Under North Carolina’s intestacy law, a child born in wedlock is presumed to be legitimate. This presumption can be rebutted only by facts and circumstances which show that the husband could not have been the father.

In this case, the number holder (NH) and Claimant’s mother married prior to the Claimant’s birth, and nothing in the information provided indicates that they divorced before Claimant was born (or anytime thereafter). In addition, Claimant’s birth certificate lists the NH as his father. Although the information provided raises some questions regarding whether NH is Claimant’s father, such as the absence of prior claims for benefits contemporaneous with NH’s DIB application prior to his death or the WIB application filed by Claimant’s mother’s after NH died, we do not believe the information is sufficient to overcome the presumption that Claimant is NH’s child based on NH’s marriage to Claimant’s mother, or even the prima facie evidence of Claimant’s birth certificate.

Whether D~(Claimant) is the child of J~, the number holder (NH), for determining Claimant’s eligibility for Child’s Insurance Benefits (CIB) on NH’s earnings record where NH was married to Claimant’s mother, A~, when Claimant was born.

The evidence provided does not rebut the presumption that Claimant is NH’s child because NH and Claimant’s mother were married when Claimant was born. Therefore, Claimant is NH’s child for determining Claimant’s eligibility for CIB on NH’s earnings record.^[1]

A North Carolina marriage license and certificate shows that NH and Claimant’s mother were married on March XX, 1965. Claimant’s North Carolina birth certificate shows that he was born in 1980 and designates NH as his father. Claimant’s mother signed the birth certificate, certifying that she had inspected it for accuracy. NH’s death certificate shows that he was a resident of North Carolina when he died in August 1995. None of the documents or other information provided indicates that NH and Claimant’s mother divorced.

According the information provided, Claimant applied for CIB on NH’s earnings record on June XX, 2019, as a disabled adult child. Claimant submitted a Child Relationship Statement in which he indicated that he had no evidence that NH acknowledged or accepted Claimant as his child. The agency denied Claimant’s application due to a lack of evidence that Claimant was NH’s child. At the time of the denial, Claimant’s Numident did not list NH as his father, apparently because Claimant’s mother had not provided the name of Claimant’s father. Claimant subsequently provided a copy of his birth certificate, which, as noted above, lists NH as his father. The agency plans to update Claimant’s Numident based on his birth certificate.

Agency records show that NH applied for Disability Insurance Benefits (DIB) in 1991. NH listed A2~ as his child in his DIB application, but he did not list Claimant as his child. NH apparently reported in his DIB application that he and Claimant’s mother had separated beginning in 1976 or 1977. Agency records list Claimant’s mother as NH’s spouse in 1975, but do not indicate that NH had a spouse in 1979. Agency records also show that A2~ applied for survivor’s benefits on NH’s earnings record in December 1995 and did not list Claimant as a child of NH. Agency records further show that Claimant’s mother applied for Widow’s Insurance Benefits (WIB) on NH’s earnings record in 1995 and 1996, but she did not list Claimant as a child of NH in her WIB applications.

A. Federal Law and Agency Policy

A claimant may be eligible for CIB on the earnings record of an individual who dies fully or currently insured if the claimant is the insured individual’s “child.” Social Security Act (Act) § 202(d)(1); see 20 C.F.R. § 404.350(a)(1) (2019);^[2] Program Operations Manual System (POMS) GN 00306.002A, B; POMS RS 00203.001A.1.b. Additionally, for entitlement to CIB, the claimant must be dependent upon the insured. See 20 C.F.R. § 404.360; POMS GN 00306.002C; POMS RS 00203.001A.1.c. Dependency is determined based on the relationship of the child to the insured. See 20 C.F.R. §§ 404.361 – 404.365; POMS GN 00306.002F. “Child” includes “the child” of an insured individual. Act § 216(e)(1); see 20 C.F.R. § 404.354; Astrue v. Capato, 566 U.S. 541, 547-48 (2012). A claimant may show he or she is “the child” of an insured individual, within the meaning of section 216(e)(1), under section 216(h)(2)(A) of the Act. See Capato, 566 U.S. at 548-49. Under section 216(h)(2)(A), a claimant is considered “the child” of an insured individual if the claimant could inherit the insured individual’s intestate personal property under the law of the state in which the insured individual was domiciled when he died. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4); Capato, 566 U.S. at 548-49; POMS GN 00306.001J, O.1; POMS GN 00306.010A.

The POMS states that, generally, “State laws presume that a child born in wedlock is the natural legitimate child of the mother’s husband.” POMS GN 00306.020A.1; see POMS GN 00306.011A.2; POMS GN 00306.013A, B. The agency may question the natural legitimate status of a child born during wedlock in some situations, such as when “[a]n adverse claimant or the NH’s relative raises the question of the child’s paternity, or evidence casts doubt on his/her natural legitimate status,” or “[t]he child’s mother or her legal husband volunteers information that raises doubt about the child’s legitimacy.” POMS GN 00306.020B.1, B.2; see POMS GN 00306.012C; POMS GN 00306.013C5-8; see also POMS GN 00306.021A, C (discussing general rule regarding rebuttal of presumption of legitimacy and acceptable evidence rebutting presumption). However, “[t]he rules concerning the presumption of legitimacy and the evidence necessary to rebut it vary from State to State.” POMS GN 00306.020A.1.

According to NH’s death certificate, he was domiciled in North Carolina when he died. Thus, North Carolina law on intestate succession will determine Claimant’s status as NH’s child per section 216(h)(2)(A) of the Act. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4); Capato, 566 U.S. at 548-49; POMS GN 00306.001J, O.1; POMS GN 00306.010A.

