Is the following evidence provided by Cassidy’s mother, Jessica enough to establish Erik (NH), who died on November 27, 2011, as the biological father of Cassidy? Jessica submitted: (1) a statement that she and NH lived together from May 4, 2011 through the beginning of August 2011, that Cassidy was conceived in June 2011, and that NH knew she was pregnant, but did not contribute regularly to her support; (2) a statement from NH’s father Charles stating that NH told him that Jessica was pregnant, and that NH was pretty much convinced the child was his, and that NH’s father Charles had no doubt NH is Cassidy’s father; and (3) genetic avuncular DNA testing comparing Cassidy’s DNA and NH’s brother, Sean, indicating a 98.858% probability that Sean was Cassidy’s uncle and that Sean was 86.56 times more likely to be related as an uncle than to be unrelated. The avuncular DNA test results and other evidence provided by Jessica will likely satisfy the preponderance of the evidence standard under Indiana law to establish Cassidy is NH’s child, and thus that Cassidy would be entitled to inherit NH’s personal property. As such, Cassidy is the NH’s child for purposes of eligibility for child’s benefits under Section 216(h)(2) of the Social Security Act.

ISSUE PRESENTED AND SHORT ANSWER

You asked whether there is sufficient evidence to establish that Erik (NH) is the biological father of Cassidy, giving Cassidy inheritance rights under Indiana intestacy laws, which would establish a parental relationship under Section 216(h)(2) of the Social Security Act.

As discussed below, we believe Indiana courts will likely find that the evidence submitted by claimant’s mother Jessica, including avuncular DNA test results, satisfies the preponderance of the evidence standard to establish paternity under Indiana law. Accordingly, you may conclude that Cassidy is the NH’s child for purposes of eligibility for child’s benefits.

BACKGROUND

The NH was domiciled in Indiana when he died on November 27, 2011. The minor claimant Cassidy was born in Michigan on March 8, 2012 to Jessica. According to the record, Cassidy’s mother and NH were never married and the name of Cassidy’s father is blank on her birth certificate.

Jessica applied for child insurance benefits on behalf of Cassidy based upon NH’s record in April 2012. In support of Cassidy’s claim, Jessica provided the following evidence: (1) a statement that she and NH lived together from May 4, 2011 through the beginning of August 2011, that Cassidy was conceived in June 2011, and that NH knew she was pregnant, but did not contribute regularly to her support; (2) a statement from NH’s father Charles stating that NH told him that Jessica was pregnant, that NH was pretty much convinced the child was his, and that NH’s father Charles had no doubt NH is Cassidy’s father; and (3) genetic DNA testing comparing Cassidy’s DNA and NH’s brother Sean indicating a 98.858% probability that Sean was Cassidy’s uncle and that Sean was 86.56 times more likely to be related as an uncle than to be unrelated.

DISCUSSION

The Social Security Act provides for the payment of benefits to the “child” of an insured wage earner who is retired, disabled, or deceased. 42 U.S.C. § 402(d). The Act provides that a child can obtain benefits on account of the wage earner if the child can take a child’s share of the wage earner’s intestate personal property. 42 U.S.C. § 416(h)(2)(A); see also 20 C.F.R. 404.355(a)(1); POMS GN 00306.001(C)(1)(a). If the insured person is deceased, the Commissioner of Social Security applies the intestacy laws for the state where the deceased insured person was domiciled at the time of his death. 20 C.F.R. § 404.355(b)(1); POMS GN 00306.001(C)(2)(a). The state of domicile may also “apply the law of the place where an event (e.g. adoption) occurred in determining” the child’s relationship to the wage earner. POMS GN 00306.005. In this case, because NH was domiciled and owned property in Indiana at the time of his death, Indiana intestacy laws apply to determine whether Cassidy could inherit a share of NH’s personal property as his child. We also considered whether Indiana or Michigan parentage laws would apply to determine Cassidy’s inheritance rights since Cassidy was born in Michigan. See POMS GN 00306.005. Indiana courts have held that the law of the state where real or personal property is located applies in determining intestate succession. See In re Paternity of D~, 900 N.E.2d 454, 460-61 (Ind. App. 2009). The record does not indicate that NH owned any real or personal property in Michigan or that Michigan courts are determining the paternity issue, thus the law of Indiana applies. See Id. Therefore, we believe Indiana intestacy laws apply in determining whether Cassidy’s mother provided sufficient evidence of paternity.

Pursuant to Indiana intestacy law, a child born out of wedlock after the father’s death can posthumously establish the right to inherit only if the paternity cause of action is filed before or within eleven months of the father’s death. Ind. Code Ann. § 29-1-2-7(b)(3); POMS GN 00306.485. Although Indiana law requires a paternity action, SSA will not require the claimant to bring the parentage action or establish paternity prior to the death of the alleged insured father’s death. 20 C.F.R. 404.355(b)(2). Rather, SSA will determine a paternity issue by using the standard of proof that the state court would use as a basis for a paternity determination. Id.

Indiana law provides several provisions to establish presumptions of paternity, including the following relevant to our analysis: a genetic test indicating that the man is the child’s biological father with at least a 99% probability. Ind. Code § 31-14-7-1; POMS GN 00306.485. While Indiana intestacy laws create a presumption of paternity if valid DNA tests establish a 99% probability of paternity, Indiana statutory law does not contemplate a presumption of paternity when the DNA tests are based on the siblings of the alleged father. Ind. Code Ann. 31-14-7-1. In this case, the DNA tests indicate that there is a 98.858% probability that the alleged uncle Sean is related to Cassidy and 86.56 times more likely to be related to Cassidy as an uncle than to be unrelated. However, because the DNA results are based on NH’s brother, the statutory presumption of paternity does not apply.

