until her death on April XX, 2017, at which time, the Child began living with the
NH and his spouse, J~. In February 2017 and again in September 2017, the NH, domiciled
in Louisiana, filed an application for child’s insurance benefits on the Child’s behalf
on his record stating that the Child was his child.[16] He also filed for child’s insurance benefits on the Child’s behalf on his spouse’s
record (J~) as her stepchild. The NH stated that he and J~ married in December 2007,
but we were not provided with any evidence regarding their marriage in conjunction
with this legal opinion request. In support of his relationship with the Child, the
NH provided the following documents, as well as a number of oral statements to the
agency recorded in agency reports of contact.
A. Petition for Name Change and Louisiana State Court Name Change Judgment
Changing the Child’s Last Name to the NH’s Last Name
On January XX, 2017, the Child’s mother, T~, and the NH jointly petitioned the Twenty-Fourth
Judicial District Court for the Parish of Jefferson, State of Louisiana (Court), to
change the Child’s last name from T~’s last name to reflect the NH’s last name. The
petition stated that the Child’s mother was the Child’s biological mother, and while
T~ was named as the Child’s father on the birth certificate, an informal DNA report
dated November XX, 2016, evidenced that the NH was the Child’s biological father.
The DNA report was not attached to the name change petition.
On February XX, 2017, the Court entered a judgment legally changing the Child’s last
name to the NH’s last name and ordering this new name to be the lawful name in the
miscellaneous records of Jefferson, State of Louisiana, as the law requires.
B. Petition to Establish Paternity, DNA Evidence, and Louisiana State Court
Consent Judgment Establishing the NH as the Child’s Father
On May XX, 2017, the Child, represented by his legal father, T~, filed a petition
with the Court to establish paternity against the NH. The petition named the NH as
the defendant and stated that the Child’s mother died on April XX, 2017. As to the
issue of paternity, the petition stated that:
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•
the Child was born on February XX, 2007,
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•
although T~ was listed as “father” on two of the Child’s birth certificates, the NH
was the Child’s biological father per informal DNA testing dated November XX, 2016,
-
•
the NH had acknowledged the Child as his own through a name change petition previously
filed with the Court which contained a statement that the NH was the “the biological
father of the minor child,”
-
•
the Court ordered the Child’s name change from T~’s last name to the NH’s last name
on February XX, 2017, and
-
•
a new Social Security card was issued for the Child showing the NH’s last name.
The petition moved the Court to appoint an expert qualified as an examiner of blood
and tissue samples for inherited characteristics, and to order the NH and the Child
to submit to the collection of blood and tissue samples for analysis by the Court
appointed expert to produce a report regarding the issue of paternity. The petition
stated that the NH was not opposed to establishing his paternity and would voluntarily
submit to the Court’s appointed expert. T~ submitted the petition in “proper person”
and signed a sworn verification on May XX, 2018, affirming that the facts and allegations
in the petition were true and correct to the best of his knowledge.
On May XX, 2017, the Court ordered that DNA Diagnostics Center (DDC), an expert qualified
as an examiner of blood and tissue samples, be appointed to conduct tests for inherited
characteristics, including but not limited to blood and tissue type, and to prepare
a written report to be filed in the matter with copies to the parties and their counsel.
A “certified” DNA test report that DDC’s laboratory director signed on June XX, 2017,
stated that DDC was accredited and certified, named the NH as the Child’s alleged
father, and stated that their samples were collected on May XX, 2017. The report concluded
that the NH was not excluded as the Child’s biological father, and based on an analyses
of the DNA loci listed, the probability of paternity was 99.99995%, which was calculated
by comparing to an untested, unrelated, random individual of the Black population
(assuming prior probability equaled 0.50). The laboratory director verified that the
interpretation of the results was correct. The test was subscribed and sworn before
a notary public on June XX, 2017.
