This is with reference to your January 20, 1984 request for a legal opinion. You asked
whether the Social Security Administration (SSA) may reach the question of whether
under Michigan law a child born out of wedlock is the intestate heir of the deceased
wage earner (DWE). The child already appears to be the intestate heir of his mother's
still living former husband under the "birth certificate" provision of the governing
statute.
Your question poses the issue whether the first "legitimation" is conclusive, or whether
it may be rebutted. In our opinion, although a "birth certificate" legitimation may
be rebuttable in this case, the present evidence precludes a determination that the
claimant is the intestate heir of the DWE.
RELEVANT FACTS
1. The Immediate Claim
Claimant Andre was born in August. The available undisputed evidence indicates that
prior to that. time his mother, Amanda, then Amanda, and the DWE, Detreich, had a
sustained relationship. Although their cohabitation might have ended before claimant's
conception, TIll and Detreich continued to see each other regularly until she met
J. It is also undisputed that Amanda did not meet J, whom she married in 1972, until
after Andre's birth. Amanda states that prior to Andre's birth, Detreich was the only
man she was seeing.
In 1974, a birth certificate for Andre was issued which named J. as the father, and
gave Andre the surname of J. Both the mother and J. explain this step as prompted
by the fact Andre was nearing school age, and their desire to avoid embarrassment
to him and provide stability. Both Amanda and J. state that Andre was never legally
adopted by J.
In 1983, J. sued for divorce. His July, 1983 Amended Complaint named only one child
of the marriage, J., born in 1973, of whom he sought custody. Amanda had countersued
for divorce in June, 1983, and named both Andre and J. as issue of her marriage to
J. June, 1983 interim decree awarded custody of both children to Amanda and ordered
J. to pay child support for both Andre and J.
In November, 1983, Amanda told the district office that J. was paying support for
J. only, that Andre was "taken off the later divorce complaint" with her agreement,
that J. did not wish to support someone else's child, and that she would to along
with his wish. J. has made similar statements.
Detreich died in June, 1983. In September, 1983, Amanda filed Andre's claim for benefits
based on Detreich. She initially reported as Detreich's only acknowledgement of Andre
statements that he had made to her family prior to Andre's birth. She gave negative
responses to the questions whether Detreich had performed as a father to Andre or
whether Andre referred to Detreich as "daddy," etc., or that Detreich referred to
Andre as "son," etc. She similarly stated that the two had not visited, and that Detreich
had not taken the child to school or on trips or family visits. She further answered
that Andre did not know or act toward Derreich as his father. She also volunteered
the information that Andre learned only in April, 1983 that J. was not his father,
and that he did not know Detreich was his father.
Subsequently, Detreich 's mother and a sister gave statements that he was Andre's
father. Both also stated that he orally acknowledged the child, took the child on
visits, and provided some gifts and minor support. The sister also stated that Andre
referred to Derreich as his father. A statement by a couple who were neighbors of
Amanda until her 1972 marriage to J is similar in terms of Detreich's actions but
appears limited to a time when Andre was a baby.
After the addition of these statements, Amanda advised the district office that her
earlier statements were not correct. Explaining that she was very ill at the time
of her September statements, Amanda maintained that Detreich widely admitted that
Andre was her son, including to his family, that he regularly took Andre out on weekends,
including to family gatherings, and called Andre "son." She further stated that to
her Andre referred to Detreich as his father. [11]
Andre also was interviewed at this later date. He stated that he had known Detreich
B~ as his father since he was a baby. He reported that he saw his father frequently,
called him "dad" .or "daddy" and heard his father refer to him as "son." He claimed
that the two of them had a very close relationship.
The district office worker reported that mother and son on this occasion were "very
sincere," and that the reason given by Amanda for her earlier "incorrect" answers
was believed.
2. Other Information
In the statement offered by Detreich's sister in support of his paternity and acknowledgment
of Andre, she answered that Detreich had another child, Detreisha. The claims folder
reflects that a benefits claim was filed after Detreich's death on behalf of Detreisha,
(born in late 1974), who was awarded benefits as an out of wedlock intestate heir
of Detreich under Michigan law. Detreisha's mother is not Amanda .
