Federal Law: A Natural Child under Section 216(h)(3)(C)(i) of the
Act
Under section 216(h)(3)(C)(i) of the Act, the biological child of a deceased number
holder may be deemed to be the number holder’s child if, before the deceased number
holder’s death:
(I) the number holder acknowledged in writing that the child was his child;
(II) a court decreed the number holder to be the child’s father; or
(III) a court ordered the number holder to contribute to the child’s support.
See 42 U.S.C. § 416(h)(3)(C)(i); 20 C.F.R. § 404.355(a)(3); POMS GN 00306.100.
Here, the issue centers upon whether before his death, the NH acknowledged in writing
that the Claimant was his child given that the Claimant’s EAB Numident record identifies
the NH as her father. We next consider the criteria for status as a child under section
216(h)(3)(C)(i)(I) of the Act and use of the EAB Numident as evidence of the written
acknowledgment. See POMS GN 00306.105.
1. Biological Relationship Required for Section 216(h)(3) Child
Status – Using the EAB Numident Record to Show Evidence of Biological Relationship
To establish status as a child under section 216(h)(3), the child must be the number
holder’s biological child. See 42 U.S.C. § 416(h)(3); 20 C.F.R. § 404.355(a)(3); POMS GN 00306.100A, GN 00306.105A. Of relevance here given the EAB Numident record evidence, the POMS instruct that
the agency should not raise the issue of the child’s biological relationship with
the number holder if the child’s Numident:
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includes an iteration that shows a “6” in the form code (FMC) field of the INTERNAL
line, indicating that it is an EAB record;
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shows the number holder’s name is in the mother’s name at birth (MNA) or father’s
name at birth (FNA) field of the EAB record (setting aside minor discrepancies);
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•
does not show someone else listed in the same MNA and FNA field in iterations following
EAB; and
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•
the EAB record was established before the number holder died.
POMS GN 00306.105D; see also POMS GN 00306.105E (reasons to doubt biological relationship), GN 00306.125B.1.a (instructing when the agency may accept the child’s Numident record as evidence of
the biological relationship when the parent-child relationship is based on other satisfactory
evidence and living with or support evidence per section 216(h)(3)).
Under such policy, the Claimant’s EAB Numident record established before the NH’s
death and listing the NH in the father’s name at birth (FNA) field (and J~ as her
mother) is evidence of their biological relationship for section 216(h)(3) purposes.
2. Written Acknowledgment of Paternity Required for Section 216(h)(3)(C)(i)(I)
Child Status – Using the EAB Numident Record as Evidence of Written
Acknowledgment
To establish status as a child under section 216(h)(3)(C)(i)(I), the number holder
must have acknowledged in writing that the child was his child before the number holder’s
death. See 42 U.S.C. § 416(h)(3)(C)(i)(I); 20 C.F.R. § 404.355(a)(3); POMS GN 00306.105. The number holder’s written acknowledgment of his or her child must both: identify
the child by name, or otherwise reference the specific child in an identifiable manner;
and clearly acknowledge or identify the child as the number holder’s child. POMS GN 00306.105B. The acknowledgment may be signed or unsigned; in the number holder’s handwriting
or recorded by someone else at the number holder’s express direction; be in any format
or on any material; not necessarily be in line with State laws regarding written acknowledgment
for intestacy purposes; or no longer be in existence or be unobtainable. Id.
The POMS provides a list of evidence that the agency will consider to be evidence
of the number holder’s written acknowledgment for purposes of section 216(h)(3), and
the child’s EAB Numident record and full birth certificate are on this list. POMS
GN 00306.105C. Here, we do not have the birth certificate, but we do have the Claimant’s EAB Numident
record naming the NH as her father.