On June XX, 2017, the Court entered a consent judgment establishing the NH as the
Child’s biological father. The Court stated that the Child was born out of wedlock
on February XX, 2007, and based on a review of the entire record, including the DNA
test report from DDC dated June XX, 2017, and the stipulations and consent of the
parties, declared the NH to be the Child’s biological father. The Court ordered the
Louisiana State Vital Records Office, and all other appropriate agencies for the parishes
of and the State of Louisiana and the federal government of the United States of America,
to amend their records to reflect the foregoing, including but not limited to, listing
the NH as the Child’s “father” on the Child’s birth certificate.
On August XX, 2017, an amended birth certificate was issued listing the NH as the
Child’s father, and SSA was provided a copy.
C. The NH’s Statements in Form SSA-795 Regarding his Relationship with and
Support for the Child
In the Form SSA-795 Statement of Claimant or Other Person, which the NH provided on
November XX, 2017, he stated that the Child’s mother told him years ago he was the
Child’s father, but because T~ signed paternity documents and was listed as the Child’s
father on the birth certificate, he did not pursue or establish paternity. He provided
a written statement, stating that:
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•
the Child lived with his mother prior to moving in with him in April 2017;
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•
the Child’s mother first mentioned that the NH was the Child’s father years ago, but
she did not pursue support, and T~ acknowledged paternity;
-
•
the Child’s maternal grandmother was in charge of the Child’s benefits (on T~'s record);
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•
the NH and J~ did not give the Child’s mother money while the Child was living with
his mother in 2016 because they were still in the process of establishing paternity,
but that they did buy food, clothing, and other essentials for the Child beginning
in November 2016, when the NH and the Child took an over-the-counter paternity test;
-
•
after the paternity test, he began the process to establish his paternity as to the
Child through court; and
-
•
the NH and J~ started providing full financial support for the Child effective April
2017, the month he moved in with them following his mother’s death that same month.
ANALYSIS
A. Entitlement to Child’s Insurance Benefits under the
Act
Under Title II of the Act, a claimant may be entitled to child’s insurance benefits
on an insured individual’s account if, among other things, he is the insured number
holder’s child.[17] See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350. The Act and regulations define “child”
as an insured number holder’s natural child, legally adopted child, stepchild, grandchild,
step grandchild, or equitably adopted child. See 42 U.S.C. § 416(e); 20 C.F.R. §§ 404.354 – 404.359. Consistent with the scope of
your request, our inquiry focuses on whether the Child is the NH’s natural child and
J~’s stepchild.
B. The Child’s Application for Child’s Insurance Benefits as the NH’s Natural
Child
1. Natural Child under the Act
In assessing a claimant’s status as a natural child, the agency must determine whether
the claimant could inherit the insured number holder’s personal property as his child
under the intestate succession laws of the state where the insured number holder was
domiciled at the time of the application. See 42 U.S.C. § 416(h)(2)(A);[18] 20 C.F.R. § 404.355(a)(1), (b). Because the NH was domiciled in Louisiana at the
time he filed the claim for child’s insurance benefits on the Child’s behalf, we apply
Louisiana intestate succession laws to determine whether the Child could inherit from
the NH as his child. See
id.
2. Paternal Inheritance under Louisiana Intestate Succession Laws
Under Louisiana intestate succession law, a deceased individual’s property passes
to his or her descendants (e.g., children and grandchildren) by blood or by adoption.
La. Civ. Code Ann. arts. 880, 882, 888. The term “children” for purposes of intestate
succession includes: persons born of the parent’s marriage, persons adopted by the
parent, and persons whose filiation to the parent has been established as provided
by law. La. Civ. Code Ann. art. 3506(8). Here, there is no evidence of adoption or
evidence that the NH was married to the Child’s mother at the time of his birth, and
thus, we consider whether the Child has established filiation with the NH. Filiation
is the legal relationship between a child to a parent and gives the child the right
to inherit intestate property from the parent. See La. Civ. Code Ann. arts. 178, 197, Revision Comment (a). Filiation is established
by proof of maternity, paternity, or adoption. La. Civ. Code Ann. art. 179. Here,
we consider whether filiation has been established by proof of the NH’s paternity
as to the Child such that the Child has the right to inherit under Louisiana intestate
succession law.