Among the evidence supporting Detreisha's claim are statements from Detreich's mother
and the sister, who gave similar statements in support of Andre's claim, and statements
from two other sisters. All four statements respond negatively to the question of
whether Detriech had any other children. All were made prior to the date Andre's claim
was filed.
The claim filed by Detreisha's mother, Marie, states that
Detreich. 8m does have another child in Spain. He is 17 or 18 years old. His birthday
is in July .... Andre is the child's name but his whereabouts are unknown.
The claims folder also contains an overpayment recovery questionnaire signed by Detreich
in 1980. Where asked to list those he supports either fully or in part, he listed
Detreisha. The signature on this form and elsewhere in the file appears to be the
same as on Other evidence that supported Detreisha's claim: an Easter card to Detreisha
and a written August, 1979 notarized and witnessed statement of Detreisha's birth
signed by Detreich as "father."
A final item of information of some relevance appears in J. 's statement in support
of Andre's claim. He reports that when he married Amanda in 1972, she had another
child in addition to Andre, a daughter named Tanya.
ANALYSIS
1. Under Michigan Law, Claimant Is Not the Intestate Heir of DWE
There is no evidence on which to base benefits for Andre under the "federal tests"
of §216(h){3)(C} of the Social Security Act. Andre's claim must therefore rest on
the state law test of §216{h}{2){A), whether he would be considered the child of the
DWE under such law as would be applied by the courts of Michigan in determining the
devolution of intestate personal property.
It is undisputed that Andre was not born or conceived during a marriage. His claim
is therefore governed by M.C.L.A. 700.111(4), as set out in POMS GN T00306.135. For purposes of intestate succession under Michigan law, a man is considered to
be the father of a child born out of wedlock if any of three circumstances exist.
The first two are a written acknowledgment by the man recorded in probate court or
a successful written request by the man to correct the child's birth certificate.
Neither applies to the DWE. The third circumstance is that
The man and the child have borne a mutually acknowledged relationship of parent and
child which began before the child became age 18 and continued until terminated by
the death of either.
This provision has been interpreted by Michigan appellate courts only once to date.
Matter of Estate of V~, 327 N.W. 2d 340 (Mich. App. 1982). The facts of that case do not bear on the present
claim. The court's ruling, however, makes clear that the requirement of a "mutually
acknowledged relationship" between the father and child is to be taken literally and
determined by reference to the actions of those individuals only. [12] Id. at 342
In our opinion, the weight of the evidence does not permit a determination that Andre
and Derreich had a mutually acknowledged relationship as father and son. Amanda 's
initial statements when she filed the claim in September 1983 are completely inconsistent
with concluding that such a relationship existed.
Amanda's later correction of her statements is not, in our opinion, credible. While
we defer to the DO worker's superior opportunity to judge demeanor, we think the sincerity
of Amanda's explanation is beside the point. The fact that she might have been ill
the day she made her initial statement does little to explain why she gave explicit
information that was so "incorrect."
We also recognize that the claim of mutual acknowledgment is supported by the DWE's
mother and sister. Again, the credibility and weight of the statements are diminished
by other evidence. Prior to Andre's claim, both relatives in supporting the benefits
claim for the DWE's child by another woman, Detriesha, answered that Detreich had
no other children. Two other sisters gave the same answer in their statements in support
of Detreisha's claim. [13]
The sequence of these statements strongly suggests that Amanda later learned of the
unfavorable impact on Andre's claim of her initial statements. In this light, the
weight of Andre's own later statement in support of his claim is diminished as well.