The EAB process is a program that allows parents to complete applications for SSNs
for their newborns as part of the hospital birth registration process. 20 C.F.R. §
422.103(b)(2); POMS RM 10205.001B, RM 10205.005B, RM 10205.505. “When the hospital representative asks for information to complete the birth certificate,
he or she also asks the parents if they would like the State’s vital statistics office
to forward information to SSA to assign an SSN. If the parent agrees, the hospital
representative checks a block on the form indicating that the parent wants an SSN
assigned to his or her child. The hospital forwards this information to the State’s
vital statistics office along with birth certificate information. The State vital
statistics office then provides SSA with an electronic record used to assign an SSN
and issue a card.” POMS RM 10205.005B; see
also Social Security Numbers for Children, SSA Publication No. 05-10023 (Oct. 2022).[2] Thus, the same information collected by the State’s vital statistics office for the
State-issued birth certificate, which includes the names of the child’s parents, is
also transmitted to SSA as part of the EAB process. See POMS RM 10205.001B, RM 10205.005B, RM 10205.505.
POMS GN 00306.105C.3 instructs that the child’s EAB Numident record constitutes evidence of written acknowledgment
of paternity for purposes of section 216(h)(3) when the following criteria are met:
The [child’s] Numident constitutes evidence of written acknowledgment if it:
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•
includes an iteration that shows a “6” in the form code (FMC) field of the INTERNAL
line, indicating an Enumeration at Birth (EAB) record;
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•
shows the number holder’s name in the mother’s name at birth (MNA) or father’s name
at birth (FNA) field of the EAB Numident, setting aside minor discrepancies as described
in GN 00203.020A.2.C;
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•
does not show a name other than the number holder’s name in the same field (MNA or
FNA) in iterations following EAB; and
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the number holder’s written consent was required by the State during the EAB process.
Contact the State Bureau of Vital Statistics (BVS) or use a relevant precedent opinion
to determine if written consent was required. For more information, see GN 00306.120 [setting forth agency policy on use of a birth certificate as proof of written acknowledgment
or a court order].
POMS GN 00306.105C.3.
Here, the first three criteria are satisfied. The Claimant’s Numident record is an
EAB record; the Numident identifies the NH in the (FNA) father’s field and the mother
in the (MNA) mother’s field. No one else is named as the father in the Claimant’s
Numident record. The final criteria is whether the NH’s written consent was required
by the State of Arkansas during the EAB process.
In determining this issue, POMS GN 00306.105C.3 instructs the agency to use a relevant precedent opinion to determine if written
consent was required by the State and refers the agency to POMS GN 00306.120 for more information. POMS GN 00306.120 sets forth agency policy on use of a birth certificate as proof of written acknowledgment
or a court order for purposes of section 216(h)(3) child determinations. This provision
instructs that the agency may use a birth certificate to presume that there has been
a written acknowledgment or court determination of paternity if a precedent opinion
shows that applicable State law requires the written acknowledgment or court determination
of paternity in order for a father’s name to be listed on a non-marital child’s birth
certificate. POMS GN 00306.120B.2. There is no published precedent legal opinion for Arkansas in POMS PR 01210, the
POMS chapter with legal opinions addressing state law requirements for showing information
about a father on a child’s birth certificate for section 216(h)(3) child determinations.
Thus, in this opinion, we will set forth Arkansas law on the requirements for identifying
a father of a non-marital child on the birth certificate. As noted above, the same
information collected by the State’s vital statistics office for the State-issued
birth certificate, which would include any father’s name, is also transmitted to SSA
as part of the EAB process. See
POMS RM 10205.001B, RM 10205.005B, RM 10205.505.
3. Arkansas Law Requires the Father’s and Mother’s Written Consent to be Named as
the
Father on a Non-Marital Child’s Birth Record
Arkansas law provides that a birth certificate must be filed and registered with the
Arkansas Division of Vital Records of the Department of Health within 10 days after
a child’s birth. Ark. Code Ann. § 20-18-401(a). When a birth occurs in an institution,
an authorized person must obtain the personal data; prepare the birth certificate;
certify that the child was born alive at the place, time, and date stated on the certificate;
and file the certificate with the State. Ark. Code Ann. § 20-18-401(b). Following
the birth of a child to an unmarried woman, the person responsible for providing birth
registration information under section 20-18-401 must provide an opportunity for the
child’s mother and natural father to complete an affidavit of paternity, provide written
information to the child’s mother and natural father explaining the implications of
signing an affidavit of paternity, and provide written information to the child’s
mother of the benefits of having her child’s paternity established. Ark. Code Ann.
§ 20-18-408.