We note that although T~ was named on the Child’s original Louisiana birth certificate,
Louisiana recognizes a child’s filiation to more than one father, and a child seeking
to establish paternity does so without affecting in any way the child’s filiation
to another man. See La. Civ. Code Ann. art. 197, Revision Comments (a), (b). T~, on behalf of the Child,
filed a petition to establish the NH’s paternity. A child may at any time initiate
a court action to establish paternity even though the child is presumed to be another
man’s child. La. Civ. Code Ann. art. 197. If the child establishes paternity, all
of the civil effects of filiation apply to both the child and the father, including
the right to inherit intestate. See La. Civ. Code Ann. art. 197, Revision Comment (a). Proof of paternity is a factual
question, and a trial court’s determination of the issue should not be disturbed,
absent manifest error. See
Litton v. Litton, 624 So.2d 472, 475 (La. Ct. App. 1993).
Here, in an action the Child initiated to establish paternity, a Louisiana court issued
a consent judgment and order declaring the NH as the Child’s biological father and
ordering that all agency records be updated to reflect the NH as the Child’s father,
including the Child’s Louisiana birth certificate. This consent judgment as to the
NH’s paternity would appear to establish the Child’s filiation with the NH and thus,
his right to intestate succession under Louisiana law. Consistent with Social Security
(SSR) 83-37c, we consider whether this state court consent judgment declaring the
NH to be the Child’s biological father binds the agency, and even if it does not,
whether it would be reasonable for the agency to defer to this consent judgment to
support the Child’s status as the NH’s child.
3. SSR 83-37c: Application of the Four Gray Factors to the Louisiana
Consent Judgment Establishing the NH’s Paternity
Generally, a state court decision does not bind the agency if it involves a proceeding
to which the agency was not a party. See SSR 83-37c (adopting Gray v.
Richardson, 474 F.2d 1370 (6th Cir. 1973)); see also POMS GN 00306.001(C)(3) (providing that when determining a child’s relationship under state law, where
the evidence includes a state court decision on the issue, SSA is not necessarily
bound by the court decision; referring the agency to SSR 83-37c for the applicable
criteria of Gray v.
Richardson). Pursuant to SSR 83-37c, which adopts the Sixth Circuit’s Gray decision, state court determinations of domestic relations matters are entitled to
deference and bind the agency only if the following four factors are satisfied:
-
1.
an issue in a claim for Social Security benefits was previously adjudicated by a state
court of competent jurisdiction;
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2.
the issue was genuinely contested before the state court by parties with opposing
interests;
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3.
the issue falls within the general category of domestic relations law; and
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4.
the resolution by the state trial court is consistent with the law enunciated by the
highest court in the state.
SSR 83-37c.[19] We next apply the four Gray factors to the Louisiana consent judgment declaring the NH to be the Child’s father.
As detailed next, although the Louisiana consent judgment does not meet one of the
four Gray factors (the genuinely contested factor) and thus, does not bind the agency for this
reason, we believe there is legal support for the agency to defer to the consent judgment
to find that the Child has established the NH’s paternity, and thus, the Child’s filiation
with the NH such that the Child has the right to inherit from the NH under Louisiana
intestate succession law.
a. The Consent Judgment Meets the First Gray Factor as it Involves
a Court of Competent Jurisdiction and the Issue of the NH’s Paternity as to the Child
We believe that the agency could reasonably conclude that the consent judgment meets
the first Gray factor. The Louisiana court that issued the consent judgment establishing paternity
– the Twenty-Fourth Judicial District Court for the Parish of Jefferson – is a court
of competent jurisdiction having jurisdiction over domestic relations and family law
matters. See La. Rev. Stat. Ann. § 13:717(C) (providing that two of the three commissioners of
the Twenty-Fourth Judicial District Court will have jurisdiction with civil matters
involving domestic relations and family law and will have all the powers of a judge
of a district court); La. Const. Ann. art. V, § 16(A) (providing that a district court
shall have original jurisdiction of all civil and criminal matters except as provided
by law).