Several other factors also weigh in the balance against the determination that the
DWE and Andre had a mutually acknowledged relationship. There is the contrast between
the kind of documentary evidence Detreisha's mother was able to produce in support
of her claim and the absence of same in Andre's claim. There is the discrepancy between
the nearly identical descriptions of support that the DWE's relatives report for both
children and the fact that the DWE listed Detreisha only as a dependent on the overpayment
recovery questionnaire. Amanda's credibility is also hurt by the information from
J. that she had another child, Tanya, when he married her. Amanda not only fails to
mention this child, but her existence appears inconsistent with her statement that
until her marriage, Detreich was the only man with whom she was involved. [14]
None of these other factors alone is conclusive or particularly damaging. [15] They do, however, reinforce our opinion based on the conflicts among the primary
statements in support of Andre's and Detreisha's claims. The weight of the evidence
does not support the conclusion that there was a mutually acknowledged relationship
between claimant and the DWE.
2. Correction Of Claimant's Birth Certificate To Show Still-living Mother's Former
Husband As Father Does Not Bar A Determination That Claimant Is An Intestate Heir
Of The DWE
As explained above, we believe the evidence does not support the claim for child's
benefits in this case. Therefore, the outcome of the claim is the same regardless
of the effect of the birth certificate listing J. as claimant's father. For future
reference, however, we reach the question asked. In our opinion, the birth certificate
here does not preclude applying the mutually acknowledged relationship provision to
the relationship between claimant and the DWE because the father named in the certificate
is still living and disavows paternity. This opinion, however, is limited to these
facts and does not address other circumstances.
a)The 1974 Certificate Invokes The Legitimation Statute
You are correct in stating that under M.C.L.A 700.111(4)(b) the effect of the 1974
"correction" of Andre's birth certificate to show J. as his father was to make him
legitimate under that later law. M.C.L.A. 700.111(5). That step also made him the
contingent intestate heir of J. M.C.L.A. 700.111(4). These effects, however, require
a written request by Amanda and J. for the substituted birth certificate. M.C.L.A.
700.111(4)(b).
The claims file does not indicate the basis on which the J obtained the certificate.
The law in effect in 1974 when the certificate was obtained provided that a new birth
certificate for an illegitimate child could be issued based on evidence of alleged
intermarriage of the child's natural parents, such as affidavits, certified copies
of records, and so forth, or on similar evidence that facts in the original certificate
are not correct. M.C.L.A. 326.17.
In your request for a legal opinion, however, you advised us that SSA policy for this
period is to presume written acknowledgment where a man's name has been added to the
birth record of an illegitimate child, absent evidence to the contrary, citing Regional
Transmittal No. 71, 01/78, §R2420. You have advised further that at that time the
Michigan Bureau of Vital Statistics required either an acknowledgement of paternity
filed with the probate court or evidence of intermarriage to add a man's name to a
birth certificate. Id.
We have previously advised you that the Michigan legislature intended the legitimation
statute to generously expand the class of illegitimate children who could inherit
from their fathers. See Jeffrey , supra. When M.C.L.A. §700.111(4)(b) was enacted, another statute, M.C.L.A. 333.2872, had
replaced §326.17. It requires both a written request and a probate court acknowledgement
of paternity to obtain a birth certificate for a child born out of wedlock corrected
as to paternity. To merely change the child's surname requires a written request only.
M.C.L.A. 333.2872. M.C.L.A. 700.111(4)(a) provides for legitimation by a probate court
acknowledgement alone, if properly executed. If M.C.L.A. 700.111(4)(b) could be satisfied
only by a birth certificate issued under the statute in effect when §700.111(4)(b)
was enacted, M.C.L.A. 333.2872, the "acknowledgement" and "birth certificate" provisions
of the legitimation statute would overlap with each other. The step that is sufficient
to legitimate a child under §700.111(4)(a) — a probate court acknowledgement — is,
under §333.2827, only part of what is required to obtain a substituted birth certificate
that legitimates under §700'.111(4)(b). §700.111(4)(b) would appear redundant. A non-duplicative
reading is presumed and preferred.
We therefore conclude that the Michigan legislature intended to reach with M.C.L.A.
700.111(4)(b) all children with paternity-corrected birth certificates that were valid
when issued. This legislative intent and the requirements of former M.C.L.A. 326.17
are not in conflict with giving effect to SSA's policy in Regional Transmittal No.
