SSR 67-59: SECTIONS 202(d)(1) and 216(h)(3)(C). -- CHILD'S INSURANCE BENEFITS -- STATUS OF ILLEGITIMATE CHILD UNDER 1965 AMENDMENTS -- "COURT ORDER TO CONTRIBUTE"

SSR 67-59

Where a fully insured worker, the natural father of several illegitimate children died domiciled in Maryland in 1964 without having taken any action to legitimate these children in accordance with State law, but in a bastardy proceeding the worker had consented to issuance of an order directing him to make payments pursuant to his written agreement to support the children, and such order was issued, held, such order, without regard to whether it contains a specific statement of paternity, constitutes a court order "to contribute to the support of the applicant because the applicant was his son or daughter," within the meaning of section 216(h)(3)(C) of the Social Security Act. Thus, each child is deemed to be the worker's "child" and, other requirements having been met, is entitled to child's insurance benefits.

In March 1958, R, the worker, executed agreements to pay $7 per week for the support of each of five illegitimate children until each child reached age 16. At the same time R gave written consents to the issuance of orders by the Criminal Court of X City directing him to make payments pursuant to those agreements. While the court issued such orders in a bastardy proceeding, the orders contained no specific statement that R was the father of each child. The Maryland birth certificates of each child showed R to be the father and there is no contradictory evidence of paternity. R died in August 1964, fully insured, and domiciled in the State of Maryland. On March 2, 1966, W, mother of the children, filed application for child's insurance benefits on their behalf based upon R's earnings record and stated that R was the father of each child. All the children were under age 18.

The court orders were issued under former Article 12, Annotated Code of Maryland, 1957, section 9 (subsequently repealed in 1963; the subject matter, as revised, is presently in Article 16, Annotated Code of Maryland, section 66A-66P, "Paternity Proceeding"). That statute provided, in pertinent part:

Whenever a person accused of bastardy, after proceedings before a justice of the peace or a State's attorney, shall consent thereto in writing, or whenever upon failure to give such consent such person shall be found guilty, the court shall issue an order directing such person:

(1) to pay for the maintenance and support of said child to the mother, or to the person having said child in custody, or to the county or to the City of Baltimore, as the case may be, if said child be a public charge, until said child reaches the age of eighteen years, or during the life of such child if it should die before reaching the age of eighteen years, such sum as may be agreed upon, if consent proceedings be had, or in the absence of agreement, such sum as the court may fix, with due regard to the circumstances of the accused person. * * *

Section 202(d)(1) of the Social Security Act provides in pertinent part that every "child" (as defined in section 216(e) of the Act) of a fully or currently insured deceased worker is entitled to a child's insurance benefit if he: (1) files application; and (2) at the time he files application is unmarried and is either under age 18 or is a full-time student and has not attained age 22, or is under a disability which began before age 18; and (3) was dependent upon the worker at the time the worker died.

Section 216(e), in pertinent part, defines the term "child" as the worker's child, legally adopted child, or under certain conditions, a stepchild. Section 216(h)(2)(A) provides that in determining whether an applicant is the child of a deceased insured worker, the Secretary of Health, Education, and Welfare shall apply such law as would be applied in determining the devolution of intestate personal property by the courts in the State in which the worker was domiciled at the time of his death. An applicant who according to such law would have the same status relative to taking intestate personal property as a child shall be deemed such. Under section 216(h)(2)(B), a child who does not qualify under section 216(h)(2)(A) may nevertheless be deemed to be the worker's child where the mother and the worker went through a marriage ceremony resulting in a purported marriage between them which, but for a kind of legal defect described in the statute, would have been a valid marriage.

Since R did not marry the children's mother, they could not have the status of R's children for inheritance purposes under the law of Maryland at the time of his death. Thus, they cannot be deemed R's children under section 216(h)(2)(A) of the Act. Similarly, since the parents did not go through a marriage ceremony, the children cannot be deemed R's children under section 216(h)(2)(B) of the Act.

However, section 339(a) of the Social Security Amendments of 1965 (P.L. 89-97, enacted July 30, 1965) added section 216(h)(3) of the Act, effective for benefits beginning no earlier than September 1965, which provides that a child who does not qualify as the worker's child under section 216(h)(2)(A) or (B) may nevertheless become entitled to child's insurance benefits if he meets certain requirements. As pertinent here, these requirements are:

(3) An applicant who is the son or daughter of a fully or currently insured individual, but who is not (and is not deemed to be) the child of such insured individual under paragraph (2) [section 216(h)(2)], shall nevertheless be deemed to be the child of such insured individual if:

* * * * *

(C) in the case of a deceased individual --

(i) such insured individual --

* * * * *

(III) had been ordered by a court to contribute to the support of the applicant because the applicant was his son or daughter, and such * * * court decree, or court order was made before the death of such insured individual * * *

The evidence indicates that R was the children's father. The remaining question thus presented is whether the order issued by the Criminal Court of X City constitutes a court order within the meaning of section 216(h)(3)(C)(i)(III), quoted above, so as to entitle the children to child's insurance benefits on R's earnings record.

The Court of Appeals of Maryland has stated:

While the bastardy law is punitive in its nature, one of the main objects it has in view is to require the father of the illegitimate child to give security to its mother or custodian for its maintenance and support, and to indemnify the public against such an obligation. State v. Hardesty, 103 Atl. 461, 462 (Md. 1918).

Since the prime purpose of a bastardy proceeding under Maryland law is to fix an individual's liability for the support of his illegitimate child, the orders issued by the court in this case were by their very nature court orders directing R "to contribute to the support of the applicant because the applicant was his son or daughter," within the meaning of section 216(h)(3)(C)(i)(III) of the Act, notwithstanding the fact that no specific statement of paternity appeared in the orders.

It is held, therefore, that each child is deemed to be R's "child" for purposes of entitlement to child's insurance benefits under section 202(d)(1) of the Act, and, all other statutory requirements having been met, R's children are entitled to child's insurance benefits beginning September 1965.