b. The Consent Judgment Does Not Meet the Second Gray Factor
because the Issue of the NH’s Paternity Was Not Genuinely Contested
We believe the agency could reasonably conclude, however, that the consent judgment
does not meet the second Gray factor – that parties with opposing interests genuinely contested the issue before
the state court. To be genuinely contested, an issue must be disputed by parties with
opposing interests. See Gray, 474 F.2d at 1373. In this case, the NH, though named as a defendant and therefore
an adversarial party in the paternity petition, voluntarily submitted to DNA testing
and consented to the judgment declaring him as the Child’s biological father. Therefore,
the Court’s consent judgment did not involve a genuinely contested issue and does
not appear to meet the second Gray factor. See generally Ho v. Martin Marietta Corp., 845 F.2d 545, 547 (5th Cir. 1988) (holding that judicial consent decrees, while
final judgments on the merits, are also settlements to which adversarial parties have
consented); Kaspar Wire
Works, Inc. v. Leco Eng’g & Mach., Inc., 575 F.2d 530, 539 (5th Cir. 1978) (stating that “the purpose of a consent decree
is typically to avoid the litigation of any issue” and that “[i]n the case of a judgment
entered without contest by confession, consent, or default, none of the issues is
actually litigated”)(internal citation omitted); Paradigm Ins. Co. v. Walters
Diving & Marine, Inc., 1999 WL 172952, at *3 (E.D. La. Mar. 29, 1999) (relying on Kaspar to state that “consent decrees do not reflect the considered judgment of a judicial
officer after an adversarial trial.”).
c. The Consent Judgment Meets the Third Gray Factor because the
Issue of Paternity is a Domestic Relations Matter
With respect to the third prong of SSR 83-37c, we believe that the agency could reasonably
conclude that the consent judgment declaring the NH as the Child’s biological father
involves an issue within the general category of domestic relations law because it
involves the issue of paternity. See La. Rev. Stat. Ann. § 13:717(C) (providing the Twenty-Fourth Judicial District Court
with jurisdiction over civil matters involving domestic relations and family law).
Therefore, we believe that the Louisiana consent judgment meets the third Gray factor as well.
d. The Consent Judgment Meets the Fourth Gray Factor because the
Judgment is Consistent with Louisiana Law
Finally, we believe that the agency could reasonably conclude that the consent judgment
meets the fourth Gray factor. A court order meets the fourth Gray factor if it is consistent with “the law of the state as declared by the supreme
court of the state, or as it would have been decided by that court had the point been
considered.” See
Garcia, 883 F.2d at 20; Warren, 868 F.2d at 1447. In analyzing the fourth prong of SSR 83-27c, we consider whether
the consent judgment adjudicating paternity in this case is consistent with Louisiana
law regarding paternity actions initiated by a child.
As noted, T~, on behalf of the Child, filed a petition to establish the NH’s paternity
as to the Child. See La. Civ. Code Ann. art. 197. In Louisiana, if a child initiates a court action to
establish paternity when the alleged father is alive, the child must prove paternity
by a preponderance of evidence. See La. Civ. Code Ann. art. 197; State v.
Shaddinger, 702 So.2d 965, 970 (La. Ct. App. 1997). To meet the preponderance of evidence standard
of proof, the evidence must show that paternity is more probable than not. See
Lasha v. Olin Corp., 625 So.2d 1002, 1005 (La. 1993); Shaddinger, 702 So.2d at 970. A child may present all relevant evidence to prove paternity,
such as genetic testing, an informal acknowledgment of paternity, cohabitation of
the mother and father at the time of conception, and any other relevant testimony
and documents. See La. Civ. Code Ann. art. 179, Revision Comment; art. 197, Revision Comment (c). Here,
as noted above, the evidence as to paternity included DNA test results.