B. State Law

Under North Carolina’s intestacy law, a surviving child is entitled to a share of a decedent’s personal property not disposed of by will and not distributed to a surviving spouse. See N.C. Gen. Stat. Ann. §§ 29-13(a), 29-14(b)(1), (b)(2), 29-15(1), (2), 29-16(a)(1) (West 2019).^[3] “When a child is born in wedlock, the law presumes it to be legitimate, and this presumption can be rebutted only by facts and circumstances which show that the husband could not have been the father . . . .” Eubanks v. Eubanks, 159 S.E.2d 562, 568 (N.C. 1968); accord Jones v. Patience, 466 S.E.2d 720, 723 (N.C. Ct. App. 1996) (stating “North Carolina courts have long recognized that children born during a marriage . . . are presumed to be the product of the marriage”). “The presumption is universally recognized and considered one of the strongest known to the law.” In re Legitimation of Locklear by Jones, 334 S.E.2d 46, 51 (N.C. 1985).

However, the marital presumption “can be overcome by clear and convincing evidence.” N.C. Gen. Stat. Ann. § 49-12.1(b); see Wright v. Wright, 188 S.E.2d 317, 325-26 (N.C. 1972) (stating the marital presumption “must give way before dependable evidence to the contrary”). “Clear, cogent, and convincing describes an evidentiary standard stricter than a preponderance of the evidence, but less stringent than proof beyond a reasonable doubt.” North Carolina State Bar v. Sheffield, 326 S.E.2d 320, 323 (N.C. 1985). Examples of facts and circumstances that may overcome the marital presumption include impotency of the presumed father, the presumed father did not have access to the mother when the child was conceived, evidence the mother was notoriously living in adultery, or evidence based on blood group testing results. See Jeffries v. Moore, 559 S.E.2d 217, 218 (N.C. Ct. App. 2002); see also N.C. Gen. Stat. Ann. § 8-57.2 (stating in cases involving the issue of paternity of child born or conceived during a marriage, “the presumed father or the mother of such child is competent to give evidence as to any relevant matter regarding paternity of the child, including nonaccess to the present or former spouse”); Wake County v. Green, 279 S.E.2d 901, 904 (N.C. Ct. App. 1981) (stating “literal impossibility of access” not required to rebut presumption and holding where “the spouses are living apart, the presumption will be rebutted unless there is a fair and reasonable basis in light of experience and reason to find that they have engaged in sexual relations”).

In this case, NH and Claimant’s mother married in 1965, and nothing in the information provided indicates that they divorced before Claimant was born (or anytime thereafter). In addition, Claimant’s birth certificate lists NH as his father. Under North Carolina law, vital records such as birth certificates are prima facie evidence of the facts contained therein. N.C. Gen. Stat. Ann. § 130A-93(h). Although the information provided raises some questions regarding whether NH is Claimant’s father, such as the absence of prior claims for benefits contemporaneous with NH’s DIB application prior to his death or the WIB application filed by Claimant’s mother’s after NH died, we do not believe the information is sufficient to overcome the presumption that Claimant is NH’s child based on NH’s marriage to Claimant’s mother, or even the prima facie evidence of Claimant’s birth certificate. NH apparently alleged in his DIB application that he and Claimant’s mother had separated in 1976 or 1977, three or four years before Claimant was born. However, the evidence does not establish that they lived apart or did not have sexual relations during the time when Claimant was conceived. In addition, nothing indicates that NH was impotent or that he did not have access to Claimant’s mother. The evidence also does not indicate that Claimant’s mother was living in adultery, and the evidence does not include blood group testing results. NH, Claimant’s mother, and NH’s daughter apparently did not identify Claimant as a child of NH in their respective applications for benefits, but the evidence does not include any affirmative statement by NH or anyone else that Claimant was not NH’s child. The information presented does not provide clear and convincing evidence to overcome the presumption that NH is Claimant’s father under North Carolina law, including for purposes of intestate succession.

The evidence provided does not rebut the presumption that Claimant is NH’s child based on the marriage of NH and Claimant’s mother. Therefore, Claimant is NH’s child under North Carolina intestacy law and section 216(h)(2)(A) of the Act for determining Claimant’s eligibility for CIB on NH’s earnings record.

To qualify for CIB and the lump-sum death payment on the earnings record of an individual who died a fully or currently insured individual, a claimant must be that individual’s child. In this case, NH’s death certificate indicates he was domiciled in North Carolina when he died. Therefore, we look to North Carolina intestacy law to determine whether Claimant is NH’s child for purposes of section 216(h)(2)(A) of the Act. Under North Carolina law, when conception occurs during the marriage of its mother, a child is presumed to be the legitimate offspring of the then husband of the mother, notwithstanding it is born after the termination of the marriage.

We do not believe the evidence contains clear and convincing evidence to rebut the presumption that William is Claimant’s father. Claimant’s mother stated that while she was married to William, not NH, at the time of Claimant’s conception, William was incarcerated and she and William separated in February 1986. After her separation from William, Claimant’s mother stated she lived with NH. However, Claimant’s mother made no assurances that she had no contact with William during the relevant period, and there is no evidence showing the time period William was incarcerated.

We believe a North Carolina court would afford little probative weight to the statement of Claimant’s mother, because there is no other evidence supporting her statement or showing William had no access during the relevant period. The Claimant’s birth certificate issued by the State of North Carolina, Mecklenburg County, Registrar of Deeds, named William as the father of Claimant and the Claimant’s mother did not present any DNA or similar scientific evidence to support that the NH is the child’s father.

