King v. Smith Motion for Leave to File Brief Amici Curiae and Brief Amici Curiae

    IN THE

Supreme (Burnt af %  In tl^  States
October Term, 1967 

No. 949

RUBEN K. KING, Commissioner of the State Department of Pensions 
and Security, State of Alabama; LTJRLEEN BURNS WALLACE, 
Chairman, State Board of Pensions and Security, State of Alabama; 
JAMES RECORD, MRS. MARY WAITE, WILLIAM M. CLARKE, 
TEMPLE COLEY, GRANT WHIDDON, MRS. MARY ELLA 
REAVIS, Members of the State Board of Pensions and Security, 
State of Alabama; MRS. CLINTON S. WILKINSON, SR., Director, 
Dallas County, Department of Pensions and Security, Individually 
and in their official capacities,

Appellants,
— v .—

MRS. SYLVESTER SMITH, individually, and on behalf of her minor 
children, IDA ELIZABETH SMITH, ERNESTINE SMITH, 
WILLIE LOUIS SMITH and WILLIE JAMES SMITH and on 
behalf of all other mothers of needy, dependent children similarly 
situated,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE  AND 
BRIEF AMICI CURIAE OF THE NAACP LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC., THE NATIONAL OFFICE 
FOR THE RIGHTS OF THE INDIGENT, AND THE CENTER 

ON SOCIAL WELFARE POLICY AND LAW

EDWARD V. SPARER 
127 Wall Street 
New Haven, Conn.

PAUL DODYK 
BRIAN GLICK

401 West 117th Street 
New York, New York 10027

Attorneys for the Center on Social 
Welfare Policy and Law

JACK GREENBERG 
JAMES M. NABRIT, III 
LEROY D. CLARK 
CHARLES STEPHEN RALSTON 

10 Columbus Circle 
New Yrork, New York 10019

Attorneys for the NAACP Legal 
Defence and Educational Fund, 
Inc., and National Office for 
the Bights of the Indigent



TABLE OF CONTENTS

Motion for Leave to File Brief Amici Curiae and

PAGE

Statement of Interest of the Amici ..... -...............— 1

Summary of Argument.............. - ................................. 1

A r g u m e n t  :

It Is of Utmost Importance That This Court Hold 
in This Case That the Social Security Act and the 
Equal Protection Clause Prohibit State Rules 
Which Deny ADC to Needy Children by Defining 
as a “Parent” Any Person Not Legally Obligated 
to Support Those Children ...... ...................-........ 4

I. The Alabama Substitute-Father Rule at Is­
sue Here Is Only One of Many Forms of 
Substitute-Father Rule. A Variety of Other 
Definitions of “Parent,” All Unrelated to 
Legal Responsibility for Financial Support,
Are in Force in Many States and Have Been 
Employed by Alabama .... ................ .........  4

II. Any Definition of “Parent” for Purposes of 
ADC Eligibility Which Is Not Limited to 
Persons Under a Legal Duty to Provide 
Financial Support Conflicts With the Pur­
poses of Title IV of the Social Security Act 12
A. Title IV Creates a Right to Aid for All 

Eligible Children and Prohibits Eligibility 
Requirements Not Reasonably Related to 
the Purpose of the Title ............. ..........  12



ii

PAGE

B. Legislative History, Statutory Context,
and Administrative Interpretation Make 
it Clear that Title IV Was Intended to 
Aid All Needy Children Deprived of the 
Financial Support of a “Parent” Legally 
Obligated to Provide that Support ..........  15
1. The Legislative History of Section

406(b) and the Congressional Concern 
With “Breadwinners” ............. ..... ..... 16

2. The Meaning of the Word “Parent” 
as It Is Used Elsewhere in Title IV
of the Social Security Act ..... ...........  20

C. The Purpose of Title IV is Contravened
by ADC Eligibility Rules which Treat as 
a “Parent” Persons Not Legally Respon­
sible for Financial Support ......... ...........  23

