20 CFR 404.1101
H married W in July 1952, separated from her shortly thereafter, and never again lived with her. They were never divorced. H died in June 1964, domiciled in Michigan. During the separation H resided in the same city as W, except for absences occasioned by his service in the Army, imprisonment, and confinement to a State hospital. W bore four children while married to H, the births occurring on March 10, 1958, May 28, 1959, April 13, 1963, and March 15, 1964. She stated that H was not the father of any of the children, alleging several other men as fathers. Nevertheless, she filed application for child's insurance benefits for all four of her children on H's social security earnings record.
A certification of the State prison records obtained by the Social Security Administration indicated that H was in prison on January 3, 1957, and was confined there continuously through September 30, 1958. During this period W never visited H, and H never left the prison.
In addition, a certification of the State hospital records indicated that H was admitted on December 12, 1960, and was discharged February 28, 1965. During this period he was permitted intermittent leaves of absence for one or two days at a time in custody of his mother or brothers. However, during the periods June 17, 1962, through August 16, 1962, and May 20, 1963, through July 19, 1963, H did not leave the hospital nor did he have any visitors.
The question to be resolved is whether W's children, who were conceived and born while W was married to H but while she was separated from him, and whose legitimacy she herself has questioned, may become entitled to child's insurance benefits on H's earnings record.
Under section 202(d)(1) of the Social Security Act, a claimant may become entitled to child's insurance benefits on the earnings record of a deceased insured worker, if (among other requirements not at issue here) he is the worker's "child" as defined in section 216(e) of the Act, i.e., if he is either the worker's child, legally adopted child, or stepchild. Section 216(h)(2)(A) of the Act provides, in pertinent part, 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 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 as a child of the worker for the purpose of sharing in his intestate personal property shall be deemed to be his child for social security purposes.
Thus, the children in this case would be considered H's children for purposes of entitlement to child's insurance benefits on his earnings record if, under the law of the State in which H was domiciled at death (Michigan), they would have the status of his children for purposes of inheriting intestate personal property from him. Since H was married to their mother, W, at the time they were conceived and born, the children would have such status if they were the legitimate issue of the marriage, i.e., if H were their natural father.
Under Michigan law, there is a strong presumption that a child conceived during wedlock is the child of his mother's husband and is, therefore, the legitimate issue of the marriage. People v. Case, 137 N.W. 55 (Mich., 1912). Moreover, under Michigan law, the Lord Mansfield Rule applies to bar evidence directly or indirectly representing statements of a husband or wife which tend to bastardize children born during their marriage. Thus, W's allegation that H was not the father of her children is not competent evidence with respect to the legitimacy of the children.
Under Michigan law, the presumption of legitimacy may be rebutted only by very convincing proof that, at the time when the child must have been conceived, either the husband was impotent or it was impossible for him to have had access to his wife. People v. Case, supra. Impotence or nonaccess must be shown almost to a certainty and must be shown by testimony or evidence other than that provided by the child's mother or her legal husband.
Michigan's courts take judicial notice of the fact that periods of human gestation are generally limited to a 300-day maximum and a 240-day minimum. People v. Case, supra. Thus, in the case of the two children born March 10, 1958, and May 28, 1959, the period of nonaccess between H and W to rebut the presumption of legitimacy must be established between the 300th day and the 240th day before the birth of each child. For the first child, this period (300th-240th day) is May 14, 1957, through July 13, 1957, and for the second child, the period is August 1, 1958, through September 30, 1958. The certification of State prison records established that H was confined continuously from January 3, 1957, through September 30, 1958, so that physical access to W would have been a virtual impossibility during the possible periods of conception.
As to the children born April 13, 1963, and March 15, 1964, the periods of nonaccess must be established between June 17, 1962 through August 16, 1962, and from May 20, 1963, through July 19, 1963. A certification from the State hospital records established that during these two critical periods H did not leave the hospital nor was he permitted to have visitors. Physical access to W was again a virtual impossibility during the possible periods of conception.
There was no evidence to indicate that any of W's children were born prematurely or late. It follows that the records of State hospital and the prison produced clear and convincing evidence that H had no access to his wife at any of the points of time here in issue. Since the evidence clearly establishes the nonaccess of H during the periods when each child must have been conceived, the presumption as to the children's legitimacy is rebutted.
Accordingly, it is held that the four children born to W during her marriage to H would not be entitled to share in H's estate under the laws of the State of Michigan; therefore, they cannot be deemed to be H's children under section 216(h)(2)(A) of the Act, and consequently they are not entitled to child's insurance benefits on his earnings record.
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