20 CFR 404.1109

SSR 66-11

Where the worker became reconciled with his wife and resumed living with her after a prolonged estrangement during which the wife had given birth to a child whose father was established as being someone other than the worker; and where the worker received the child into his home, and supported the child until he died domiciled in California, held, the child does not qualify as the child of the worker for purposes of becoming entitled to child's insurance benefits.

In 1940, R, the worker, went through a marriage ceremony with M, who was then age 21. They separated in 1946, and M entered into an extramarital relationship with F. She lived with F in various States for about 7 years and from this relationship a daughter, C, was born in 1950. During the period M and F lived together, she did not see or communicate with R. F publicly acknowledged C as his child and was named as her father on her birth certificate. In 9154, M left F, taking C with her, and resumed living with R. M, R, and C lived together in California until R's death in 1964. R had taken no action toward adopting C. However, he had received her into his home, provided her full support form 1954 until his death, and had treated her in all respects as if she were his own child.

M applied for child's insurance benefits on behalf of C and for mother's insurance benefits on her own behalf. Entitlement to both types of benefits depended upon whether C qualifies as R's child for social security purposes since all other requirements for entitlement were met.

Under subsection 202(d) of the Social Security Act, as pertinent her, child's insurance benefits are payable to a dependent child of an insured individual. Subsection 216(e) provides, in pertinent part, that the term "child" means (1) the child or legally adopted child of an individual, and (2) a stepchild of an individual who has been such stepchild for not less than one year immediately preceding the day on which such individual died.

Section 216(h)(2)(A) provides that in determining whether a claimant is the child of an insured individual the law applied in determining the devolution of intestate personal property by the courts of the State in which the insured individual was domiciled at the time of his death shall be applied. R died domiciled in California. Under California law, a child born in wedlock is presumed to be a legitimate child of its mother's legal husband. Civil Code Section 193. However, this presumption may be rebutted by facts showing that the mother's legal husband had no access to her during the possible period of the child's conception. Since California does not follow the Lord Mansfield Rule, the mother is competent to testify as to these facts; indeed, the mother, her husband, or the descendant of one or both of them, must so testify before the presumption of legitimacy may be rebutted. Civil Code Section 195. In this case, that presumption was effectively rebutted by evidence supplied by M that F, and not R, was C's natural father.

Since C is not the natural child of R, he could not qualify as R's child under California law for the purpose of inheriting R's intestate personal property. Since C was also not adopted by R at any time, he cannot be considered to be R's child under clause (1) of section 216(e) of the Act. M contended, however, that C should be considered entitled to child's insurance benefits as R's stepchild within the meaning of clause (2) of section 216(e) of the Act.

The Social Security Act does not define the term "stepchild." However, the normal meaning of such term does not contemplate a relationship created between the child of a mother and her husband if such child is conceived subsequent to their marriage. Rather, a child is the stepchild of a worker only if such worker contracted a valid marriage with the child's mother while the relationship of parent and child exited between the mother and child. In this instance, the marriage between M and R occurred 10 years before C was born. Consequently, the relationship of parent and child between M and C could not have existed at that time. R and C were merely in a foster relationship to each other and there is no basis under the Act to equate a foster relationship with a steprelationship.

Accordingly, it is held that C is not the child or stepchild of R within the meaning of the Social Security Act and, therefore, is not entitled to child's insurance benefits. It is further held that M does not qualify for mother's insurance benefits as she does not have in her care a child of the worker entitled to child's insurance benefits, and is not entitled to widow's insurance benefits since she is not yet age 60.

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