B-165334, NOVEMBER 12, 1968, 48 COMP. GEN. 311

B-165334, NOVEMBER 12, 1968, 48 COMP. GEN. 311

QUARTERS ALLOWANCE - DEPENDENTS - CHILDREN - ILLEGITIMATE AN UNMARRIED OFFICER OF THE UNIFORMED SERVICES WHO ALTHOUGH ACKNOWLEDGING THE PATERNITY OF AN ILLEGITIMATE CHILD AND CONTRIBUTING TO THE SUPPORT OF THE CHILD HAS NOT ESTABLISHED A HOME IN WHICH HIS CHILD LIVES WITH HIM AS A MEMBER OF HIS FAMILY MAY NOT BE CREDITED WITH INCREASED QUARTERS ALLOWANCE ON ACCOUNT OF THE CHILD, THE LAW OF THE STATE OF CALIFORNIA, THE PLACE OF BIRTH OF THE CHILD AND THE RESIDENCE OF ALL THE PARTIES REQUIRING IN ADDITION TO ACKNOWLEDGING AN ILLEGITIMATE CHILD THAT A FATHER RECEIVE THE CHILD INTO HIS FAMILY AND TREAT THE CHILD AS HIS LEGITIMATE OFFSPRING.

TO B. W. HALL, OFFICE OF THE COMPTROLLER OF THE ARMY, NOVEMBER 12, 1968:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 16, 1968 (AMFAI COMFA), REQUESTING AN ADVANCE DECISION IN THE CASE OF A SECOND LIEUTENANT, CONCERNING HIS RIGHT TO A BASIC ALLOWANCE FOR QUARTERS ON BEHALF OF A DEPENDENT CHILD. YOUR LETTER WAS FORWARDED TO THIS OFFICE UNDER DATE OF SEPTEMBER 24, 1968, BY THE OFFICE OF THE COMPTROLLER OF THE ARMY AND HAS BEEN ALLOCATED D.O. NUMBER A-1019 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE LIEUTENANT, WHO IS UNMARRIED, STATES THAT HE IS THE NATURAL FATHER OF SUSAN ELIZABETH, BORN OUT OF WEDLOCK ON JUNE 29, 1967. IN SUPPORT OF HIS CLAIM, HE HAS SUBMITTED A COPY OF THE BIRTH CERTIFICATE WHEREIN HE IS NAMED AS FATHER OF THE CHILD AND A SWORN AFFIDAVIT SIGNED BY HIM ACKNOWLEDGING PATERNITY. WHILE IT APPEARS THAT THE CHILD IS NOT IN HIS CUSTODY, HE STATES THAT HE IS PROVIDING MONTHLY SUPPORT PAYMENTS FOR HIS CHILD IN THE AMOUNT OF $50.

FOR THE PURPOSES OF DETERMINING ENTITLEMENT OF A MEMBER OF A UNIFORMED SERVICE TO QUARTERS ALLOWANCE ON BEHALF OF A DEPENDENT CHILD UNDER 37 U.S.C. 403, THE TERM "DEPENDENT" AS USED IN THAT SECTION, IS DEFINED IN SECTION 401 (2) AS "HIS UNMARRIED LEGITIMATE CHILD (INCLUDING A STEP- CHILD, OR AN ADOPTED CHILD, WHO IS IN FACT DEPENDENT ON THE MEMBER).'

PARAGRAPH 30238, DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL, PROVIDES:

A MEMBER'S ILLEGITIMATE CHILD IS NOT AN ELIGIBLE DEPENDENT FOR WHOM A MEMBER MAY RECEIVE BAQ, UNLESS THE CHILD IS LEGITIMATED OR ADOPTED BY THE MEMBER. * * * A CHILD IS CONSIDERED LEGITIMATED FOR BAQ PURPOSES IF:

A. THE BLOOD PARENTS LATER ENTER INTO A VALID MARRIAGE AND THE MEMBER ACKNOWLEDGES PATERNITY OF THE CHILD, UNLESS A COURT FINDS THE CHILD TO BE ILLEGITIMATE.

