SECTIONS 202(d) (1) and (3) and 216(h) (3) (C) (42 U.S.C. 402(d) (1) and (3) and 416(h) (3) (C))- CHILD'S INSURANCE BENEFITS-DEFINITION OF CHILD-ACKNOWLEDGEMENT IN WRITING 20 CFR 404.1101(e) (3) SSR 79-22 Before his death, the wage earner completed two application forms for a Veterans Administration (VA) disability compensation. One form was filed with the VA. Both forms were signed and both listed the claimant, by name and date of birth, as a child of the wage earner. Under section 216(h) (3) (C) of the Social Security Act, a child born out of wedlock shall be considered the son or daughter of a deceased wage earner if the wage earner before his death acknowledged in writing that the child was his. There is no requirement that the writing be validated or filed with an agency. Held, the application forms constitute an acknowledgement in writing by the wage earner that the claimant is his child. The general issue is whether the claimant is entitled to child's insurance benefits under section 202(d) of the Social Security Act. The specific issue is whether the child was the "child" of the deceased wage earner as defined in section 216(h) (3) (C) of the Social Security Act. Section 216(h) (3) (C) of the Social Security Act (the Act) provides that an applicant who is the son or daughter of a fully or currently insured individual but does not qualify as a child under State law shall, nevertheless, be considered the child of such insured individual if, in the case of a deceased individual: A. Such insured individual before his death: 1. Had acknowledged in writing that the applicant is his 2. Had been decreed by a court to be the father of the ap- 3. Had been ordered by a court to contribute to the sup- B. Such insured individual is shown by evidence satisfactory The undisputed facts in this case support the conclusion that the provisions of part A above have been met. The record contains two documents which are tantamount to acknowledgement by the decedent that the claimant, "C", is his daughter. The first document is a VA application for compensation, signed by the deceased and containing a statement that C is his child. Although this application was never actually submitted to the VA for processing, it nevertheless constitutes an acknowledgement signed by the wage earner. The fact that this document was never filed or the fact that it was never sworn to before a notary public is of no consequence. The statute merely calls for a written acknowledgement. The application is a written acknowledgement and unless it can be proven to be something other than the wage earner's written acknowledgement, it will comply with the law. It should be noted that the authenticity of the wage earner's signature on this application was never disputed. In fact, the decedent's estranged wife testified that in her opinion it was, in fact, his signature. As previously stated, the Act only requires an acknowledgement in writing it does not require any validation by an agency or any filing of any sort. Short of proof of forgery, this document constitutes the necesary acknowledgement in writing to meet the requirements of the Act. The second document was obtained upon further investigation with the VA. It is an application received by that agency in September of 1974, one month before the wage earner's death. It reveals that three children were listed thereon, the third of whom was C, "child by paramour." This application was signed by the deceased and dated September 11, 1974. The validity of this document has been questioned by the estranged wife commencing with the signature which she says is a "peculiar signature (which) has no similarity to the writing on the rest of the form." Admittedly, the signature does not resemble any other signature of the wage earner in the record and especially not the signature of the earlier VA application (which was never submitted to the VA). It should be noted that the signature was written only one month before the decedent's death, and he had at that time been ill with cancer since at least the early part of the year. A weak scrawl such as shown on this document could easily be the result of his lingering illness and the fact that he was almost at the point of death. Therefore, there being no evidence on the record to the contrary (but mere conjecture) the signature is accepted as genuine. The point was also raised that there was no evidence as to when the bulk of the form was filled out, and no evidence that the person who signed it knew what the rest of the form stated or had ever read it or had signed it after the rest of the form was filled out. "At the time," it was argued, the wage earner "was close to death, was confused and had cerebral metastatic disease. It is doubtful he knew what he was doing and eventually lapsed into a coma." In response, it must be acknowledged that the form was obviously not completed by the deceased if his signature is taken, as it must be, as an indication of his writing ability at that time. However, it is not uncommon for another person (such as a clerk) to write on an application the answers as supplied by the person who will sign the application. And in this case, where the wage earner was no doubt very ill, it could be expected that someone else would write down the answers as he gave them. However, this in no way proves that he did not or could not furnish the information; that he did not see the answers which were put down; or that he signed a blank application and was never aware of what answers were placed on the application later. Even the fact that the birthdates for the other two children are incorrect while the birthdate of C is correct falls short of establishing that this is not a valid document. Many times male claimants, while remembering exactly the date of entering military service and date of discharge, have trouble remembering other pertinent dates including the date of marriage and the birthdates of their children and their wives and even sometimes their own birthdates. Therefore, the mention of incorrect birthdates should not be a controlling factor in deciding whether this document is valid. (Further, it should be noted that the second application was received by the VA before the wage earner's death. This is not decisive, however, for the law does not require that the written acknowledgement be in the form of a document submitted to a government agency or any other party.) Thus no sufficient basis was discovered for deciding that either application for VA benefits should not be accepted as credible evidence of an acknowledgement, in writing, by the wage earner, that C was his daughter. The burden of offering proof to discredit these documents falls on the estranged wife and she has