SSR 84-3: SECTIONS 202(d)(1) AND 216(h)(2)(A) (42 U.S.C. 402(d)(1) AND 416(h)(2)(A)) RELATIONSHIP -- DISAVOWAL OF PATERNITY OF CHILD PREVIOUSLY LEGITIMATED UNDER STATE LAW

20 CFR 404.354(b)

SSR 84-3

C was born out of wedlock in Georgia on January 22, 1970. Her birth certificate, which was filed in February 1970, was signed by the worker as informant and indicated that he was her father. C's mother and the worker were married in Georgia in November 1971 and were divorced in March 1975. When an application was filed on C;s behalf in December 1980 for child's insurance benefits on the worker's earnings record, the worker stated that C was not his child. Under Georgia law, a child is legitimated if the child's mother and reputed father intermarry and the father recognizes the child. Held, C was the worker's legitimated child under Georgia law because her mother and the worker had intermarried and the worker had recognized C when he signed her birth certificate. Further held, the worker's subsequent denial of paternity was not legally sufficient to revoke his prior legitimating acts of intermarriage and recognition.

A question has been raised regarding the legitimation of C. While it appears that the worker's actions were sufficient to legitimate the child under Georgia law, he subsequently maintained, and submitted evidence to support his contention, that he was not the biological father.

C was born January 22, 1970. Her birth certificate was signed by the worker as informant and indicated that he was her father. The birth certificate was apparently filed February 5, 1970, and there was no indication on its face that it had either been amended or corrected.

The worker and C's mother were ceremonially married in Georgia on November 1, 1971. When the worker filed for a divorce, his complaint indicated "that there are no minor children born as issue of this marriage." In her answer, C's mother agreed with that part of the worker's complaint, but stated that the worker had adopted C. On March 4, 1975, a Final Judgment and Decree of Divorce was issued ending the marriage of the worker and C's mother. In the final decree, it was ordered that C's mother "shall relinquish and waive all claims and all rights she has or may have had against the plaintiff for support and maintenance of the minor child. . . ."

The worker applied for old-age insurance benefits on August 11, 1980. On his application, he stated that he had no children. After he was found to be entitled, an application for child's insurance benefits, dated December 2, 1980, was filled on C's behalf on the worker's earnings record. In a statement dated January 22, 1981, the worker denied that he was C's father, stating that he had not met C's mother until 1971, after his first wife had died. The worker's allegation was corroborated by his brother. C's mother gave a statement, dated January 21, 1981, certifying that she met the worker before Christmas of 1968 and saw him regularly until his wife died in 1971. Thereafter, they saw each other openly and were married in November of that year.

Although the evidence indicated that C was not adopted by the worker, it appears that she was legitimated by the marriage of the worker to her mother. Ga. code Ann. § 19-7-20 (1982) provides that "The marriage of the mother and reputed father of an illegitimate child and the recognition by the father of the child as his shall render the child legitimate; in such case the child shall immediately take the surname of his father." The law does not state that the father must be shown to be the biological parent; it merely specifies that the "reputed father" must recognize paternity.

In this claim, the worker and C's mother were married approximately 22 months after C's birth. C's birth certificate indicated that the worker was her father. He signed his name where "Informant's signature" was indicated and his relationship to the child was again stated as "father." Thus, the marriage of C's mother to the worker and his recognition of C on her birth certificate as his child fully legitimated C under Georgia law. It is noted that case law has determined that a father may legitimate a child even though the father was married to a woman other than the child's mother at the time of conception. In re, Pickett, 131 Ga. App. 159, 205 S.E. 2d 522 (1974).

The worker subsequently denied his earlier recognition of paternity and sought to revoke the legitimating act. Although no Georgia cases on this point were found, it is generally recognized that once the alleged father has recognized and acknowledged an illegitimate child as his own in accordance with the statutory requirements, such recognition and acknowledgment may not thereafter be revoked by any subsequent act or denial by the parent. 10 Am. Jur. 2d, Bastards § 57; 33 A.L.R. 2d, 714 § 3. Georgia law provides for termination of the parent-child relationship by court order for the protection of the child and by the parent's consent to adoption. There is no indication that the State of Georgia would recognize a denial of paternity as legally sufficient to revoke the father's earlier legitimating acts of intermarriage and recognition.

The divorce action between C's mother and the worker did not adversely affect the child's status. In the Final Judgment and Decree, C's mother relinquished and waived all claims and all rights she had or might have had against the worker for C's support and maintenance. Inheritance rights, however, were not the issue. The final decree did not indicate that the status of C had been determined, merely that support rights were waived. Waiver is defined as the voluntary and intentional relinquishment of a known right, claim, or privilege. Black's Law Dictionary 1417 (5th ed. 1979). Waiver and relinquishment of support rights cannot be construed as bastardizing the child.

Thus C was legitimized by the intermarriage of her mother and reputed father and recognition of paternity pursuant to Ga. Code Ann. § 19-7-20 (1982). The worker's subsequent denial of paternity was not legally sufficient to revoke the legitimating act.