For a written acknowledgement to qualify under 216(h)(3)(C)(i)(I), it must (1) identify the child by name, or otherwise reference the specific child in an identifiable manner, e.g., as the child born to a specific person on a certain date or the child who is the unborn sibling of another named child; and (2) clearly acknowledge or identify the child as the NH’s child. In addition to the written acknowledgment, the evidence must establish a biological relationship between the NH and the child in order to find a parent-child relationship under 216(h)(3).

In this case, we believe the Facebook messages and posts from the NH should be considered a written acknowledgement by the NH that the child is his son. In addition, we believe evidence is sufficient to show the NH is the child’s biological father in favor of a finding that the NH is the child’s father.

You asked whether K~ (the child) would be considered the child of deceased number holder N~ (the NH) under Colorado intestacy laws or section 216(h)(3) of the Social Security Act (the Act) for purposes of surviving child’s benefits and a one-time lump sum death payment.

The child would not be considered the NH’s child under Colorado’s intestacy laws, but could, however, be deemed the NH’s child under section 216(h)(3).

The child was born in 2009 in Colorado. Although the child’s mother, DA, was not married at that time, she was in a relationship with another man, CW. CW is listed as the child’s father on the child’s birth certificate and reportedly acknowledges the child as his son. DA and the child relocated to the U.S. Virgin Islands in 2011. It is not clear what contact CW has had with the child since the relocation, although DA has indicated that CW has not visited them in the U.S. Virgin Islands. In addition, CW had contributed to the child’s support in the past, but is not currently doing so.

DA noticed that, as the child grew, he resembled the NH, with whom she had a past sexual relationship. She contacted the NH in December 2018 and informed him that she believed that he, rather than CW, was the child’s biological father. They discussed the child by name, and when DA sent pictures of the child to the NH via Facebook, the NH stated, “Yeahhh[sic]…He’s mine…,” and said the child looked “exactly like [him].” Nevertheless, the NH wanted to take a paternity test to be certain the child was his. The parties utilized an over-the-counter, mail-order test kit, which indicated a 99.99% probability that the NH was the child’s biological father.

The NH told his mother that the child was his, and the two traveled to the U.S. Virgin Islands in March 2019 to visit the child. A few months after the trip—on the child’s tenth birthday—the NH posted on social medial several photos of himself and the child, wished the child a happy birthday, and stated, among other things, “I cannot wait to hold you in my arms again my son. I love you more than words can express. I will see you soon young lion!” The two continued to visit regularly by phone.

A few months later, in early September 2019, the NH died. A program from the NH’s memorial service references “Memories for [NH]’s son [child].” The NH was domiciled in Colorado at the time of his death.

To determine the father-child relationship between a NH and a claimant for purposes of survivor’s benefits, the agency first looks to the intestate succession laws of the state in which the NH was domiciled when he died. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(b); POMS GN 00306.010. If the father-child relationship cannot be established under state intestacy laws, the agency looks to section 216(h)(3) of the Act, which describes a Federal standard for establishing a father-child relationship. See POMS GN 00306.100.

Here, the father-child relationship cannot be established under Colorado’s intestacy laws because CW’s name on the birth certificate establishes a legal finding that CW is the father. Because DA was unmarried at the time of the child’s birth, CW could be entered as the father only if he acknowledged paternity in writing at the time; that acknowledgment is treated as a legal finding of paternity after 60 days. See COLO. REV. STAT. ANN. § 19-4-105(1)(e) (acknowledgment), -(2)(b) (legal finding); § 25-2-112(3)(b) (birth certificate requirements); POMS GN 00306.120DEN. And even if there were not this legal finding of CW as the father, the evidence does not establish any presumptions of paternity for the NH. See generally, COLO. REV. STAT. ANN. § 19-4-105 (describing multiple presumptions of paternity). For example, there is no indication that the NH both resided with and held out the child as his own; nor is there any statutory compliant genetic-testing results (results from the mail-order, over-the-counter test kit do not satisfy the statutory requirements). See COLO. REV. STAT. ANN. §§ 19-4-105(d), -(f) (presumption of paternity when parent resides with and holds out child as his own; presumption of paternity if testing complies with statutory requirements and shows at least a 97% probably of paternity); 13-25-126 (setting forth genetic testing requirements).

The NH, however, could still be deemed the child’s father under 216(h)(3)(C)(i)(I) for having “acknowledged in writing” that the child is his son. For a written acknowledgement to qualify, it must:

• identify the child by name, or otherwise reference the specific child in an identifiable manner, e.g., as the child born to a specific person on a certain date or the child who is the unborn sibling of another named child; and

• clearly acknowledge or identify the child as the NH’s child. POMS GN 00306.105(B).

Here, we think the Facebook messages and posts, collectively, satisfy these requirements. The NH references the child specifically by name; there are photos of the child and the NH that accompany the messages and posts; and the NH is unequivocal in acknowledging the child as his son, including when wishing him a happy birthday on his tenth birthday. The acknowledgment need not be signed, and may be “in any format or on any material.” POMS GN 00306.105(B).

In addition to the written acknowledgment, the evidence must establish a biological relationship between the NH and the child in order to find a parent-child relationship under 216(h)(3). Here, there is reason to doubt the biological relationship because CW is listed as the father on the child’s birth certificate. POMS GN 00306.105(D)-(E). Nonetheless, we think this doubt is overcome by the overall body of evidence. First, DA reasonably explained why CW’s name is on the birth certificate—she was in a relationship with him at the time the child was born, and believed CW was his father—even though she also had a relationship with the NH. DA contacted the NH because of the child’s resemblance to him (both the NH and his mother also commented on the resemblance). Text messages confirm the NH requested a paternity test in December 2018; DA submitted the result of a mail order test dated January 2019. Although the mail order test result includes no names and is not acceptable evidence of a biological relationship per POMS GN 00306.125(B)(1)(b), it does corroborate DA’s statements. In addition, the NH’s mother submitted a statement referencing the paternity test; in a follow-up contact she indicated the NH was very excited to have received the test results and that she observed many similarities between the NH and the child when she and the NH visited the child in the Virgin Islands. Finally, the NH’s memorial service program references the child by name as his “son.” Because DA’s statements regarding the biological relationship are well corroborated, by contemporaneous statements from the NH as well as the NH’s mother, we think there is sufficient evidence to establish the parent-child relationship under 216(h)(3). See POMS GN 00306.125(B)(1)(b) (relationship may be established through statements from relatives or others with knowledge of the relationship that explain the basis for that knowledge).

We believe the Facebook messages and posts from the NH should be considered a written acknowledgement by the NH that the child is his son.  In addition, we believe evidence is sufficient to show the NH is the child’s biological father in favor of a finding that the NH is the child’s father.  Consequently, there is sufficient evidence of a father-child relationship under section 216(h)(3) of the Act.