PR 00905: General
TN 22 (08-18)
A. CPM 18-053 Relationship of a Stepchild to the Deceased Number Holder (NH) Based on a Common Law Marriage in Colorado.
Effective: February 14, 2018
1. Syllabus
Under Colorado’s intestacy laws, a parent-child relationship can be established by a presumption of parentage under the Colorado Uniform Parentage Act (UPA). Presumptive parenthood applies equally to men and women, and can be established by a person with no biological connection to the child. In the context of a same-sex relationship, a child can have a biological mother (or father) and a presumptive mother (or father). The UPA extends to all parent-child relationships, regardless of the parents’ marital status. A person can establish themselves as a presumed parent by receiving the child into their home and holding the child out as their natural child.
In this case, the child was conceived and born to the NH after the purported common law marriage began, thus precluding the child from being considered the NH’s stepchild even if a common law marriage exists. There is sufficient evidence, however, to establish inheritance rights under Colorado law. The NH is the child’s presumed parent because he received her into his home from her birth and openly held her out as his natural child.
2. Opinion
QUESTION
You asked whether a parent-child relationship exists between the NH and the Claimant, L~, for purposes of determining the Claimant’s entitlement to child’s insurance benefits on the NH’s record. The Claimant is the biological daughter of L2~ (L2~), the NH’s longtime partner.
SHORT ANSWER
Yes. Under Colorado law, the NH is the Claimant’s presumed parent because he received the Claimant into his home from birth, provided her sole financial support, and participated in her upbringing. This evidence is sufficient to establish a parent-child relationship under Colorado law. Accordingly, the Claimant has established a child-parent relationship under the Social Security Act (Act) and the agency can deem the Claimant dependent on the NH. Thus, the agency can find the Claimant is entitled to child’s benefits on the NH’s record.
BACKGROUND
According to the information you provided, the NH and L2~ lived together and presented themselves as a married couple from 19921 until the NH’s death in November 2010. See Addendum, Statement of Marital Relationship, p. 1; Death Certificate, p. 21.2 Witnesses provided statements indicating that the NH and L2~ lived together continuously during that time and referred to each other as “husband.” See Addendum, Statement of M~, p. 5-6; Statement of P~, p. 7-8; Statement of C~, p. 9-11. They owned property together, and the NH named L2~ as the beneficiary of his retirement benefits. See Deed, p. 3-4, PERA Statement, p. 5-8.
The Claimant, L2~’s biological daughter, was born in October 1999. See Application for Child’s Survivor Benefits; Remarks, p.1. L2~ reported that he was never married to L~’s biological mother, and the mother never provided for L~’s financial support. The Claimant lived with the NH and L2~ from birth, and the NH provided her sole financial support, claiming her as a dependent on his taxes. See Remarks, p.1; Tax Return, p. 15-19; Statement of C~, p. 11. Witness statements indicated that the Claimant was considered the NH and L2~s daughter. See Addendum, Statement of P~, p. 7; Statement of C~, p. 9-12. The NH’s mother, C~, provided an additional statement which detailed his relationship with the Claimant, noting that the NH and L2~ longed for a child before the Claimant was born, the Claimant called the NH “Dada,” the NH provided the primary financial support for the Claimant, the NH and L2~ carefully chose which school the Claimant attended, and they took the Claimant on many vacations and involved her in several activities. See Addendum, Statement of C~, p. 11-12. In addition, NH’s obituary listed L2~ as his surviving “longtime partner” and the Claimant as his daughter. See Obituary, p. 20.
DISCUSSION
a. Federal Law
An individual may be eligible for child survivor’s insurance benefits if: (1) he or she is the “child” of the insured, as defined in section 216(e) of the Social Security Act; and (2) he or she was “dependent upon” the insured at the time of his death. Act § 202(d)(1), 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350. The term “child” includes: (1) a child or legally adopted child of an individual; (2) a stepchild; and (3) a grandchild or step-grandchild in certain circumstances. 42 U.S.C. § 416(e).
To determine whether a claimant qualifies as the child of an insured individual, the Commissioner applies the law governing intestate succession of the state in which the insured individual is domiciled at the time of the application. 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1); see also POMS GN 00306.001(C). If a claimant qualifies as a child of the insured individual under the foregoing analysis, the claimant is deemed dependent on the insured individual. 20 C.F.R. § 404.361(a).
Initially, although the OGC Request for Legal Opinion asked whether the Claimant was entitled to benefits as the stepchild of the NH (based on a common law marriage), we have determined that under the above facts, the Claimant cannot be considered NH’s stepchild even if a common law marriage exists. Specifically, POMS GN 00306.230(A)(1) provides that “[a] child conceived and born to one of the parties after the marriage, or adopted by one of the parties after the marriage, is not the stepchild of the other party.”3 Here, the Claimant was conceived and born to L2~ after the purported common law marriage began—thus precluding the Claimant from being considered the NH’s stepchild. Therefore, we will only analyze whether the Claimant is the NH’s child under Colorado intestacy law.
b. Colorado Law Regarding Parentage4
Under Colorado’s intestacy laws, a parent-child relationship can be established by a presumption of parentage under the Colorado Uniform Parentage Act. See C.R.S. § 15-11-115(5). Further, under the Colorado Uniform Parentage Act, a man is presumed to be the natural father of a child if “he receives the child into his home and openly holds out the child as his natural child.” C.R.S. § 19-4-105(1)(d).