QUESTION

You have asked whether the evidence shows the claimant is the child of the deceased number holder for determining the claimant’s eligibility for child’s insurance benefits on the number holder’s earnings record.

OPINION

For the reasons set forth below, we conclude that the evidence presented does not rebut the presumption of legitimacy of a child born in wedlock in North Carolina and the claimant is not the number holder’s child for determining the claimant’s eligibility for CIB on the number holder’s earning record.

BACKGROUND

According to the information provided, Fred, the number holder (NH), died on January 18, 2013. NH’s death certificate indicates he was a resident of North Carolina when he died. Wesley (Claimant) was born on October, in North Carolina. Claimant’s birth certificate lists Tammy as Claimant’s mother and William as his father. A South Carolina marriage certificate indicates Claimant’s mother married William in June 1985.

In May 2013, NH’s father applied on behalf of Claimant for CIB and the lump sum death payment on NH’s earnings record. The evidence provided includes a copy of a South Carolina marriage certificate showing Claimant’s mother married NH on June 22, 1990. NH’s mother provided a letter in which she referred to Claimant as her grandson and stated NH was present at Claimant’s birth. NH’s father also provided a letter in which he referred to himself as Claimant’s grandfather. NH’s mother and father both reported Claimant has lived with them since 1992.

In a conversation with Agency personnel, Claimant’s mother reported she and William were married when Claimant was born, but they had been separated and William was in prison. Claimant’s mother later provided a statement in which she reported she separated from William in February 1986, and began living with NH. Claimant’s mother also reported she divorced William in June 1988. Agency personnel contacted the Mecklenburg County Superior Court, North Carolina, and confirmed Claimant’s mother and William were divorced on June 27, 1988. Claimant’s mother also reported to Agency personnel that she would provide a statement explaining why William’s name is on Claimant’s birth certificate, but the information provided does not include an explanation from Claimant’s mother.

DISCUSSION

Child status under § 216(h)(2)(A) of the Social Security Act (Act)

To qualify for CIB and the lump-sum death payment on the earnings record of an individual who died a fully or currently insured individual, a claimant must be that individual’s “child.” See Act §§ 202(d), 202(i); 20 C.F.R. §§ 404.350(a)(1), 404.390, 404.392(a)(2) (2013). All references to 20 C.F.R. are to the 2013 version unless otherwise noted.

“Child” includes “the child” of an insured individual. See Act § 216(e)(1); 20 C.F.R. § 404.354; Astrue v. Capato, 132 S. Ct. 2021, 2027-28 (2012). A claimant may show he is “the child” of a deceased insured individual, within the meaning of section 216(e)(1) of the Act, under either section 216(h)(2)(A), section 216(h)(2)(B), or section 216(h)(3)(C) of the Act. See C~, 132 S. Ct. at 2028. Under section 216(h)(2)(A), a claimant must show he would be entitled to a child’s share of the insured individual’s intestate personal property under the law of the State in which the insured individual was domiciled when he died. See Act § 216(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b)(1), (b)(4); Program Operations Manual System (POMS) GN 00306.055.A.1.

NH’s death certificate indicates he was domiciled in North Carolina when he died. Therefore, we look to North Carolina intestacy law to determine whether Claimant is NH’s child for purposes of section 216(h)(2)(A) of the Act. Under North Carolina law, “[w]hen conception occurs during the marriage of its mother, a child is presumed to be the legitimate offspring of the then husband of the mother, notwithstanding it is born after the termination of the marriage.” State v. Bowman, 52 S.E.2d 345, 345 (N.C. 1949); see also N.C. Gen. Stat. Ann. § 50-11 (West 2013) (stating a divorce cannot render a child illegitimate if the child was “in esse, or begotten of the body of the wife” during the marriage). Thus, although Claimant’s mother divorced William four months prior to Claimant’s birth, Claimant is presumed to be a child born of the marriage and William’s legitimate child.

The presumption of legitimacy of a child is considered one of the strongest known to the law. See In re Legitimation of Locklear by J~, 334 S.E.2d 46, (N.C. 1985). This presumption can be overcome only by facts and circumstances showing the presumed father (the husband) could not be the natural father. See Eubanks v. Eubanks, 159 S.E.2d 562, 568 (N.C. 1968); Jeffries v. Moore, 559 S.E.2d 217, 218 (N.C. Ct. App. 2002); Carpenter v. Hawley, 281 S.E.2d 783, 785-86 (N.C. Ct. App. 1981); see also N.C. Gen. Stat. Ann. § 49-12.1(b) (West 2013) (“The presumption of legitimacy can be overcome by clear and convincing evidence”). “Clear, cogent, and convincing describes an evidentiary standard stricter than a preponderance of the evidence, but less stringent than proof beyond a reasonable doubt.” North Carolina State Bar v. Sheffield, 326 S.E.2d 320, 323 (N.C. 1985)(citing In re M~, 316 S.E.2d 246 (N.C. 1984)). Examples of facts and circumstances that may overcome the presumption include impotency of the presumed father, the presumed father did not have access to the mother when the child was conceived, evidence the mother was notoriously living in adultery, and evidence based on blood group testing results. See Jeffries, 559 S.E.2d at 218; see also N.C. Gen. Stat. Ann. § 8-57.2 (West 2013) (“Whenever an issue of paternity of a child born or conceived during a marriage arises in any civil or criminal proceeding, the presumed father or the mother of such child is competent to give evidence as to any relevant matter regarding paternity of the child, including nonaccess to the present or former spouse”). In Wake County ex rel. Manning v. Green, 279 S.E.2d 901, 905 (N.C. Ct. App. 1981), the child’s mother testified that she had not seen her husband in five years and had sexual relations only with the putative father during the period in which conception occurred. A Wake County Child Support Investigator also testified that she could not locate the husband to obtain his statement. See id. at 902. The North Carolina Court of Appeals found that the wife’s testimony coupled with the testimony of the child support investigator provided sufficient proof to overcome the presumption of legitimacy. See id. at 905.

