TN 29 (10-05)

Citations:

Social Security Act - Secs. 216(h)(3);

Regulations No. 4 - Secs. 404.355, 404.212 - 404.213

A. Policy - General

1. Relationship

Under section 216(h)(3) of the Social Security Act, the biological son or daughter of a NH may be deemed to be his/her child for benefit purposes regardless of the child's status under State law if the requirements in GN 00306.100B.1. or GN 00306.100B.2. are met. The child may qualify under this provision even if presumed to be the legitimate child of another person under State law.

CAUTION: When considering the status of an illegitimate child for purposes of entitlement to child's benefits, you may not disallow benefits until you have considered the child's status under applicable State intestacy law (GN 00306.050 - GN 00306.085; GN 00306.400 - GN 00306.680). It is not sufficient to disallow the child solely because he/she does not meet the provisions of section 216(h)(3). Many State intestacy laws have been liberalized in recent years.

NOTE: Section 216(h)(3) does not give the child's father or mother the status of parent.

REFERENCE: See GN 00306.001C.1.c. for policy on status of child conceived after the NH's death.

2. Dependency

Child is deemed dependent unless someone other than the NH has adopted the child (see GN 00306.165).

NOTE: A section 216(h)(3) child is technically deemed dependent under the Act. However, in order to be entitled under the “other evidence” provision of section 216(h)(3), a child must meet a “living with or contributions” requirement as part of the relationship requirement. See GN 00306.100B.2.

B. Policy - Current Law Requirements

A child qualifies under section 216(h)(3) in the first month in which the conditions in either GN 00306.100B.1. or GN 00306.100B.2. are met.

1. Court Action or Written Acknowledgment

The NH:

• Was decreed by a court to be the child's biological parent; or

• Was ordered by a court to contribute to the child's support because the child is his/her son or daughter; or

• Acknowledged in writing that the child is his/her son or daughter.

NOTE: The court action must have occurred before the NH's death.

2. Other Evidence

The NH:

• Is shown to be the child's biological parent by other satisfactory evidence; and

• Is living with the child or contributing to the child's support:

  • When the child's application is filed (in life cases), or

  • When the NH died (in survivor cases).

NOTE: The requirement in GN 00306.100B.2.b. is met for a posthumous child if the father was living with or contributing to the support of the child's mother when he died. Also, see GN 00306.280 and GN 00306.285 for acquiescence rulings that apply in determining contributions to support.

3. Throughout the Entire Month Provision

See RS 00203.010B. for a discussion of the first month of entitlement for the 216(h)(3) child of a living NH.

C. Policy - Prior Law

1. Benefits Before 5/83

The provisions in GN 00306.100B.1.a. and GN 00306.100B.2. applied only to the child's father, not the mother.

2. Months Before 6/74

In life cases, the court action, written acknowledgment, or living with or contributions requirement must have been met at certain points in time. See SSR 75-4c for a discussion of Jimenez v. Weinberger, the court case which declared these time restrictions unconstitutional. Submit questions involving these requirements to the Chief Counsel per GN 01010.815 ff.

NOTE: Some of the time requirements still appear in section 216(h)(3) of the Act; however, they are not operable.

D. Policy - Development Guidelines

1. Biological Relationship

Section 216(h)(3) requires that the child must be the NH's son or daughter. Therefore, even if one of the requirements in GN 00306.100B.1. is met, you must consider evidence that is submitted showing that the NH is not the child's biological parent. However, such evidence must be very persuasive in order to override a written acknowledgment or court action.

2. Effective Date of Relationship

a. General

The parent-child relationship does not begin until the date of the court action or written acknowledgment. Therefore, you may need to develop other evidence of paternity where retroactivity is at issue. See GN 00306.100D.2.c. to determine the effective date under the “other satisfactory evidence” provision.

EXAMPLE: If the NH acknowledged the child on an SSA-1 but there are retroactive benefits due the child, the acknowledgment on the SSA-1 will permit payment only from the month of filing. In order to pay the child for the retroactive period, you must establish that an earlier acknowledgment or court decree or order exists or that the other evidence of paternity conditions are met for the earlier period.

b. Use of SSA-2514 or Electronic Equivalent to Protect Date of Written Acknowledgment

When the NH's application (or his application on behalf of a child) constitutes written acknowledgment of a natural child for purposes of section 216(h)(3), Form SSA-2514 (Record of Claimant's Intent to File) (or its electronic equivalent) will protect the date of written acknowledgment if:

• The NH is shown as the person who contacted SSA;

• An intent to file for a child or children is shown (e.g., they are listed by name or BIC); and

• There is no question that the child(ren) for whom the application is filed are the same as the child(ren) referred to on the SSA-2514 or electronic equivalent.

c. Other Satisfactory Evidence of Paternity

When establishing paternity using the “other satisfactory evidence” provision of section 216(h)(3), the parent-child relationship can begin no earlier than the date of the evidence. The “living with” or contributions requirement must also be met. EXCEPTION: If a signed statement attesting to a person’s knowledge about a child’s paternity is being used as evidence, the date to which the statement points may be used as the effective date of the relationship.

E. Procedure

1. All Cases Involving Illegitimacy

When an applicant states that the child is illegitimate or other information indicates illegitimacy, obtain a full birth certificate (BC) (one with spaces for parents' names). If only a BC without spaces for parents' names is available (e.g., because the State does not issue full BC's), document this on the MCS RPOC screen or on an RC in non-MCS cases.

If you are developing written acknowledgment or court action, see GN 00306.100E.2. If you are developing under the "other satisfactory evidence" provision, see GN 00306.125. If you are developing the child’s relationship to the mother, see GN 00306.055B.

2. Written Acknowledgment or Court Action Requirement Met

If the requirements in GN 00306.100B.1. are met (written acknowledgment or court action), follow these procedures:

• If the full BC shows the NH as the child's parent or the space for the parent's name is blank, do not raise the issue of biological parentage unless information in the file casts some doubt on the issue or there is any other reason to doubt biological relationship. If a child was born but not listed on the NH's RIB or DIB application, and the NH subsequently acknowledges the child in writing, this constitutes doubt as to biological relationship, in the absence of a reasonable explanation for the delayed acknowledgment. Follow the guidelines in GN 00306.125 to develop biological relationship.

• If the BC shows someone other than the NH as the child's parent or if a BC without spaces for the parents' names is the only certificate that can be obtained, follow the guidelines in GN 00306.125 to develop biological relationship.

3. Developing Written Acknowledgment, Court Order, or Other Evidence

See GN 00306.105, GN 00306.120, and GN 00306.125.