Notwithstanding the absence of statutory presumptions regarding paternity, Indiana law provides that a finding of paternity can be established by preponderance of the evidence. See Collins v. Wise, 296 N.E.2d 887, 889-91 (Ind. App. 1973); Humbert v. Smith, 655 N.E.2d 602, 605 (Ind. App. 1995); see also POMS GN 00306.485. Indeed, under the preponderance of the evidence standard, Indiana courts have determined that the mother’s testimony, if deemed credible and corroborated, can establish paternity, notwithstanding evidence of intercourse with another man. Id. The courts may also consider other evidence, including DNA genetic test results, relevant to making a paternity determination. See First Student, Inc. v. Estate of Meese, 849 N.E2d 1156, 1164 (Ind. App. 2006).

In this case, Indiana courts may find that Cassidy’s mother’s statements that NH is Cassidy’s biological father and that NH knew she was pregnant, if credible, are relevant to establish that NH is Cassidy’s father under the preponderance of the evidence standard. In addition to Cassidy’s mother’s statements, Indiana courts may find that the other evidence, including (1) DNA genetic test results indicating a 98.858% probability that NH’s brother Sean is related to Cassidy; and (2) NH’s father’s statements, corroborate a finding that NH is Cassidy’s father. Therefore, you may conclude that Indiana courts would find that there is sufficient evidence to establish that NH is Cassidy’s biological father, giving Cassidy inheritance rights as a child under Indiana intestacy laws.

CONCLUSION

For the foregoing reasons, we conclude that the DNA test results and other evidence provided by Cassidy’s mother will likely satisfy the preponderance of the evidence standard to establish Cassidy is NH’s child, and thus that Cassidy would be entitled to inherit NH’s personal property. As such, you could reasonably find that Cassidy is the NH’s child for purposes of eligibility for child’s benefits.

To determine if there is written acknowledgment under section 216(h)(3) of the Act, this opinion provides the written consent/court order requirements of each State in Region V for entering a father's name on the BC of a nonmarital child, or showing the child's surname the same as the father's.

You have asked us to advise you of the current law for each state in Region V regarding the appearance of the father's name on the birth certificate of a nonmarital child. Specifically, you have asked us to determine whether state law requires either the father's written consent or a court determination of paternity before the father's name can be entered on the birth certificate of a child born out of wedlock. You have also asked us to determine whether state law requires the father's written consent or a court determination of paternity before the birth certificate can show the child's surname to be that of the father's. Our findings are as follows:

Indiana has no specific statutory provision concerning the designation of the father's name on the birth certificate of a nonmarital child. Thus, it is unclear whether the father's consent is required before the father's name can be entered on the birth certificate of a nonmarital child. Indiana law does provide that immediately before or after the birth of a child who is born out of wedlock, the child's mother and a man who reasonably appears to be the child's biological father must be given an opportunity to execute an affidavit acknowledging paternity of the child. IND. CODE. ANN. § 16-37-2-2.1(b) (West 2000). The paternity affidavit must be filed with the local health officer, IND. CODE. ANN. § 16-37-2-2(a)(1)(B), who then corrects the child's birth certificate by adding the father's name. IND. CODE. ANN. § 16-37-2-14. However, because these provisions do not specifically provide that execution of a paternity affidavit is required before the father's name can be entered on the birth certificate of a nonmarital child, we would advise against presuming that the father's written consent is mandatory, or that if the putative father's name appears on the birth certificate, he necessarily gave his consent.

Indiana also has no specific statutory provision on whether a court determination of paternity is required before the name of the father can be entered on the birth certificate of a nonmarital child. The law only states that “upon a finding that a man is a child's biological father, the clerk of the court shall prepare a record of the paternity determination.” IND. CODE. ANN. § 31-14-9-1(1). The record must include the facts necessary to locate and identify the birth certificate of the child whose paternity has been established, a notice from the court indicating that the child's paternity has been established in a court proceeding, and the name and address of the child's father. IND. CODE. ANN. § 31-14-9-1 (2). However, it does not specifically provide that the birth certificate of the child must be changed to reflect the judgment of the court. Absent such explicit language, you should not assume that the presence or absence of the putative father's name on the birth certificate means that a court determination was or was not made.

As for surnames, under Indiana law, a non-marital child takes the surname of his or her mother. IND. CODE. ANN. § 16-37-2-13; In the Paternity of M.O.B., 627 N.E.2d 1317, 1318 (Ind. App. 1994); D.R.S. v. R.S.H., 412 N.E.2d 1257, 1261 (Ind. App. 1980). However, the surname of a child born out of wedlock can also be recorded as directed in a paternity affidavit. IND. CODE. ANN. § 16-37-2-13. Consequently, if the surname of the nonmarital child is the same as that of the alleged father, it would appear that the father provided his consent by executing the paternity affidavit. Moreover, while Indiana law does not require the court to change the surname of the child to that of the adjudged father pursuant to a paternity determination, a court can order that the surname be changed to that of the father if it is in the best interests of the child. In the Paternity of M.O.B., 627 N.E.2d at 1318 (“the statute does not ensure that a non-marital child will retain the surname of its mother where the retention is contested by the father” if such change is in the child's best interests). Therefore, if the birth certificate shows the child's surname to be the same as the putative father's, one can alternatively presume that a court entered an order directing such change.

CONCLUSION

These are the current requirements for the appearance of the father's name and the child's surname on the birth certificate of a nonmarital child in each of the six states in our region. As requested, we have appended a chart detailing the above information and effective dates for your use.

Thomas W. Crawely

Regional Chief Counsel

By: _______________________

Kathryn A. B~

Assistant Regional Counsel

 

Indiana