failed to meet this burden. In conclusion, neither the Act nor the Regulations (20 C.F.R. 404.1101(e) (3)) requires that the acknowledgement be executed in any special way. Any statement written by the wage earner, or at his direction, which acknowledges (as do the documents in this case) the claimant as the wager earner's son or daughter is sufficient acknowledgement in writing to satisfy the statutory requirement. See Social Security Ruling 1977-23 (at page 18). See also Social Security Ruling 1966-47(14) where a document was produced from the Department of Public Welfare records which listed each of four children by name and showed each as a son or daughter of the decedent and showed the decedent as the father of each child. It was there held that since the document identified the four children by name, identified the decedent as the father of each child, and was signed by the decedent, it constituted an "acknowledgement in writing" within the meaning of section 216(h) (3) (C). SECTION 202(d) and 216(e) (42 U.S.C. 402(d) and 416(e))- CHILD'S INSURANCE BENEFITS LEGITIMACY-PRESUMPTIONS PROOF-MINNESOTA 20 CFR 404.320 and 404.1109 AND SSR 77-24 The courts of Minnesota recognize a strong presumption that a child born during wedlock is a legitimate child. However, this presumption may be rebutted by clear and satisfactory evidence that there was no sexual intercourse between the parties during the period in which conception took place. Evidence that the last sexual contact between the husband and wife was 328 days prior to the birth of the child would not, in and of itself, overcome the strong presumption of the legitimacy of a child born in wedlock. However, where the child weighed only 5 pounds 15 ounces at birth, the examining physician considered the pregnancy to be of 266 days duration, and military records, a divorce decree, and a support petition failed to list the child as a child of the insured individual. Held, the evidence is sufficient to overcome the presumption of legitimacy and support a finding that the insured individual is not the child's father. The deceased insured individual's widow has challenged the legitimacy of a child conceived and born during a former marriage of the insured individual. The child's mother and the insured individual were married on November 28, 1960, and divorced on June 30, 1969. Two daughters were born during the marriage. The child in question was born October 4, 1963, and her birth certificate shows the insured individual as father. The insured's military records show that he departed for Germany on November 11, 1962, which was 328 days prior to the child's birth, that he remained in Germany without returning or taking leave until November 1964. The mother of the child stated that she and the insured had been separated since March or April of 1962, but they had occasionally had sexual relations thereafter, including during a three-day visit in November 1962. Hospital records of an August 1963 obstetrical examination of the mother show that she was 7 months pregnant at the time; and birth records indicate that at the time of delivery, the mother was 38 weeks pregnant. The child weighed 5 pounds, 15 ounces at birth. Other evidence in the case includes military records showing a different child as the only dependent child of the insured individual. The 1969 divorce decree states that one child was born of the marriage. Furthermore, in March 1972, the children's mother filed a petition against the insured individual under the Uniform Support of Dependents Law and stated that the other child was the child born of the marriage. Under applicable Minnesota law there is a strong presumption that a child born to a married woman during wedlock is presumed to be the child of her then husband. A question is raised, however, as to whether this presumption is still applicable where the husband and wife were not living together and a child is born 328 days after the last possible sexual contact between the child's mother and the mother's husband. Under Minnesota law the presumption of the legitimacy of a child conceived during wedlock, while strong, is not conclusive, and may be rebutted by clear and satisfactory evidence that there was no sexual rela tionship between the parties during the period in which conception must have occurred. See Curry v. Felix, 149 N.W. 2d 92, 95 (Minn., 1967) citing Haugen v. Swanson, 16 N.W. 2d 900 (Minn., 1944). Minnesota courts have stated that the period of gestation may vary from case to case, and that there are exceptional cases of record of gestation periods of 325 days or longer. See State v. Domish, 191 N.W. 1002 (Minn. 1923). If the only evidence in this case was a gestation period of 328 days, the presumption of legitimacy would not be overcome. However, in this case, there is additional evidence to indicate that this was not a pregnancy of 11 months, i.e., the size of the child at birth and the medical reports at the time of delivery and 2 months before indicate that this was not a pregnancy of 11 months duration. Thus, it would be reasonable to conclude that conception of the child occurred at a point in time when sexual intercourse between the insured and the child's mother was not possible. The divorce decree, support petition, and military records also support a conclusion that the child was not fathered by the insured individual. SECTION 216(e) and 216(h) (2) (A) (42 U.S.C. 416(e) and 416(h) (2) (A) )— CHILD'S INSURANCE BENEFITS-DEFINITION OF CHILD-PRESUMPTION OF LEGITIMACY REBUTTED 20 CFR 404.354, 404.355, 404.357, 404.359, 404.708, and 404.731 SSR 80-27c B-B v. Califano, U.S.D.C. Middle District of Georgia, Civ. No. 78-209 (9/20/79) Where plaintiff was married to the deceased wage earner when her daughter, A, was born and substantial evidence supported administrative finding that A was neither the natural child nor the adopted child of the wage earner, question arose as to whether A quaified as the wage earner's stepchild for purposes of determining her entitlement to child's insurance benefits. Held, A is not the wage earner's stepchild because such a relationship could be established only if the wage earner had married A's mother after A was born. OWENS, District Judge: Plaintiff brought this action pursuant to § 205(g) of the Social Security Act, as amended and codified under 42 U.S.C.A. § 405(g), to obtain judicial review of a final decision of the Secretary of Health, Education, and Welfare denying her daughter's claim for surviving child's insurance benefits. On August 29, 1977, plaintiff filed an application for surviving child's insurance benefits on behalf of her son and her daughter (hereinafter referred to as A). The application for her daughter was denied initially, |