Here, we do not believe the record contains clear and convincing evidence to rebut the presumption that William is Claimant’s father. Claimant’s mother stated that while she was married to William, not NH, at the time of Claimant’s conception, William was incarcerated and she and William separated in February 1986. After her separation from William, Claimant’s mother stated she lived with NH. However, Claimant’s mother made no assurances that she had no contact with William during the relevant period, and there is no evidence showing the time period William was incarcerated. Following the holding in Wake County, we believe a North Carolina court would afford little probative weight to the statement of Claimant’s mother, because there is no other evidence supporting her statement or showing William had no access during the relevant period. Also, Claimant presented no DNA or similar scientific evidence to support his claim that NH is his father.

In addition, Claimant’s birth certificate issued by the State of North Carolina, Mecklenburg County, Registrar of Deeds, named William as the father of Claimant. Birth certificates are prima facie evidence of the facts contained therein. See N.C. Gen. Stat. Ann. § 130A-93(h) (West 2013). Also, the record does not indicate William denied paternity of Claimant. Thus, we believe based on North Carolina law Claimant has not presented clear and convincing evidence sufficient to rebut the presumption that Claimant is William’s child. Based on the information provided indicating a determination was made, our opinion does not address the issue of whether or not Claimant was the stepchild of NH.

Child status under § 216(h)(2)(B) of the Act

If a claimant is the son or daughter of an insured individual but cannot show he or she is “the child” under section 216(h)(2)(A) of the Act, he or she may be deemed “the child” of the insured individual if the insured and the other parent went through a marriage ceremony that would have been valid but for certain legal impediments. See Act § 216(h)(2)(B); 20 C.F.R. § 404.355(a)(2); C~, 132 S. Ct at 2028; POMS GN 00306.090(A)(1). In this case, Claimant’s mother and NH were married after Claimant’s birth. However, there is no indication that any legal impediments to the marriage existed. Thus, the available evidence also does not establish that Claimant is NH’s child under section 216(h)(2)(B) of the Act.

Child status under § 216(h)(3)(C) of the Act

To establish child status under section 216(h)(3)(C) of the Act, the claimant must show he is the biological child of the number holder and one of the following: (1) the number holder acknowledged in writing that the claimant is his child; (2) a court decreed the number holder to be the claimant’s father; (3) a court ordered the number holder to contribute to the support of the claimant; or (4) the number holder is the claimant’s father and was living with or contributing to the support of the claimant when the number holder died. See Act § 216(h)(3)(C); 20 C.F.R. § 404.355(a)(3), (a)(4); POMS GN 00306.100. The information provided does not include a written acknowledgement by NH that Claimant was his child, a court order for NH to pay child support, a court order decreeing NH to be Claimant’s father, or evidence that NH was living with or contributing to Claimant’s support. Thus, the available evidence also does not establish that Claimant is NH’s child under section 216(h)(3)(C) of the Act.

CONCLUSION

Based on the information provided, we conclude the evidence is not sufficient to rebut the presumption of legitimacy of a child born in wedlock under North Carolina law and Claimant is not the child of NH for the purposes of child’s insurance benefits.

Sincerely,

Mary A. Sloan

Regional Chief Counsel

By: __________

Jennifer L. Patel

Assistant Regional Counsel

In North Carolina, the presumption of legitimacy may be rebutted only by competent evidence showing that the husband could not have been the father, as that he was impotent or could not have had access to his wife.

The evidence in this case includes a vague statement from the mother that the child was illegitimate, a statement that the number holder abandoned the family when the claimant was three years of age, and evidence that the number holder may have been having relations outside of marriage at the time of the claimant's conception and birth. None of this evidence reaches the standards required under North Carolina law.

QUESTION PRESENTED

You asked whether the evidence presented is sufficient to rebut the presumption of legitimacy of a child born in wedlock under North Carolina law.

ANSWER

Based on the following analysis, we conclude that the evidence presented does not rebut the presumption of legitimacy of a child born in wedlock under North Carolina law and that the claimant would be considered the number holder's child.

BACKGROUND

Robert , the number holder (NH), married Vera on November 27, 1947. Approximately five years later, the couple had a son, Michael (Claimant), born May. Claimant's birth certificate indicates NH was his father. NH and Claimant's mother divorced on August 9, 1957. The divorce was granted because NH "committed willful and malicious desertion and absence from the habitation of [Claimant's mother], the injured and innocent spouse, without reasonable cause, for and during the term and space of two years and upwards." Following his divorce from Claimant's mother in 1957, NH married another woman who had changed her surname to "D~" in July 1952, two months after Claimant's birth and approximately five years before NH's divorce.

In November 1970, NH became entitled to Social Security disability benefits. On August 14, 1974, Claimant filed an application for Supplemental Security Income (SSI) benefits. A notification of birth registration for Claimant was presented when the SSI application was filed, showing NH as Claimant's father. However, Claimant's mother also provided a statement that Claimant was illegitimate and that NH did not know he was not the father. Claimant's mother was unable to produce any information about the true identity or whereabouts of Claimant's father.