For purposes of birth registration, the mother is deemed to be the woman who gives
birth to the child, unless otherwise provided by state law or determined by a court
prior to the filing of the birth certificate. Ark. Code Ann. § 20-18-401(e). Information
about the father shall be entered on the birth certificate in accordance with Ark.
Code Ann. § 20-18-401(f), which instructs:
(1) If the mother was married at the time of the child’s conception or birth or between
conception and birth, the name of the husband shall be entered on the certificate
as the father of the child, unless:
(A) Paternity has been determined by a court of competent jurisdiction; or
(B) The mother executes an affidavit attesting that the husband is not the father
and that the putative father is the father, and the putative father executes an affidavit
attesting that he is the father, and the husband executes an affidavit attesting that
he is not the father...
(2) If the mother was not married at the time of either conception or birth or
between conception and birth, the name of the father shall not be entered on the
certificate of birth without an affidavit of paternity signed by the mother and the
person
to be named as the father. The parents may give the child any surname they choose.
(3) In any case in which paternity of a child is determined by a court of competent
jurisdiction, the name of the father and surname of the child shall be entered on
the certificate of birth in accordance with the finding and order of the court.
(4) If the father is not named on the certificate of birth, no other information about
the father shall be entered on the certificate.
Ark. Code Ann. § 20-18-401(f) (effective April 13, 1995, to present) (emphasis added).
Thus, per section 20-18-401(f)(2), a father will only be named on a non-marital child’s
Arkansas birth certificate if the father and the mother both sign an affidavit of
paternity.[3] This basic requirement in Ark. Code Ann. § 20-18-401 for written consent of both
the mother and father to name the father on a non-marital child’s birth certificate
has been in effect in Arkansas law since 1981. See Acts of 1981, Act 120, § 7; Acts of 1989, Act 396, § 2; Acts of 1995, Act 1254, §
16.
Here, the Claimant was born in 1989. Our understanding is that the Claimant’s mother
was not married to the NH (or anyone else) at the time the Claimant was conceived
or born. As such, under Arkansas law, the NH could only be identified as her father
as part of the Arkansas birth registration and certification process if the mother
and the NH both signed an affidavit of paternity. See Ark. Code Ann. § 20-18-401(f)(2). As explained above, the same information collected
by the State’s vital statistics office for the State-issued birth certificate, which
would include the name of any father, is also transmitted to SSA as part of the EAB
process. See POMS RM 10205.001B, RM 10205.005B, RM 10205.505.
In summary, Arkansas has required a father’s written consent to be named as a non-marital
child’s father during the birth registration and certification process since 1981.
Because the NH is named as the father on the Claimant’s EAB Numident record established
at the time of her birth in accordance with Arkansas law on birth registration and
certification, the agency may presume that the NH completed a written acknowledgment
of paternity to be identified as the child’s father as required by Arkansas law. See
Ark. Code Ann. § 20-18-401(f)(2). Therefore, we believe there is legal support for
the agency to deem the Claimant to be the NH’s child pursuant to section 216(h)(3)(C)(i)(I)
of the Act. See POMS GN 00306.105C.3, GN 00306.120.
4. The Effective Date of the Parent-Child Relationship for Section 216(h)(3) based
on a Written Acknowledgment
Finally, if a parent-child relationship is established between the NH and the Claimant,
you asked for the effective date of such parent-child relationship. The POMS instruct
that the parent-child relationship based on a written acknowledgment for section 216(h)(3)
purposes begins on the date of the written acknowledgment unless the evidence points
to an earlier date. POMS GN 00306.105F. Similarly, the POMS instruct that the parent-child relationship based on a court
order for section 216(h)(3) purposes begins on the date of the court order, unless
the evidence points to an earlier date. POMS GN 00306.110F.
Here, we do not have the underlying written acknowledgment. Per POMS GN 00306.105C.3, the agency presumes the NH provided a written acknowledgment that the Claimant was
his child at the time of the Claimant’s birth because the NH was named as the Claimant’s
father as part of the Arkansas birth registration and certification and EAB Numident
process. Thus, we believe it would be reasonable for the agency to find that the effective
date of the parent-child relationship is her date of birth, February XX, 1989. See POMS GN 00306.105F.