B. THE CHILD IS LEGITIMATED BY COURT ORDER, OR OTHER ACTS REQUIRED BY APPROPRIATE LAW.

SINCE THE PLACE OF BIRTH OF THE CHILD AND RESIDENCE OF ALL THE PARTIES IS IN THE STATE OF CALIFORNIA, THAT STATE'S LEGAL REQUIREMENTS GOVERN THE PROCEDURE FOR LEGITIMATING THE MEMBER'S CHILD. IN THIS REGARD, SECTION 230, CALIFORNIA CIVIL CODE, PROVIDES:

ADOPTION OF ILLEGITIMATE CHILD. THE FATHER OF AN ILLEGITIMATE CHILD, BY PUBLICLY ACKNOWLEDGING IT AS HIS OWN, RECEIVING IT AS SUCH, WITH THE CONSENT OF HIS WIFE, IF HE IS MARRIED, INTO HIS FAMILY, AND OTHERWISE TREATING IT AS IF IT WERE A LEGITIMATE CHILD, THEREBY ADOPTS IT AS SUCH; AND SUCH CHILD IS THEREUPON DEEMED FOR ALL PURPOSES LEGITIMATE FROM THE TIME OF ITS BIRTH. * * *.

IN ORDER TO LEGITIMATE A CHILD UNDER SUCH PROVISIONS OF LAW IT HAS BEEN HELD THAT EACH ESSENTIAL REQUIREMENT EXPRESSED IN THE STATUTE, MUST BE MET. SEE IN RE FLOOD'S ESTATE, 21 P.2D 579 (1933). OF PARTICULAR IMPORTANCE HERE ARE THE REQUIREMENTS THAT THE FATHER RECEIVE THE CHILD INTO HIS FAMILY AND THAT HE OTHERWISE TREAT SUCH CHILD AS HIS LEGITIMATE OFFSPRING.

THE WORD "FAMILY," HAS BEEN INTERPRETED AS INCLUDING A UNIT WHICH CONSISTS OF MERELY A BACHELOR FATHER AND HIS ILLEGITIMATE CHILD (IN RE JONES' ESTATE, 135 P.288 (1913) ). UNLESS THE FATHER ACTUALLY RECEIVES THE CHILD INTO HIS HOME AND FAMILY AND THERE TREATS SUCH CHILD IN EVERY RESPECT AS HIS LEGITIMATE OFFSPRING, HE HAS NOT MET THE REQUIREMENTS OF THE STATUTE. SEE IN RE DELAVEAGA'S ESTATE, 75 P.790 (1904), AND IN RE BAIRD'S ESTATE, 223 P.974 (1924), 246 P.324 (1926).

NO INFORMATION HAS BEEN FURNISHED WHICH SUGGESTS THAT THE LIEUTENANT HAS ESTABLISHED A HOME FOR HIS CHILD IN WHICH SHE LIVES WITH HIM AS A MEMBER OF HIS FAMILY. THE MERE PAYMENT TO THE MOTHER OF A MONTHLY SUM FOR THE SUPPORT OF THE CHILD WOULD NOT SEEM TO ESTABLISH THE CLOSE "FAMILY" RELATIONSHIP CONTEMPLATED BY THE STATUTE. AS WAS STATED BY THE COURT IN THE DELAVEAGA CASE, THE STATUTE:

* * * DOES NOT SAY THAT HE MUST RECEIVE HIM INTO HIS FAMILY IF HE HAS A FAMILY, AND, IF NOT, IN THAT CASE RECEIVE HIM OR SEND HIM ELSEWHERE; BUT HAVING A FAMILY, OR AT LEAST A HOME IN WHICH HE CAN RECEIVE HIM, IS ONE OF THE CARDINAL CONDITIONS PRESCRIBED FOR SUCH ADOPTION.

SEE ALSO, DARWIN V GANGER, 344 P.2D 353 (1959), AND TRUSCHKE V LA ROCCA, 46 CAL. RPTR. 601 (1965).

IN THE CIRCUMSTANCES DISCLOSED, THE MATTER ADMITS OF TOO MUCH DOUBT TO AUTHORIZE CREDITING THE MEMBER WITH INCREASED QUARTERS ALLOWANCE ON ACCOUNT OF A DEPENDENT CHILD. THEREFORE, PAYMENT ON THE VOUCHER IS NOT AUTHORIZED AND IT WILL BE RETAINED HERE.