NH died on August 8, 1993, in Asheville, North Carolina, and was a resident of North Carolina at the time of his death. The information provided also indicates Claimant's mother is deceased. On June 5, 2006, Mercy Behavioral Health filed an application for Disabled Adult Child (DAC) benefits on behalf of Claimant on the earnings record of NH. Claimant's 1974 SSI application, which contained his mother's statement questioning Claimant's relationship to NH, was located and associated with Claimant's DAC application.

The information provided also states Claimant's applications for a Social Security Number completed in March 1969 and March 2000 indicated NH was his father.

DISCUSSION

To qualify for child's insurance benefits on the earnings record of an insured individual who has died, a claimant must be the insured individual's "child." See Social Security Act (Act) ' 202(d), 42 U.S.C. ' 402(d); 20 C.F.R. ' 404.350(a)(1) (2007). "Child" may include the natural child, adopted child, or stepchild of an insured individual. See Act ' 216(e), 42 U.S.C. § 416(e); 20 C.F.R. ' 404.354 (2007). In determining whether an applicant is the child of a deceased insured individual, the Social Security Administration (SSA) applies the State law that would be applied in determining the devolution of intestate personal property by the courts of the State in which the insured individual was domiciled at the time of his death. See Act ' 216(h)(2)(A), 42 U.S.C. ' 416(h)(2)(A); 20 C.F.R. ' 404.355 (2007) ("You may be eligible for benefits as the insured's natural child if . . . you could inherit the insured's personal property as her or her natural child under State inheritance laws").

The Program Operations Manual System (POMS) states that "[a] natural child is a child who is born to the parent, i.e., biological child" and "[a] legitimate child is a natural child who was born of a valid marriage (including a common-law marriage, where recognized)." POMS GN 00306.010.A.2. The POMS explain that State laws presume that a child born in wedlock is the natural legitimate child of the mother's husband. See POMS GN 00306.020. The legitimacy of the child may be questioned when, as here, the mother volunteers information suggesting that the child may not be legitimate. See POMS GN 00306.020 ("The child's mother or her legal husband volunteers information that raises doubt about the child's legitimacy. The acceptability of such statements depends on whether the State applies the Lord Mansfield Rule."). Thus, SSA must consider the applicable State law regarding legitimacy to decide whether a child is the legitimate child of the insured (and thus able to inherit from him as his natural child under the State's intestacy law). See POMS GN 00306.020 ("The rules concerning the presumption of legitimacy and the evidence necessary to rebut it vary from State to State").

Therefore, we must look to North Carolina law to determine whether the evidence presented here is sufficient to rebut the presumption that Claimant is the legitimate child of NH. Under North Carolina law, a child born in wedlock is presumed to be legitimate. See Guilford County Child Support Enforcement Unit v. Gardner, 473 S.E.2d 640, 642 (N.C. Ct. App. 1996). "'When a child is born in wedlock, the law presumes it to be legitimate, and this presumption can be rebutted only by facts and circumstances which show that the husband could not have been the father, as that he was impotent or could not have had access to his wife.'" Legitimation of Locklear by Jones, 334 S.E.2d 46, 51 (N.C. 1985) (quoting Eubanks v. Eubanks, 159 S.E. 562 (N.C. 1968)). The court in J~ noted that the rebuttable presumption of legitimacy of a child born to a married woman is "one of great antiquity, and doubtless [was applied] to avoid the serious disabilities attaching to the status of illegitimacy." Jones, 334 S.E.2d at 51. The court observed that the presumption is universally recognized and considered one of the strongest known to the law. Id.

The presumption of legitimacy may be rebutted only by "competent" evidence. See G~, 473 S.E.2d at 643. As noted above, the evidence needed to rebut the presumption must tend to show the inability of the husband to be the father. See Jones, 334 S.E.2d at 51. Examples of facts and circumstances that would show that the presumed father could not have been the natural father include evidence of the father's impotence or his lack of access to the mother. See Jefferies v. Moore, 559 S.E.2d 217, 218 (N.C. Ct. App. 2002). Evidence that the mother was notoriously living in adultery also would support a claim of nonaccess. See id. at 219. A court would also consider evidence of perceived racial differences between the mother, presumed father, and child, and evidence based on blood group testing results. See id.; see also Johnson v. Johnson, 461 S.E.2d 369, 575 (N.C. Ct. App. 1995) (noting evidence that husband and wife lived apart, wife was in relationship with other man, and husband and wife had been unsuccessful in conceiving child).

In this case, the information provided includes three pieces of evidence that raise a question regarding whether NH is the father of Claimant. These include a statement by Claimant's mother that Claimant was not legitimate, a notation in the divorce decree that NH had abandoned Claimant's mother for a period of "two years and upward," and evidence that NH's third wife changed her name to "D~" in 1952, two months after Claimant's birth and approximately five years before NH's divorce. The evidence presented is not sufficient under North Carolina law to rebut the presumption of legitimacy attaching to a natural child born in wedlock. The statement of Claimant's mother that he was illegitimate is deficient because it does not tend to show that NH "could not" have been Claimant's father. See J~, 559 S.E.2d at 218; J~, 461 S.E.2d at 575; J~, 334 S.E.2d at 51. Rather, the mother's statement is vague and lacking in any detail to establish that someone other than NH was Claimant's father. Claimant's mother was unable to provide any specifics about the identity or location of Claimant's alleged father. She offered no evidence, nor even any suggestion, tending to show that NH could not have been Claimant's father. Nothing in her statement demonstrates the inability of NH to be the father of Claimant. Such a vague and unreliable statement does not satisfy the standard to rebut the presumption of legitimacy, and it fails to even touch upon the "inability" of NH to be the father, a necessary component to challenge the presumption of legitimacy under North Carolina law. See J~, 559 S.E.2d at 218.