The Colorado Court of Appeals has held that under the above provisions, an individual need not be a biological parent in order to be a presumed parent. See In re Parental Reponsibilities of A.D., 240 P.3d 448, 491 (Colo. App. 2010). Further, in the context of a same-sex relationship, a child can have a biological mother (or father) and a presumptive mother (or father). See In re Parental Responsibilities of A.R.L., 318 P.3d 581 (Colo. App. 2013). In A.R.L., a woman petitioned the Court to establish a parent-child relationship with the biological child of her former same-sex partner. Id. at 583-84. The Court recognized that the Uniform Parentage Act extended to all parent-child relationships, regardless of the parents’ marital status, and went on to note that a person could establish themselves as a presumed parent by receiving the child into their home and holding the child out as their natural child. Id. at 584 (citing C.R.S. § 19-4-104). The Court made clear that presumptive parenthood applies equally to men and women, and can be established by a person with no biological connection to the child. Id. at 584-85.
The Court rejected the argument that the biological father must be considered the child’s parent, such that allowing the partner to establish parentage would create three legal parents. Id. at 585. The Court observed that biology is merely one of many rebuttable presumptions of parentage. And when confronted with competing presumptions, the court determines parentage based on the weightier considerations of policy, logic, and the child’s best interests. Id. at 585-86; see also C.R.S. § 19-4-1-5(2)(a).
c. The NH’s Status as the Claimant’s Parent Under Colorado Law
Based on the evidence that you have provided, the NH could establish presumptive parenthood under C.R.S. § 19-4-105(1)(d) and the holding in A.R.L.. He received the Claimant into his home from birth and openly held her out to be his natural child. See C.R.S. § 19-4-105(1)(d); Addendum, Statement of C~, p. 11-12; Obituary, p. 20. Witness statements indicate that the NH and L2~ longed for a child before the Claimant was born. In addition, the NH provided her financial support, materially participated in her upbringing by choosing her school and activities, and resided with the Claimant and L2~ in the same household as a family. This evidence is sufficient to establish that the NH received the Claimant into his home and openly held her out as his natural child. See C.R.S. § 19-4-105(1)(d); A.R.L., 318 P.3d at 586 n.4 (“A presumed parent is someone who demonstrates an enduring commitment to a child and can present evidence of a familial relationship with a child.”).
Although we have little information regarding the claimant’s birth mother, it seems unlikely that her competing presumption of parentage would outweigh the NH’s.5 L2~ stated that he was never married to the birth mother, and she did not provide any financial support to the Claimant. See Application for Child’s Survivor Benefits; Remarks, p.1. In contrast, the NH provided her sole financial support, lived in her household, and by all accounts had a loving and nurturing relationship and acted as a parent from L~’s birth until his death. In light of this evidence, the Court would likely find that the NH was the Claimant’s parent. See A.R.L., 318 P.3d at 586-87; C.R.S. § 19-4-105(b)(a).6
Conclusion
The evidence is sufficient to find the Claimant entitled to surviving child benefits on the record of the NH. Although the Claimant would not be considered NH’s stepchild under POMS GN 00306.230(A)(1), there is sufficient evidence to establish inheritance rights under Colorado law. The NH is L~’s presumed parent under C.R.S. § 19-4-105 because he received the Claimant into his home from her birth and openly held her out as his natural child. Accordingly, the Claimant has established a child-parent relationship under the Act and the agency can deem the Claimant dependent on the NH. Thus, the agency can find the Claimant is entitled to child’s benefits on the deceased NH’s record.
Footnotes:
. In an initial statement, L2~ reported that he and the NH lived in a common law relationship from 1998 to 2010. See Remarks, p.1. However, in follow-up documentation, he and his witnesses stated that they lived as a married couple from 1992 to 2010. See Addendum, Statement of Marital Relationship, p.1; Statement of P~, p.7; Statement of C~, p. 9-10. This discrepancy is not relevant to the analysis below.
. Citations in this memorandum are to the original “Harner Documentation” provided with the OGC Request for Legal Opinion on February 20, 2015, as well as follow-up documentation provided by the claimant in February 2016. Where the follow-up documentation is referenced, “Addendum” is noted in the citation.
. In light of POMS GN 00306.230(A)(1), we will not analyze the validity of L2~ and the NH’s alleged common law marriage for purposes of this opinion.
. Pursuant to 20 C.F.R. § 356(b)(4), this analysis is based on current law.
. If the Claimant was born to a gestational carrier, there would be no competing presumption of parentage. See C.R.S. § 15-11-121 (“Gestational carrier” means a woman who is not an intended parent who gives birth to a child under a gestational agreement. The term is not limited to a woman who is the child’s genetic mother.); C.R.S. § 19-4-106(2) (donor is not a parent of a child conceived by assisted reproduction).
. If, however, there is any reason to believe that the birth mother played a significant role in the Claimant’s upbringing, further development would be warranted.