71 to assume that J. and Amanda submitted some document sufficient to be considered
a "written request" under M.C.L.A. 700.111(4)(b). Therefore, based on that assumption
the 1974 certificate was effective to make claimant the contingent intestate heir
of J. as of the DWE's death.
b) The 1974 Certificate Is Not Irrebutable In This Case
We have concluded that the 1974 birth certificate operated to legitimate claimant
as the child of J. under the later statute . We next consider the pivotal question
under §216(h)(2)(A): whether a state court asked to declare Andre to be the intestate
heir of the DWE under the "mutually acknowledged relationship" provision of M.C.L.A.
700.111(4)(c) could do so, given the effect of the birth certificate under M.C.L.A.
700.111(4)(b), (5).
In our opinion, a court in these circumstances could declare Andre the DWE's intestate
heir because the "father" named in the certificate is still living and he disavows
paternity. We reach this conclusion based on three features of established Michigan
law, unless and until there is a Michigan Supreme Court decision to the contrary.
First, Michigan law clearly provides that the legitimate status of a child born or
conceived in wedlock, and the husband's presumed status as natural father, may be
rebutted. M.C.L.A. 700.111(2)-(3); Serafin v. Serafin, 258 N.W.2d 461 (Mich. S. Ct. 1977) [divorce proceeding]. The statute also makes
clear that, for purposes of legitimation and intestate inheritance, only the presumed
natural father may disprove the presumption, and that this exclusive right terminates
upon the death of the presumed parent.
We can see no reason for different treatment with regard to the status conferred on
the legitimated child by the acts of a "father" that meet §700.111(4)(a)-(c). Principles
of "Equal Protection" provide a reason to treat the two categories of cases consistently.
Moreover, since the statute is silent as to this point with regard to children born
or conceived out of wedlock, we expect a court would look to the provisions for children
born or conceived in wedlock for guidance.
Second, the possibility of spurious claims of paternity is judicially recognized.
See In re B~'s Estate, 323 N.W. 2d 671, 678 (Mich. App. 1982), citing Lalli v. Lalli, 439 U.S. 259, 99 S. Ct. 518 (1978). If the effect of M.C.L.A. 700.111(4) were irrebuttable,
the law would permit no remedy for fraud or mistake that is discovered by a "father"
who had legitimated a child on which he might wish to act.
Finally, under Michigan law an official record such as a birth certificate corrected
to show paternity is prima facie evidence of the facts stated therein. M.C.L.A. 333.2886.
[16] Prima facie evidence is, by definition, that which is conclusive unless and until
rebutted. [17] Accord, People v. Nichols, 341 Mich. 311 (1954), [mother's naming of third-person on birth certificate as father
does not estop paternity claim against another].
We emphasize that this analysis is 'confined to the situation present here: the "father"
whose legitimation is to be rebutted is still living, and he joins in the proof disavowing
his paternity. The statute, §700.111(3), implies a different result where the "father"
whose paternity is to be disproved is no longer living, or, possibly, is living, but
does not disavow paternity. The outcome in those other circumstances is unclear under
Michigan law, with no guiding court decisions. Should a claim require rebutting the
paternity otherwise established by M.C.L.A. 700.111(4) where the "father" is deceased
or, if living, not involved in the rebuttal, please resubmit the question. [18]
Thus, this particular claimant's status as contingent intestate heir and legitimated
son of J. by operation of M.C.L.A. 700.111(4)(b) is rebuttable. If rebutted, claimant's
status as heir of another may be reached. The standard for rebuttal is clear and convincing
evidence, see Serafin v. Serafin, supra, which is arguably met in this case. However, as noted previously, we do not think
that a court would find the test of M.C.L.A. 700.111(4)(c) met on the present evidence
as to Detreich by either a preponderance of the evidence, let alone clear and convincing
evidence, which arguably is the standard. See Raleigh v. Watkins, 293 N.W.2d 789, 791 (Mich. App. 1980) [in child custody proceeding, man claiming
paternity must both rebut presumption of paternity and prove his own by clear and
convincing evidence]. [19]