The language in the divorce decree is similarly unpersuasive. The fact that NH was found in 1957 to have abandoned the home for "two years and upwards" would mean that he abandoned his family in 1955, three years after Claimant was born. This would not show, as suggested, that NH was constantly absent from the home during the period when Claimant must have been conceived. The evidence that NH's future wife changed her surname to "D~" in 1952, two months after Claimant's birth, also provides no indication that NH "could not" have been Claimant's father. Although this evidence may indicate NH was involved in an extra-marital relationship with his future wife in 1952 or earlier and during the period Claimant "must have been conceived," it does not demonstrate the inability of NH to be Claimant's father. See J~, 559 S.E.2d at 218. The evidence presented here simply does not meet the standard under North Carolina law to rebut the presumption of legitimacy of a child born during wedlock.

CONCLUSION

We conclude the evidence presented is insufficient to rebut the presumption of legitimacy of a child born in wedlock under North Carolina law and the Claimant is the child of NH for the purposes of child's insurance benefits.

Mary A. Sloan

Regional Chief Counsel

By: __________

Richard V. Blake

Assistant Regional Counsel

In this case, North Carolina courts would find that statements from relatives that the deceased number holder had orally acknowledged the child in conversations with them coupled with a signed statement from the mother's husband that he did not have access and could not be the father would constitute clear and convincing evidence sufficient to rebut the presumption of legitimacy and establish that the child is one “born out of wedlock”.

The evidence most likely would not, however, be found to meet the clear, cogent, and convincing standard necessary to establish that the deceased number holder is the child's father.

QUESTION PRESENTED

You have asked whether an oral acknowledgement can constitute clear and convincing evidence under North Carolina intestacy law sufficient to rebut the state presumption of legitimacy and justify a child-status determination under Section 216(h)(2)(A) of the Social Security Act (Act), 42 U.S.C. § 416(h)(2)(A).

ANSWER

For the reasons set forth below, an SSA adjudicator could conclude that the oral acknowledgment(s) accompanied by the specific facts in this case rebut the presumption of legitimacy but do not provide a basis for establishing clear, cogent, and convincing evidence of paternity under North Carolina intestacy law.

BACKGROUND

According to your inquiry, number holder, Odell (NH) died on February 14, 2004. At the time of his death, he was domiciled in North Carolina. On September 29, 2006, Harriet (Claimant) filed for disabled widow's benefits on NH's record. In her application for benefits, Claimant stated she is the mother of NH's child, Sabrina. To support this claim, Claimant submitted signed statements from friends and relatives stating NH told them he was the biological father of Sabrina. However, Claimant was married to Julius when Sabrina was born. Claimant also listed Julius as Sabrina's biological father on Sabrina's birth certificate. Julius, however, submitted a signed statement indicating he could not be Sabrina's biological father, because he has not lived with Claimant or in North Carolina since 1972.

DISCUSSION

The Act defines “widow” to include the surviving wife of an individual who is the mother of his son or daughter. See § 216(c), 42 U.S.C. § 416(c), 20 C.F.R. § 404.355. A “child” of an insured individual includes, among others, one who could inherit a child's share of the insured individual's property under the intestate succession law of the state where the insured individual was domiciled when he died. See § 216(h)(2(A) of the Act, 20 C.F.R. § 404.355(b).

Here, Claimant attempts to prove she is NH's widow by showing her daughter, Sabrina, is NH's daughter. In support of her claim, Claimant provided the following evidence: (1) her statement that NH is Sabrina's biological father, (2) a signed statement from Julius , Claimant's husband at the time of Sabrina's birth, indicating he is not Sabrina's biological father, (3) a signed statement from John, NH's brother, saying NH told him Sabrina was NH's daughter, (4) a signed statement from Morica, a friend, indicting she heard NH refer to Sabrina as his daughter, (5) a signed statement from William, a local pharmacist and friend, stating NH told him Sabrina was his natural daughter, (6) a signed statement from Verstell, NH's sister, indicating NH said Sabrina was his daughter, and (7) a signed statement from Sabrina stating Claimant and NH told her she was NH's daughter.

Because NH died domiciled in North Carolina, North Carolina intestacy law applies. See § 216(h)(2)(A) of the Act, 20 C.F.R. § 404.355(b). Under North Carolina law, there is a strong presumption that a child born during wedlock is the natural, legitimate child of the mother's spouse. This presumption can be overcome by clear and convincing evidence which establishes that the husband was impotent or did not have access to the wife when the child was conceived. See Carpenter v. Hawley, 281 S.E.2d 783, 718-19 (N.C. Ct. App. 1981) (citing Ray v. Ray, 219 S.E.2d 224 (N.C. 1941)), see also N.C. GEN. STAT. §49-12.1(b) (2006). In Wake County, ex rel. Manning, 270 S.E.2d 901 (N.C. Ct. App. 1981), the North Carolina Court of Appeals found the testimony of the child's mother that she had not seen her husband in five years and had sexual relations only with the alleged putative father during the period in which conception occurred was sufficient to show husband did not have access to his wife and to overcome the presumption of legitimacy. Conversely, in Nash County Department of Social Services ex rel. Williams v. Beamon, 485 S.E.2d 851 (N.C. 1997) the appellate court found that the putative father's testimony that he did not know the child's mother, had not had sexual relations with her, and was not the father of her child was sufficient to rebut the presumption created by a 99.96% probability of paternity from paternity test results.