III. Any Definition of “Parent” for Purposes of 
ADC Eligibility Which Is Not Limited to 
Persons Under a Legal Duty to Provide 
Financial Support Violates the Equal Pro­
tection Clause ................ ...................... ........  26
A. Definitions of Parent Which Include Per­

sons Not Under a Dutj  ̂of Legal Support 
so as to Deprive Children of Needed Aid 
Are Void Under the Ordinary Principles 
of Equal Protection Because Such Defini­
tions Bear No Rational Relation to the 
Purpose of Title IV or Any Other Per­
missible State Use of the ADC Program 26



I l l

B. Special Scrutiny of ADC Eligibility Rules 
Is Required Because of Their Drastic Ef­
fect oil the Ability of the Very Poorest 
and Most Helpless Children to Maintain

PAGE

Life Itself .................................................. 36

C on clu sio n  ...................................................................  41

Appendix A—-
Excerpts from Parts IV and V of the Handbook 
of Public Assistance Administration, United States 
Department of Health, Education, and Welfare .... la

Appendix B—
Alabama’s Substitute Father ADC Eligibility 
Rules ......................................................................  5a

Appendix C—
Other Substitute Father ADC Eligibility Rules 9a 

Appendix D—
Other States Which Define a Stepfather as a 
Parent for Purposes of ADC Eligibility But Im­
pose No Duty of Support on Stepfathers by Vir­
tue of the Marital Status Alone.......................... . 40a



IV

T able oe Oases

Bell v. Maryland, 378 U.8. 226 ..... ............
Brown v. Board of Education, 347 U.S. 483

39
39

PAGE

Chandler v. Whatley, 238 Ala. 206, 189 So. 751 (1939) 21
Collins v. State Board of Social Welfare, 248 Iowa 369,

81 X.W.2.1 4 (1957) ........ ........................................... 34

Edwards v. California, 314 U.S. 160 ........ ................34, 39
Englehardt v. Yung’s Heirs, 76 Ala. 534 (1884) ...... 21,33

Franklin v. White, 263 Ala. 223, 82 So.2d 247 (1955) .... 21

Griffin v. Bonin, W.D. La., C.A. 13,521 (March 7, 21,
1968) .......................................... ..... ..................... ......7,40

Griffin v. Illinois, 351 U.S. 12 .............. ............... .........  37
Griswold v. Connecticut, 381 U.S. 479 ........................  37
Gulf, Colorado and Santa Fe Ry. Co. v. Ellis, 165 U.S.

150 ....... .................................................... .............. ..27,36

Harper v. Virginia Board of Elections, 383 U.S. 663
30, 37

Hartford Steam Boiler Inspection Co. v. Harrison, 301
U.S. 459 ...................................... .............................. 36

Heiner v. Donnan, 285 U.S. 312 ____ ______ ____ _ 25
Hobson v. Hansen, 269 F. Supp. 401 (D. D.C. 1967) .... 37

McGowan v. Maryland, 366 U.S. 420  ....... ............... . 38
McLaughlin v. Florida, 379 U.S. 184 ......... ................. 30
McPherson v. California, N.D. Calif., C.A. No. 46759

(June 29, 1967) ........................... ....................... ...... 24
Metropolitan Casualty Ins. Co. v. Brownell, 294 U.S.

580 ................ ..................... ............ ......... .................. 37
Mobile, J.&.K.C.R. Co. v. Turnipseed, 219 U.S. 35 .... 25 
Morgan v. United States, 298 U.S. 468 ....... ................  13



V

Nicholas v. State, 32 Ala. App. 574, 28 So.2d 422 (1946) 21
N.L.R.B. v. Express Publishing Co., 312 U.S. 426 ......  13

Oyama v. California, 332 U.S. 633 ............................. — 38

Rios v. Hackney, NJD. Tex. C.A. No. 3-1852 (Nov. 30,
1967) ...................................... .................... -.............. 10

