In your memorandum you inquired whether a New York birth certificate which had been
corrected to show that the insured was not the father of the claimant is sufficient
to rebut the presumption of legitimacy under Georgia law.
The record' indicates that the insured, William M. K~, filed for disability benefits
in 1978, at which time he indicated that he had no children other than William M.
Jr., and that he was married to Ida B. K~. The record indicates that the insured ceremonially
married Ida B. R~ W~ (Ida B. K~) in Daugherty County on November 7, 1966. The record
also indicates that the insured had been married to Ollie M. (Ollie M. K~) as well.
According to the information contained in the file, the insured ceremonially married
Ollie K~ in Daugherty County on September 25, 1960. According to the insured, Ollie
divorced him in 1960 in New York City. Contrary to the insured's assertion, Ollie
K~ alleges that she and the insured separated in 1963 but never divorced. A search
by the Administration of the five boroughs which make up New York City found no record
of divorce proceedings. There is no indication that the pertinent Georgia records
were ever searched.
The insured died on February 13, 1981, while domiciled in Georgia. On March 21, 1983,
Ollie M. K~ on behalf of Jacqueline M~ , filed for surviving child's benefits on the
insured's account alleging that the claimant was the natural daughter of the insured.
According to Ollie K~, Jacqueline was fathered by the insured in October 1964 while
she was visiting the South. In support of her assertion, Ollie submitted a birth certificate
dated June 28, 1965. The birth certificate showed Jacqueline's surname as being K~
. The year of birth had been changed from 1965 to 1962. The Administration rejected
the birth certificate because of the alteration. When the Administration searched
the birth records for an acceptable birth certificate, it was found that a corrected
birth certificate had been filed on January 26, 1972. The corrected birth certificate
indicated that Jacqueline had been born on June 23, 1965 and that her surname was
~ and her father's name was shown as Floyd M~ According to Ollie K~ , she never knew
the birth certificate had been corrected until the Administration brought it to her
attention. The record also shows that Ms. K~ bore a child for Mr. M~ on April 22,
1964. According to Ms. K~ she and Mr. M~ were never ceremonially married but merely
dated.
Before the question of whether the corrected birth certificate can be used to rebut
the presumption of legitimacy, it is first necessary to determine the marital status
of Ollie, Ida, and the insured. As the record indicates, K~ ceremonially married Ollie
in September 1960 and entered into a second marriage in November 1966 with Ida B.
K~, possibly without first obtaining a divorce. If it is determined that the insured
was not married to Ollie K~ during the time the child was born or conceived, then
the child claimant cannot avail herself of the presumption.
Under Georgia law, before a second marriage can be contracted, any previous marriage
must be dissolved and any dissolution of a previous marriage in divorce proceedings
must be affirmatively established and will not be presumed. Ga.Code Ann. §53-102.
Any previous undissolved marriage renders void an attempted second marriage. Lovette
v. Zeigler, 160 S.E.2d 360 (1968). Where a party to a marriage has been previously
married and the validity of the second marriage is challenged, the presumption is
that the second marriage is valid until evidence establishes that the other spouse
of the first marriage was living at the time of the second marriage and, if that is
established, the burden shifts to the party contending the validity of the second
marriage to show the first was dissolved by divorce or death. Hayes v. Schweiker,
575 F.Supp. 402 (1983); Johnson v. Johnson, 238 S.Eo2d 437 (1977). In the present
case, it is unclear whether a divorce between Ollie and the insured had been obtained.
As indicated by the records, all five boroughs which make up New York City were checked
for divorce proceedings but none were found. However, the Georgia records were never
searched. Before a marital status can be determined these records must be searched.
If the search is fruitless then the first wife, Ollie, must be considered to be the
wife of the insured, and, thus, the claimant can avail herself of the presumption
of legitimacy. However, if it is found that the insured and Ollie were divorced before
the claimant was conceived or born then the claimant cannot avail herself of the presumption
of legitimacy.
Under Georgia law, a presumption of legitimacy arises when a child is born during
wedlock. Ga.Code Ann. ~74-101. A child born in wedlock is presumed to be the legitimate
child of the husband. Ga.Code Ann. ~74-101, supra. Although this is one of the strongest
and most persuasive presumptions known to law, it is rebuttable. Parks v. State, 270
S.E.2d 271 (5th Cir. 1980). The presumption may be rebutted by direct or presumptive
evidence; however, the evidence must be clear and convincing. Harris v. Sheldon, 107
S.E. 842 (1921); English v. English, 168 S.E.2d 187 (5th Cir. 1969). That is, the
presumption may be overcome by evidence showing, inter alia, the habits of life and
relative situations of the parties, their conduct and declarations connected with
conduct such as birth certificates or impossibility of access. Gibbons v. Maryland
Casualty Company, 152 S.E.2d 815 (1966), reh. denied (1966), cert. denied (1966);
Parks v. State, supra. A birth certificate which was completed in accordance with
the statutory requirements is prima facie evidence of the facts stated therein; however,
they may be rebutted. Ga.Code Ann. ~88-1709, 88-1714. Posey v. State, 167 S.E.2d 340
(1933).
Thus, Georgia law would permit a birth certificate to be considered, together with
any other evidence, to rebut the presumption of legitimacy of a child born in wedlock.
The record indicates that the claimant's original birth certificate was amended to
show that Floyd M~ is the father and not William K~. New York law provides that with
respect to a child born out of wedlock to a married woman, a determination of parentage
must be made by a court of competent jurisdiction before the putative father's name
may be entered on the birth certificate. New York Public Health Law Section 4135,
McKinney (1967). Parentage must be proven by clear and convincing evidence. New York
[Family Court Act], Section 542, McKinney (1967). Van Alstyne, o/b/o P.V. David, Q92
A.D. 971, 460, N.Y.S.2d 848 (1983); Espin v. Pierce, 85 A.D.2d 503, 444, N.Y.S.2d
459. Additionally, the mother and alleged father must be parties to the litigation.
Section 4135, supra.
Although the records are sealed and Ms. K~'s prior statements and declarations are
unavailable for review, the fact that the amended birth certificate was issued indicates
that the claimant's paternity has been proven by clear and convincing evidence in
a court of competent jurisdiction. Based on the foregoing, it is our opinion that
the Georgia Courts would hold that the amended birth certificate is sufficient to
rebut the presumption of legitimacy. That is, the Georgia Court would hold that Floyd
M~ is the biological father of the claimant and not the deceased wage earner, William
K~. Finally, we are of the opinion that the court would give full faith and credit
to the amended birth certificate as prescribed by Ga.Code Ann. ~38-627.