This responds to your request for assistance in determining whether Joshua B. J~ is
entitled to benefits as the child of Robert E. F~. We conclude, for the reasons discussed
below, that he is not entitled to benefits.
The relevant facts may be briefly summarized: Joshua B. J~ was born to Candace J~
on February 1, 1978 in Saginaw, Michigan. No father's name was listed on the birth
certificate. Candace J~ was never married to the wage earner, Robert E. F~. The wage
earner died on May 11, 1981. There is no evidence that would establish the claimant's
right to inherit from the wage earner under Michigan law.
The sole question presented is whether the claimant is entitled to benefits pursuant
to 42 U.S.C. 416(h)(3)(c)(i)(III), based on a finding that the wage earner "had been
ordered by a court to contribute to the support of the [claimant] because the [claimant]
was his son or daughter." The claims folder contains a court order, dated January
16, 1979, approving a compromise and settlement in a Michigan paternity action brought
by Candace J~ against the wage earner. The order states that the wage earner denied
paternity but that the parties had agreed to settle the action. The wage earner agreed
to pay $2,500 in full settlement of the action, $1,000 upon execution of the agreement
and the remainder at the rate of $40 per week pursuant to a wage assignment. The order
then states that the foregoing sum "shall stand in full settlement and compromise
on any claim made by the plaintiff relative to the obligations of said defendant."
The court also stated that the agreement of the parties barred all other remedies
of Candace and Joshua J~ for the support and education of the child. Finally, the
order stated that '"the Court does hereby approve said settlement pursuant to MCL
722.713." 1/
We conclude that this order approving the settlement does not represent an order for
the wage earner to contribute to the support of the claimant "because the [claimant]
was his son." The court did not make a finding of paternity, did not render a judgment
for the plaintiff based on her complaint, and did not issue its order under any statute
requiring a parent to support his child. The wage earner did not admit paternity.
Under these circumstances, . ú we believe that the rationale expressed in our opinion
in Delmar B~, RA:V (P~) to Reg. Rep., BRSI, 6/24/69, is fully applicable here:
About all that can be derived [from the court order approving the settlement] is the
conclusion that the court ordered him to make these payments simply because he had
agreed to do so in order to settle the paternity action brought against him, without
admitting paternity. By so doing, as permitted by statute, he avoided the risk of
possibly being found to be the father of the child-claimant, an event which might
possibly have created for him financial liability for the child- claimant's support
and other expenses in an amount greater than that stipulated by the settlement agreement.
It seems clear enough to us that Congress, by including the phrase "because the applicant
was his son or daughter" in the pertinent court order for contributions to support
clause of section 216(h)(3)(C), supra, intended to exclude situations just like this
where, although there is a settlement of a paternity action, there is neither an admission
nor a judicial finding of paternity. In situations like this, while there is a possibility
that the person settling such an action may actually be the child's father there is
also the possibility that while he is actually not he simply wishes to avoid the possibility
of being so adjudged.
We adopt that rationale here and find that there is no tenable basis for concluding
that the January 16, 1979 order was an order directing the wage earner to contribute
to the support of the claimant because she was his daughter.
The Michigan statute referred to by the court in its order, M.C.L.A. 722.713 (West),
provides that:
-
(a)
An agreement or compromise made by the mother or child or by some authorized person
on their behalf with the. father concerning the support and education of the child
shall be binding upon the mother and the child only when the court having jurisdiction
to compel support and education of the child shall have determined that adequate provision
is reasonably secured by payment or otherwise and has approved the agreement or compromise.
-
(b)
The performance of the agreement or compromise, when so approved, shall bar other
remedies of the mother or child for the support and education of the child. (emphasis
supplied).
The statute refers to a court-approved agreement between the mother of the child and
the "father." Although the issue is not free from doubt, we believe that the reference
to "father" is strictly precatory and does not indicate that either the settlement
or the court's approval of the settlement is necessarily based on the putative father's
actual paternity. While Michigan courts have not directly decided whether a court-approved
agreement under the statute carries connotations of actual paternity, we believe that
the court in Van Laar
v. Rozema, 288 N.W.2d 667 (Mich. App. 1980) accurately characterized the statute in stating
that "M.C.L.A. 722.713 permits the mother and putative father to reach an agreement
or compromise for the support and education of an illegitimate child in lieu of proceeding
to trial on the paternity issue" (emphasis supplied). Indeed, the operative condition
set forth in the statute for court approval of a settlement is not that the putative
father actually be the father of the child but that adequate provision for the support
and education of the child be secured by the agreement, regardless of the existence
of paternity. Moreover, in People v. Gill, 226 N.W. 214 (Mich. 1929), the court held that an agreed settlement in a paternity
proceeding (later rejected by the county welfare board under then-applicable law)
was subsequently inadmissible as tending to show paternity. The statute therefore
does no more than grant a court authority to approve a settlement in the best interests
of a child and dispose of a paternity action.