Although alone insufficient to prove paternity, genetic scientific testing provides
persuasive and objective evidence that can help establish paternity by a preponderance
of evidence. See
LeBlanc v. LeBlanc, 497 So.2d 1361, 1364 (La. 1986); State v. Gibson, 768 So.2d 714, 719 (La. Ct. App. 2000). “A certified report of blood or tissue sampling
which indicates by a ninety-nine and nine-tenths percentage point threshold probability
that the alleged father is the father of the child creates a rebuttable presumption
of paternity.” La. Rev. Stat. Ann. § 9:397.3(B)(2)(b). A certified report consists
of the written report of the test results, certified by a sworn affidavit of the expert
who supervised the tests, which states in substance: (a) that the affiant is qualified
as an examiner of blood and tissue samples for inherited characteristics and gives
the affiant’s name, address, telephone number, qualifications, education and experience;
(b) how the tested individuals were identified when the samples were obtained; (c)
how, when, and where the samples were obtained and by whom; (d) the chain of custody
of the samples from the time obtained until the tests were completed; (e) the results
of the test and the probability of paternity as calculated by an expert based on the
test results; and (f) the procedures performed to obtain the results. La. Stat. Ann.
§ 9:397.3(A). If there is no timely challenge to the testing procedure or if the court
finds there has been no procedural error in the testing procedure, the certified report
must be admitted at trial as prima facie proof of its contents, provided that the
party against whom the report is sought to be used has the opportunity to summon and
cross-examine the report makers as witnesses. La. Stat. Ann. § 9:397.3(B)(2)(a).
Here, pursuant to the Child’s request in the petition for DNA testing, in an order,
the Court appointed “DNA Diagnostics Center, an expert qualified as an examiner of
blood and tissue samples” to conduct blood and tissue testing and to prepare a written
report to be filed with the court. In reaching the consent judgment, the Louisiana
court considered the certified DNA test report, signed and verified by the DDC’s laboratory
director Joy Johnson, Ph.D., on June XX, 2007. The report shows the DDC’s address
and phone number. This report was not contested by either the alleged father (the
NH) or the acknowledged/legal father (T~), identified the Child as the Child and the
alleged father as the NH, stated that their samples were collected on May XX, 2017,
and noted a 99.999995% probability of the NH’s paternity. The report provided that
the probability of paternity was calculated by comparing to an untested, unrelated,
random individual of the Black population (assumes prior probability equals 0.50),
and contained a verification from the laboratory director made before a notary public
that the interpretation of the results was correct. Although the single-page DNA test
report does not appear to meet some statutory requirements (such as explaining how
the DNA samples were obtained and identified and the chain of custody of the samples),
it still served as persuasive evidence to meet the preponderance of the evidence standard.
The Court’s consent judgment specifically states that the DNA test report was part
of the evidence supporting the NH’s paternity. Notably, the report was prepared by
an accredited laboratory of the Court’s choosing, the Court found no procedural error
in the testing procedure, and there was no challenge from the parties to the testing
procedure. See State in Interest of Robinson v.
Sims, 721 So. 2d 90, 92 (La. Ct. App. 1998) (“Where, as here, the scientific testing procedure
is not timely challenged, the report shall be admitted into evidence and will constitute
prima facie proof as to its contents.”). Therefore, it appears that the Court properly
relied on the DNA test report in issuing the consent judgment establishing the NH’s
paternity as to the Child.[20]
In addition to the DNA test report, the Court considered other evidence in reaching
its judgment. The Court stated in the consent judgment that it considered “the entire
record, the DNA test report of DNA Diagnostics Center concerning the probability of
paternity. . . and the stipulations and consent of the parties” to the paternity action.