Here, Claimant was married to Julius, not NH, at the time of Sabrina's conception. However, Julius stated he has not been to North Carolina or with Claimant since he left in 1972. Claimant also stated she had been separated from Julius. Following the holding in Wake County, the fact that Julius and Claimant lived apart and had not seen each other since 1972 could be enough to overcome the presumption of legitimacy. See Wake County, 270 S.E.2d at 904.

If the evidence presented in this matter rebuts the presumption of legitimacy, Sabrina would meet the definition of a child born out of wedlock. See Legitimation of Locklear by J~, 334 S.E.2d 46, 50-51 (N.C. 1985). As relevant here, a child born out of wedlock can inherit from and through her father if paternity is established by an adjudication. See N.C. GEN. STAT. § 29-19 (2006). A child may also inherit if the biological father acknowledged the child in a written instrument executed before a certifying officer and properly filed in his lifetime. See id. Neither of these actions occurred prior to NH's death. However, where state law requires a court determination of paternity, the Agency will not require that a child obtain such a determination but will decide paternity by using the standard of proof that the state court would use. See 20 C.F.R. § 404.355(b)(2) (2006). The laws governing a civil action to establish paternity are found at N.C. GEN. STAT. §§ 49-14 through 49-16.

To establish the paternity of a child born out of wedlock, proof of paternity must be by “clear, cogent, and convincing evidence.” N.C. GEN STAT. § 49-14(b) (2006). “Clear, cogent, and convincing describes an evidentiary standard stricter than a preponderance of the evidence, but less stringent than proof beyond a reasonable doubt.” North Carolina State Bar v. Sheffield, 326 S.E.2d 320, 323 (N.C. 1985) (citing In re Montgomery, 316 S.E.2d 246 (N.C. 1984)). In Brown v. Smith, 526 S.E.2d 686 (N.C. Ct. App. 2000), the North Carolina Court of Appeals examined whether the trial court had properly found that the plaintiff presented clear, cogent, and convincing evidence to show that the defendant was the father of her child. An expert testified at trial that the sexual relations of the parties were consistent with conception of a child with a pregnancy that came to term on or about the child at issue's birthday. The plaintiff also testified that she had not had sexual contact with any man other than the defendant during a two year period which included the time of conception. Exhibits at trial also indicated that the defendant bore a strong resemblance to the child. The appellate court found that this evidence was sufficient for the trial court to conclude that the defendant was the father of the child under “clear, cogent, and convincing” standard. See id. at 688.

CONCLUSION

We can find support for an SSA adjudicator to conclude Claimant provided sufficient evidence to rebut the presumption of legitimacy and determine Sabrina was a child born out of wedlock. Based on the decision in B~, we can also find support for an SSA adjudicator to conclude that the evidence presented by Claimant would satisfy the “clear, cogent, and convincing” standard to establish that NH was Sabrina's father. In this regard, Claimant states that NH was Sabrina's father and friends and relatives state NH acknowledged Sabrina was his daughter and Sabrina resembled NH. On the other hand, the “clear, cogent, and convincing” standard is a high standard to meet. Claimant made no assurances that her sexual relations with NH were exclusive during the relevant period and she presented no DNA or similar scientific evidence to support her claim. Therefore, we find greater support of an SSA adjudicator to determine Claimant has not provided sufficient evidence to meet the “clear, cogent and convincing” standard required in North Carolina.

Mary A. Sloan

Regional Chief Counsel

By: __________

Jennifer L. Patel

Assistant Regional Counsel

North Carolina courts have long recognized that children born during a marriage are presumed to be the product of the marriage. However, the presumption is rebuttable by clear and convincing evidence that someone other than the mother's husband is the child's father. In this case, the presumption is rebutted by prior statements from both the number holder and his wife, the child's mother, and by a court order naming another man as father and granting him sole custody of the claimant.

Such evidence is sufficient to rebut the presumption by the clear and convincing evidentiary standard and to permit reopening of the child's award of benefits.

QUESTION PRESENTED

Whether the presumption of legitimacy of a child born during marriage is rebutted by prior statements made by the NH and his wife (the child's mother), and by a court order finding establishing that another man, to whom sole custody of the child was granted, is the child's father.

ANSWER

Based on the facts as presented, including the supplemental information provided, we believe that the evidence is sufficient to rebut the presumption of legitimacy, and therefore to reopen the prior allowance and terminate benefits.

BACKGROUND

The NH, Melvin, and his wife, Donna , have been married continuously since 1976. The child beneficiary, Kalin, was born on February. When NH filed for retirement benefits on February 7, 2001, he stated that he had no minor children. He also stated at that time that his wife had a son (Kalin) who was not his child. In April 2001, NH filed for disability benefits, again stating that he had no minor children.

In January 2003, NH's wife filed an application for child's benefits for Kalin on the earnings record of NH. This application was approved on January 23, 2003, and Donna was named as the representative payee. As you noted in your Report of Contact, the signature on the statement of paternity is remarkably different from each of the other documents signed by NH in the file. Upon close examination, this signature is strikingly similar to that of his wife, Donna. Although initially evasive when asked about Kalin's last name, when pressed by the CR in the Danville FO, Donna told the CR that Kalin's last name was "S~" because that was the last name of his biological father.