This opinion does not mean that a court order directing a putative father to pay pursuant
to a settlement can never satisfy the requirement of Section 216(h)(3)(C)(i)(III)
that the wage earner "had been ordered by a court to contribute to the support of
the applicant because the applicant was his son or daughter." Obviously, a settlement
may follow a paternity hearing and the court in this and other situations may approve
a settlement based on an ex- press or implicit finding of paternity (such as when
the court refers to "his child"). Similarly, if the wage earner has admitted paternity
or the court approves the settlement order under, or otherwise refers to, a statute
requiring a father to support his child, the statutory requirement will be met. Indeed,
this requirement may be satisfied even though the court makes no reference to paternity
in approving the settlement, so long as the surrounding circumstances give rise to
a conclusion that the court so acted "because the [claimant] was [the wage earner's]
son or daughter." Here, the wage earner denied paternity, and the court's order was
based solely on its approval of the settlement in order to dispose of the paternity
action.
Finally, we address an opinion dated March 4, 1980 by the Acting Assistant Regional
Commissioner in a similar case. This opinion is contained in the claims folder. Oscar
M~, Acting ARC, Programs, Region V (W~) to Director, GLPSC, 3/4/80. The opinion briefly
refers to a court order directing payments of "child support," based on a compromise
agreement in which the putative father denied paternity, and states that despite the
lack of an admission of paternity or a court declaration of paternity, "there is no
reasonable doubt that the court ordered the support payments on the grounds that Oscar
M. M~ was the child's father." We have no quarrel with this aspect of the opinion;
as we have just discussed, a court-approved settlement may under appropriate circumstances
satisfy the requirements of the statute even in the absence of an express admission
or finding of paternity. Without knowing the specific facts of M~, we may assume,
as the opinion indicates, that the court approved the settlement and directed payment
of "child support" because "Oscar M. M~ was the child's father." We have reached an
opposite conclusion based on the facts of this case. How- ever, the M~ opinion also
suggests that a court order of support may itself be sufficient for purposes of entitlement
even though the order does not indicate, either expressly or by implication, that
the wage earner is the child's parent, since if this were not so, "there would be
little point in having a separate 'court order for support' test as an alternative
to the 'written acknowledgement' and 'court finding of' paternity' tests."
We disagree with this latter aspect of the March 4, 1980 opinion. Under the clear
language Of the statute, the mere fact that the court orders support is insufficient;
instead, the court must do so "because the applicant was his son or daughter." As
we have discussed, a court order approving a settlement or otherwise ordering support
need not name the wage earner as the child's parent so long as it is apparent that
the court acted "because" the wage earner was the child's father. Moreover, a court
may order support "because of" paternity even though the wage earner has not acknowledged
paternity in writing - as when the wage earner acknowledges paternity in open court
- or even though the court has not actually decreed the wage earner to be the father
of the child - as when the court simply renders judgment for the plain- tiff based
on her complaint or issues its order under a statute requiring a parent to support
his child. Admittedly, the three alternative tests set forth in Section 216(h)(3)(C)
may overlap, and there are many cases that may satisfy more than one of those tests.
Nevertheless, the three tests are distinct, and many cases will only satisfy one test.
Accordingly, we conclude that Joshua J~ is not entitled to benefits as the child of
the wage earner. The claims folder is returned herewith. 1/ In a statement accompanying
her application for benefits On behalf of the claimant, Candace J~ asserted that the
wage earner never lived with the child but did on two occasions contribute small sums
of money (totaling $50.00) for shoes and medicine for the child. She also stated that
the wage earner acknowledged paternity to three friends and his sister. Two of these
friends. subsequently stated that the wage earner denied being the claimant's father.
A third friend, Tom C~ , indicated to SSA personnel by telephone that he "thought"
the wage earner was the claimant's father because the wage earner was dating Candace
J~, and indicated he would make a formal statement after consulting with her. However,
C~ never made a formal statement. As for the wage earner's sister, Candace J~ stated
that Tom C~ could supply her address and telephone number. However, C~ never supplied
this information.
2/ In a recent opinion involving an Illinois court-approved settlement, we concluded
that the settlement satisfied Section 216(h)(3)(C)(i)(III) because the court had approved
the settlement after considering the evidence of paternity, including testimony and
blood tests. L~, William, ~, RA:V (M~) to Director, GLPSC, 8/24/83. The statute in
that case required the court to consider the "probable evidence" of paternity in reviewing
and approving a settlement. We distinguished B~ by noting that in the latter case
there was no indication that the Illinois trial court had taken any testimony or other
evidence and thereby considered the "probable evidence" in approving the settlement.
We also noted in L~ that parties may settle a paternity action prior to judgment for
a variety of reasons, e.g., desire of the putative father to avoid a final determination
(with potentially greater financial obligation) or publicity, or the immediate need
of the mother and child.
Here, there is no indication that the Michigan trial court took any evidence or considered
the probable paternity of the wage earner in approving the settlement. As we have
discussed, the governing statute does not require consideration of the probable evidence
of paternity. The small amount of the settlement - $2,500 - supports the conclusion
that the settlement was based solely on the parties' desires to end the litigation.