The Child’s petition stated in substance that: the Child was born on February XX,
2007; that his mother C~ died on April XX, 2017; that while T~ was listed as the “father”
on two of the Child’s birth certificates, the NH was the Child’s biological child
per informal DNA testing dated November XX, 2016; that the NH had acknowledged the
Child as his own through the name change petition, which had been filed jointly by
the Child’s mother, T~, and the NH with the same Court;[21] that on February XX, 2017, the Court ordered the Child’s name changed to the NH’s
last name; and that a new Social Security card was issued for the Child under the
NH’s last name. The petition also stated that the NH did not oppose the petition and
would voluntarily submit to the Court’s appointed expert for DNA testing. The petition
was accompanied by T~’s sworn verification dated May XX, 2018, affirming that the
facts and allegations in the petition were true and correct to the best of his knowledge.
Thus, it appears that the consent judgment was based on a preponderance of the evidence
establishing that the NH’s paternity of the Child was more probable than not and was
therefore consistent with Louisiana law on adjudication of paternity. See Simpson v.
Stevenson, 852 So.2d 1093, 1096-97 (La. Ct. App. 2003) (testimony of the child’s mother accompanied
by DNA test results showing a 99.9995% probability of paternity proved paternity by
a preponderance of the evidence); In re Thomas v. Thomas, 768 So.2d 81, 84 (La. Ct. App. 2000) (finding that the objective evidence of DNA
test results which showed a 99.99% probability of paternity, coupled with testimony
and the child’s birth certificate, proved paternity by a preponderance of the evidence);
State in Interest of Robinson v. Sims, 721 So.2d 90, 93-94 (La. Ct. App. 1998) (DNA test results showing a 99.98% probability
of paternity coupled with the alleged father’s admission that he had sexual intercourse
with the child’s mother during the time of conception established his paternity by
a preponderance of the evidence); State v. Frisard, 694 So.2d 1032, 1034-36 (La. Ct. App. 1997) (testimony of the child’s mother coupled
with blood testing showing a 99.9994% probability of paternity proved the child’s
paternity by a preponderance of the evidence); State v. Shaddinger, 702 So.2d 965, 970-71 (La. Ct. App. 1997) (sworn statements of the mother and the
alleged father’s failure to submit to blood testing was sufficient to prove paternity
beyond a preponderance of the evidence). As such, the agency can reasonably conclude
that the consent judgment met the fourth Gray criteria as being consistent with Louisiana law.
e. Summary of Gray Factors: Although the Consent Judgment Does Not
Bind the Agency, the Consent Judgment is Entitled to Deference in Establishing the
NH’s Paternity,
and thus, Filiation with the Child under Louisiana Law for Inheritance Purposes
In summary, the consent judgment does not appear to bind the agency because it fails
to meet the second criteria of Gray of being genuinely contested. See
Gray, 474 F.2d at 1373; SSR 83-37c, 1983 WL 31272 at *3. However, the agency should only
disregard a state court’s decision when the agency is convinced that the decision
is in conflict with what the state supreme court has held or would hold were it presented
with the issue. See Garcia, 883 F.2d at 20. As discussed above, the consent judgment declaring the NH as the
Child’s biological father appears to be valid under Louisiana law. Thus, notwithstanding
the fact that the consent judgment does not meet the second Gray criteria, we believe there is legal support for the agency to defer to the consent
judgment to find that the Child has established paternity, and thus, filiation with
the NH such that the Child has the right to inherit from the NH under Louisiana intestate
succession law. As stated, if the child establishes paternity, all of the civil effects
of filiation apply to both the child and the father, including the right to inherit
intestate. See La. Civ. Code Ann. art. 197, Revision Comment (a). Thus, we believe that there is
legal support for the agency to conclude that the Child is the NH’s natural child
under the Act upon application of Louisiana intestate succession law.
