Unlike subsection (c)(2) which has two technical requirements, each of which must be met for a finding of paternity, subsection (c)(3) focuses solely upon the qualitative nature of the evidence presented. If, after sifting the evidence and weighing it in light of the totality of the circumstances, the court finds that the evidence is clear and convincing, then subsection (c)(3) requirements are met.
In conjunction with the foregoing discussions under subsection (c)(2), there was an additional conclusive piece of evidence which the ALJ did not comment upon in his report. When the child was born, the birth certificate listed as the father, Floyd Bricks, not Briggs. Plaintiff is an unschooled high school drop out. As is readily apparent in reading the transcript of testimony, her grammar and communication skills are minimal. She told the ALJ that she was not sure of the spelling of Floyd's last name. Her explanation is plausible, in light of the surrounding circumstances. If the first name on the birth certificate was any name but Floyd, the court could understand how this evidence could be summarily dismissed, but the exactness of the first name and the phonetic similarity of Bricks and Briggs supports the plaintiff's contentions.
I think the evidence clearly shows that Floyd Briggs was the father of the child. The birth certificate, the conversation with Mr. Rosensweig of Floyd's desire to have plaintiff abort her pregnancy, the testimony of support payments, and the belief of the pawn shop employees that the child was Floyd's, all evidence a man who had fathered a child. The evidence was substantial that Floyd Briggs held the child out to be his own and provided support for him as required by § 2107(c)(2). The evidence also establishes that the child was fathered by the wage earner under § 2107(c)(3). For the foregoing reasons, summary judgment will be granted in favor of the plaintiff. An appropriate order follows.
AND NOW, this 1st day of February, 1985, for the reasons set forth in the foregoing Memorandum, it is ORDERED that:
1. Defendant's motion for summary judgment is DENIED.
2. Plaintiff's motion for summary judgment is GRANTED.
3. The final decision of defendant Secretary denying the plaintiff's claim for child's insurance benefits under 42 U.S.C. § 402(c) is REVERSED and the matter is REMANDED for entry and award of benefits to the plaintiff.
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