Roussaw v. Burson, M.D. Ga., C.A. No. 2323 (March 
18, 22, 1968) .................. ........... ................... ..............8, 40

Skinner v. Oklahoma, 316 U.S. 535 ......... ..... .......... . 37

Takahasi v. Fish and Game Commission, 334 U.S. 410 38 
Trnax v. Raich, 239 U.S. 33 ................................... ..... 38

United States v. Carolene Products Co., 304 U.S. 144 38

Williams v. Witherspoon, 171 Ala. 559, 55 So. 132 
(1911) ............................... .........................- .............. 21

Yick Wo v. Hopkins, 118 U.S. 356 .... ...................... . 38

Sta tu tes:

42 U.S.C. §602(a)(4) ________ ____ ___ ___-..........  13
42 U.S.C. §602(a)(7) ........ .........................................  29
42 U.S.C. §602(a) (10) ........ ............................. -..........  12
42 U.S.C. §602(a) (15) (B) and (C) ........ ...................  30
42 U.S.C. §604(b)  ......... .........................- ........ .........  35
42 U.S.C. §606(a)  ........................ -.......... ............. . 4
42 U.S.C. §606(b) ............................................... -........ 14
42 U.S.C. §607 ....................-........................................  15

PAGE



VI

Pub. L. 87-543, §107(b) (1962) .............................. 35
Social Security Act, Title IV :

§402(a)(4)  ............. .............................................  13
§402(a) (10)  ...... .... ................... ............ ............  12
§402 (a) ('ll) ......................   20,21,23
§402a(15) (B) and (C) ........................................... 30
§406(a) .............. ...................... .............4,15,16,18, 20,

21, 22, 23
§406(b) .......    14,20,22,23
§407 ......................................................................... 15

Alabama Support and Desertion Laws, Code of Ala­
bama, Title 34, §§89-104 ..........      29

Code of Alabama, Tit. 7, §123.................................  21
Code of Alabama, Tit. 26, §262(b) .....................      21
Code of Alabama, Tit. 27, §5 ..........    21
Code of Alabama, Tit. 27, §6 .      21
Code of Alabama, Title 27, §§12(1)-12(9) ............   29
Code of Alabama, Tit. 34, §89 __ _    21
Code of Alabama, Tit. 34, §90 ..         21
Code of Alabama, Tit. 49, §17(14) ...............................  16

Other Authorities-.
Ala. Manual of Public Assistance Administration, Pt.

I, Chap. II, p. 36 ....................    22

Atkinson, Handbook of the Law of Wills, §18 (2d ed. 
1953) ..........................................................................  21

Bell, A id to D ependent  Childben  (1965) ................... 8,29

PAGE



Black, Law Dictionary (4th ed. 1957) ...................... . 19
Hearings on Hunger and Malnutrition in America, 

before the Subcommittee on Employment, Manpower 
and Poverty of the Committee on Labor and Public 
Welfare, U.S. Senate, 90th Cong., 1st Sess. (July 11,
12, 1967) ................................................ ....................  39

79 Cong. Eec. 5476, 74th Cong., 1st Sess. (1935) ........  18
HEW, Handbook of Public Assistance Administration:

Introduction ......   13
Pt. II, <§4300 ................ ............ ......... ...................  13
Pt. IV, §2200 ........................................................  14
Pt. IV, §2321 ..................................................... . 13
Pt. IV, §3131(7) _____ __________ ________ ___ 24
Pt. IV, §3412 .......................................................19, 32
Pt. IV, §5120 ........................ .................. .......... . 14
Pt. IV, §§8100-8149 ..... .............. .................. ........ 21
Pt. IV, §8131(2) .............    22
Pt. V, §3320 ..................... .......................- ...........  22

HEW, Illegitimacy and Its Impact on tie Aid to De­
pendent Children Program (1960) ................   15

H.E. Doc. No. 81, 74th Cong., 1st Sess. (1935) ..........16,17
H.E. Eep. No. 615, 74-th Cong., 1st Sess. (1935) ....... . 17
2 Larson, Workman’s Compensation, §63 (1961) ......... 21
Lewis and Levy, Family Law and Welfare Policies:

The Case for ‘Dual Systems,’ 54 Calif. L. Eev. 748 
(1966) ....................................   24

McKay, Reapportionment and Equal Protection, 61 
Mich. L. Eev. 645 (1963) .... ........... .........................  38

V ll

PAGE



V l l l

PAGE

California Public Social Service Manual, §44-101, item 
17 ____ _____ _______ _____ _______....................  24

S. Eep. No. 628, 74th Cong., 1st Sess. (1935) ...... .. . 17
Speiser, Recovery for Wrongful Death, §10:8 (1967) .... 21
State Letter No. 452, Bureau of Public Assistance, 

Social Security Administration, Department of 
Health, Education and Welfare ......... ....................  35

tenBroek, The Impact of Welfare Law upon Family 
Law, 42 Calif. L. Eev. 458 (1954) ........................... 33

Webster, New World Dictionary (College Ed. 1956) .... 18
Welfare’s “Condition X,” 76 Yale L.J. 1222 (1967) ....14,15,

24,25



I n  t h e

(Emirt at tty SteTB
October T erm , 1967 

No. 949

R uben  K . K in g , Commissioner of the State Department 
of Pensions and Security, State of Alabama; L urleen  
B urns W allace, Chairman, State Board of Pensions 
and Security, State of Alabama; J ames R ecord, M rs. 
M art W aite, W illiam  M. Clarke, T em ple  C oley, 
Grant W hiddon , M rs. M ary E lla R eavis, Members 
of the State Board of Pensions and Security, State of 
Alabama; Mrs. Clinton  S. W il k in so n , S r., Director, 
Dallas County, Department of Pensions and Security, 
Individually and in their official capacities,

Appellants,

M rs. S ylvester S m it h , in d iv id u a lly  an d  on b eh a lf of h e r  
m in o r ch ildren , I da E lizabeth  S m it h , E rn estin e  S m it h , 
W il l ie  L ouis S m it h  an d  W illie  J ames S m it h  an d  on 
b eh a lf of all o th e r m o th e rs  of needy , d ep en d en t ch ild ren  
s im ila rly  s itu a ted ,

Appellees.

ON A PPEA L  FR O M  T H E  U N IT E D  STA TES D ISTR IC T  COU RT FOR T H E  
M ID D LE D ISTR IC T  OF ALABAMA, N O R T H E R N  D IV ISIO N

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE 
AND STATEMENT OF INTEREST OF THE AMICI

Movants 1ST A A CP Legal Defense and Educational Fund, 
Inc., National Office for the Rights of the Indigent, and 
Center on Social Welfare Policy and Law respectfully 
move the Court for permission to file the attached brief 
amici curiae, for the following reasons. The reasons as­
signed also disclose the interest of the amici.



2

(1) Movant NAACP Legal Defense and Educational 
Fund, Inc., is a non-profit corporation, incorporated un­
der the laws of the State of New York in 1939. It was 
formed to assist Negroes to secure their constitutional 
rights by the prosecution of lawsuits. Its charter declares 
that its purposes include rendering legal aid gratuitously 
to Negroes suffering injustice by reason of race who are 
unable, on account of poverty, to employ legal counsel on 
their own behalf. The charter was approved by a New 
York court, authorizing the organization to serve as a 
legal aid society. The NAACP Legal Defense and Edu­
cational Fund, Inc. (LDF), is independent of other organ­
izations and is supported by contributions from the public. 
For many years its attorneys have represented parties in 
this Court and the lower courts, and it has participated 
as amicus curiae in this Court and other courts, in cases 
involving many facets of the law. 2

(2) A central purpose of the Fund is the legal eradica­
tion of practices in our society that bear with discrimina­
tory harshness upon Negroes and upon the poor, deprived, 
and friendless, who too often are Negroes. In order more 
effectively to achieve this purpose, the LDF in 1965 estab­
lished as a separate corporation movant National Office 
for the Rights of the Indigent (NORI). This organization, 
whose income is provided initially by a grant from the 
Ford Foundation, has among its objectives the provision 
of legal representation to the poor in individual cases and 
the presentation to appellate courts of arguments for 
changes and developments in legal doctrine which unjustly 
affect the poor. Thus NORI is engaging in legal research 
and litigation (by providing counsel for parties, as amicus 
curiae, or co-counsel with legal aid organizations) in cases 
in which rules of law may be established or interpreted 
to provide greater protection for the indigent.