The documentation initially supplied showed that on August 2, 1993, Clyde filed an Acknowledgement of Paternity in the Person County, NC District Court. Upon further inquiry, you obtained additional information from the Durham FO showing that also on August 2, 1993, Donna filed a Mother's Affirmation of Paternity, naming Clyde as Kalin's father, and on that date, an Order of Paternity was entered by Presiding Judge Pattie, legally establishing Clyde as Kalin's father.

On November 16, 2004, Clyde was granted sole custody of Kalin, and Donna was allowed visitation “only at such times, durations and under such conditions as [Clyde ] deems to be appropriate.” On March 18, 2005, Clyde requested to be named as representative payee for Kalin.

DISCUSSION

North Carolina courts have long recognized that children born during a marriage are presumed to be the product of the marriage. Eubanks v. Eubanks, 273 N.C. 189, 197, 159 S.E.2d 562, 568 (1968). "[T]he presumption is universally recognized and considered one of the strongest known to the law.” In re Legitimation of Locklear, 314 N.C. 412, 419, 334 S.E.2d 46, 51 (1985). However, the presumption is rebuttable by clear and convincing evidence that someone other than the mother's husband is the child's father. See N.C. Gen. Stat. § 49-12.1(b) (2005).

In order to determine eligibility as a “child” as defined in section 216 of the Social Security Act, 42 U.S.C. § 416, SSA regulations and policy provide that state law governs this determination. See 20 C.F.R. § 404.355; POMS GN 00306.001. Here, the state court has already made a determination that NH is not Kalin 's father. Based on the acknowledgments sworn by both Donna and Clyde , the Person County District Court entered an order on August 2, 1993, establishing Clyde as Kalin's father. Although the Agency is not bound by this determination, see SSR 83-37c, we would reach the same conclusion even in the absence of the judicial finding.

Here, a significant body of evidence independent of the court's order has been presented to rebut the presumption of legitimacy. This evidence includes Donna's statement to the CR in Danville that Kalin was given the last name of "S~" to match that of his biological father, the signed statements by NH that he has no minor children, the order granting sole custody to S~, and the acknowledgments by both Donna and Clyde that S~, not NH, is Kalin's father. The only documentary evidence which provides any support that NH is Kalin's father is the written statement dated February 7, 2003, which as you noted, appears to have been signed by someone other than NH. We believe that this evidence constitutes “clear and convincing” proof that someone other than the mother's husband is Kalin's father sufficient to satisfy a North Carolina court and rebut the presumption of legitimacy.

CONCLUSION

We believe that the evidence is sufficient to reopen the application for child's benefits, and find that Kalin is not the child of NH under the law and is not entitled to benefits on the NH's record.

Mary A. Sloan

Regional Chief Counsel

By: __________

Michael S. Feinstein

Assistant Regional Counsel

The child claimant was conceived and born while her mother and the NH were married but separated. Under North Carolina law, where spouses are living apart, the presumption of legitimacy will be rebutted unless there is a reasonable basis to find that the couple has engaged in sexual relations. In this case, the couple was living apart at the child's conception and birth, and no evidence has been presented that they alleged in sexual relations during that time period. Moreover, both acknowledge that the NH is not the child's father. Therefore, the child is not presumed to be the NH's child.

NOTE: The statement in the opinion that the child may qualify as the NH's stepchild is incorrect. A child conceived and born to one of the parties after the couple marries is not the stepchild of the other party, per POMS GN 00306.230A.1.

You have requested our opinion as to whether a child who was conceived and born while her parents were married but separated can be considered the child of the husband. We believe that under the facts presented, the child would not be presumed the child of the husband.

Penny applied for child's insurance benefits for Christina and other children on Roy 's (NH's) account. Penny and NH, North Carolina residents, were married in South Carolina in May 1990. The couple was separated and had no contact when Christina was conceived and when she was born on July. Christina's last name is her mother's maiden name. Christina's biological father is not listed on her birth certificate. Penny and NH reconciled after Christina's birth and had two children. Penny and NH are living together. Both Penny and NH agree that Christina is not his child.

North Carolina courts have long held that children born during a marriage are presumed to be the product of the marriage. Eubanks v. Eubanks, 273 N.C. 189, 197, 159 S.E.2d 562, 568 (1968); Ambrose v. Ambrose, 140 N.C.App. 545, 546, 536 S.E.2d 855, 856 (2000). However, this presumption is rebuttable. Id; Johnson v. Johnson, 120 NC.App. 1, 461 S.E.2d 369, 374 (1995). The presumption of legitimacy can be rebutted with: 1) evidence of DNA testing excluding the husband as the biological father; 2) acknowledgement of paternity by another man or an adjudication that another man is the father; or 3) facts and circumstances showing that the husband could not be the father of the child (such as impotence or lack of access to the wife). J~, 461 S.E.2d at 374. ^[4] Where spouses are living apart, the presumption of legitimacy will be rebutted unless there is a reasonable basis to find that the couple has engaged in sexual relations. Wake County ex. Rel. Manning v. Green, 53 N.C.App. 26, 279 S.E.2d 901 (1981).

In our case, the couple was living apart at the time of Christina's conception and birth and no evidence has been presented that the couple engaged in sexual relations during that time period. Moreover, both Penny and NH acknowledge that Christina is not the biological child of NH. Accordingly, under the facts presented, Christina would not be presumed to be the child of NH. Christina might qualify as a stepchild of NH. See 20 C.F.R. §§404.354, 404.357, 404.363 (2003).

Mary A. Sloan

Regional Chief Counsel

By:

Laurie G. Remter

Assistant Regional Counsel