20 CFR 404.1101(d)(3)(i)

SSR 69-56

Where in a judgment relieving the worker of his obligation to support his illegitimate child because of terminal illness and consequent inability to work, the court twice referred to the child as "his child," held, the judgment may be considered a court decree that the worker is the father of the child and thus meets the requirement of section 216(h)(3)(C)(i)(II) of the Social Security Act. Accordingly, the child may be deemed the child of the worker for purposes of child's insurance benefits.

R, a fully insured worker, died in August 1966. Shortly thereafter, W, the mother of C, filed an application on behalf of C for child's insurance benefits alleging that C is the natural child of R. The mother stated that she was never married to R, that R had never acknowledged paternity of C in writing, that he had never lived with C, and that his only contribution toward C's support was food and milk for several months in 1962. In support of her application, however, W submitted a copy of a court judgment which indicated that R was not required to support "his child" because of terminal illness which made him unable to work and support "his child."

Section 216(e) of the Social Security Act, 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 shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of 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 of the worker shall be deemed such. Under section 216(h)(2)(B), a child who does not qualify under the provision above 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 section 216(h)(1)(B) of the statute, would have been a valid marriage. A child who does not meet the requirements of section 216(h)(2)(A) or (B), may qualify under section 216(h)(3) if he meets certain other requirements.

As applicable here, section 216(h)(3) of the Act provides:
(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 --

* * * * *

(II) had been decreed by a court to be the father of the applicant, or
(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, . . . .

Since there is no evidence in this case that C was ever legitimated in accordance with State law, nor under State law acquired the status of R's child for inheritance purposes, C cannot be deemed R's child under section 216(h)(2)(A) of the Act. Moreover, since C's parents failed to go through a marriage ceremony, he cannot be deemed R's child under section 216(h)(2)(B) of the Act.

The question, therefore, is whether C, who meets all other requirements for entitlement to child's benefits, is R's child within the meaning of section 216(h)(3)(C) of the Act.

The evidence showed that prior to his death R had been charged with "nonsupport of minor child [C]" and that in October 1965 the following judgment had been issued:

After hearing all the evidence adduced in this case, the Court finds:
That the defendant is in a terminal illness, unable to work, and, therefore, unable to support his child.
IT IS, THEREFORE, ordered, adjudged and decreed that the defendant is unable physically or otherwise to support his child, and this cause of action should be dismissed. . . . (Emphasis supplied.)
Done and ordered on this . . . day of October, 1965.

It is obvious this is not a court order to contribute to the support of C as no such obligation was imposed. (See SSR 67-59, C.B. 1967, p. 73, in which there was a court order to contribute.) The judgment may, however, be considered a court decree that R is C's father since it twice refers to C as "his child." Thus C meets the requirements of section 216(h)(3)(C)(i)(II) of the Act.

Accordingly, it is held that C has the status of R's child within the meaning of section 216(h)(3)(C)(i)(II) of the Act, and thus may qualify for child's insurance benefits on R's earnings record, having met all other entitlement requirements.

Back to Table of Contents