4. The Effective Date of the Parent-Child Relationship
You also asked the effective date of the NH’s parent-child relationship with the Child
as it is relevant to determining the extent of any retroactive benefits. Specifically,
you asked whether the Louisiana state court consent judgment operates retroactively
or prospectively to establish paternity, and if any documents in file establish the
relationship prior to the consent judgment . We believe there is legal support for
the agency to conclude that the effective date of the parent-child relationship is
the Child’s date of birth, February XX, 2007.[22]
Although the POMS distinguishes among legitimate children, illegitimate children,
and legitimated children, and provides for different effective dates of the parent-child
relationship based upon this distinction, Louisiana intestacy law, as it currently
stands, does not make such distinctions. See POMS GN 00306.050 (“Under current State laws, a child legitimated after birth is considered to be legitimate
from birth.”), GN 00306.055 (as to illegitimate children, an “act/event conferring inheritance rights generally
has effect only from the date of such act/event.”). Louisiana intestacy law does not
distinguish among legitimate and illegitimate children, does not provide a mechanism
for legitimating an illegitimate child, and provides for equal inheritance rights
for children without regard to legitimacy.[23] Thus, we believe that the agency may reasonably conclude that all children are given
the same legal status under Louisiana inheritance law. Therefore, under Louisiana
law, once the parent-child relationship is established, it is effective as of the
date of the child’s birth regardless of his parents’ marital status or of the method
or type of evidence used to prove the relationship.
Accordingly, in determining the Child’s entitlement to child’s insurance benefits
on the NH’s record, we believe the agency could reasonably conclude that the effective
date of the parent-child relationship between the NH and the Child is the date of
the Child’s birth – February XX, 2007.
C. The Child’s Application for Child’s Insurance Benefits as J~’s
Stepchild
You also asked whether the Child is J~’s stepchild. Under the Act, a child may be
eligible for child’s insurance benefits as an insured individual’s stepchild if after
the child’s birth, his natural parent married the insured. See 42 U.S.C. § 416(e)(2); 20 C.F.R. § 404.357. Where, as here, the insured number holder
is alive, the child must also have been the insured’s stepchild for at least one year
immediately preceding the day on which the application for child’s insurance benefits
is filed. See 42 U.S.C. § 416(e)(2); 20 C.F.R. § 404.357; POMS GN 00306.230(A)(2) (the marriage between the child’s parent and the alleged stepparent NH must
have taken place at least one year before the child’s application is filed; the one-year
duration of relationship requirement may be met based on an application filed before
the first anniversary of the NH’s marriage to the child’s parent, as long as the anniversary
occurs prior to adjudication).
Here, the record indicates that:
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•
the Child was born on February XX, 2007,
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•
the Child’s natural parent, the NH, married J~ nine months later in December 2007,
and
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•
the NH filed the Child’s claim for child insurance benefits on J~’s record as her
stepchild on September XX, 2017, with a protective filing date of May XX, 2017.
To establish the stepchild relationship, the agency is to obtain evidence as to the
child’s relationship to the parent (which we have analyzed above), and as to the marriage
of the parent to the alleged stepparent NH. POMS GN 00306.230(B). We were not provided with any evidence of the NH’s marriage to J~. Assuming the
agency has proof of a valid marriage as to the NH and J~, we believe that the agency
could reasonably conclude, based on this information, that the Child was J~’s stepchild
for at least one year immediately preceding the date on which the application for
child’s insurance benefits on J~’s record was filed. Thus, in determining the Child’s
entitlement to child’s insurance benefits on J~’s record, there is legal support for
the agency to find the Child to be J~’s stepchild under the Act.
CONCLUSION
For purposes of determining the Child’s entitlement to child’s insurance benefits
on the NH’s record, we believe that there is legal support for the agency to find
that the Child is the NH’s natural child under the Act based on application of Louisiana
intestate succession law and the Louisiana state court’s consent judgment declaring
him to be the Child’s father. We believe that the effective date of their parent-child
relationship is the date of the Child’s birth, February XX, 2007. For purposes of
determining the Child’s entitlement to child’s insurance benefits on J~’s record,
we also believe that the agency could reasonably conclude that the Child is J~’s stepchild
under the Act, assuming the agency has proof of a valid marriage between the NH and
J~.