3

(3) In carrying out this program to establish the legal 
rights of the poor LDF and NORI attorneys have handled, 
inter alia, cases involving public and private housing,1 2 
consumer fraud and credit, and a number of cases dealing 
with rights of welfare recipients. These include actions 
challenging a Georgia “employable mother” regulation,2 a 
Missouri residency requirement,3 a Mississippi procedure 
that gives a recipient a fair hearing only after benefits 
have been terminated,4 * and a Maryland regulation that 
places a fixed upper limit on the amount any family may 
receive regardless of its size.6 In addition, LDF and NORI 
attorneys are assisting or have assisted legal aid and 
neighborhood legal services groups in similar suits in 
California, Ohio, and elsewhere.

(4) The Center on Social Welfare Policy and Law is 
the specialized welfare law resource of the Legal Services 
Program of the Office of Economic Opportunity. Affiliated 
with the Schools of Law and Social Work of Columbia 
University, the Center undertakes research pertaining to 
the legal rights of welfare beneficiaries and supports OEO- 
funded legal service programs and other legal organiza­
tions such as LDF and NORI through education and 
assistance in the preparation of important litigation. The 
Center also maintains the nation’s only comprehensive 
private collection of state public assistance regulations and 
manuals.

1 E.g., Thorpe v. Housing Authority of the City of Durham, 386 U.S. 
670; Williams v. Shaffer, 385 U.S. 1037.

2 Anderson v. Burson, N.D. Ga., C.A. No. 10443.

8 Northway v. Carter, D.C. Mo. C.A. No. 67-C-292.

4 Williams V. Gandy, N.D. Miss., C.A. No. GC 6728.

6 Williams v. Dandridge, D.C. Md., C.A. No. 19250.



4

(5) The Center has concerned itself with many basic 
legal issues in the welfare field including residence tests, 
work requirements, welfare searches, maximum f a mily 
grants, and various procedural questions. Foremost among 
these issues have been the substitute-father and man-in- 
the-house rules in public assistance. The Center has as­
sisted in numerous administrative hearings and court 
cases involving substitute-father rules as they affect eli­
gibility and computation of need. In February 1966, at­
torneys of LDF and the Center, filed a complaint with 
the Secretary of the United States Department of Health, 
Education, and Welfare, on behalf of LDF and named in­
dividuals, seeking* to have the substitute father regula­
tions of Georgia and Arkansas, which are similar to Ala­
bama’s, declared violative of the Fourteenth Amendment 
and the Social Security Act. Despite repeated requests 
addressed to the Secretary for action on the complaint, 
none has been taken in the two years since its filing. 
OEO-funded neighborhood legal service programs in Lou­
isiana, Georgia, and the District of Columbia currently 
have pending in the federal district courts substitute-father 
cases for which Center attorneys are serving as special 
counsel. LDF, NORI, and the Center, together with these 
neighborhood programs and the 247 other federally-funded 
legal service programs throughout the nation, have a vital 
interest in presenting to this Court the full range of issues 
raised and rules affected by this case. 6

(6) Counsel for the appellees have consented to the 
filing of a brief amici curiae by the movants. The present 
motion is necessitated because counsel for the appellants 
have refused consent.



5

W h e r e fo r e , movants pray that the attached brief amici 
curiae be permitted to be filed with the Court.

Respectfully submitted,

J ack Greenberg 
J ames M. N abrit, III 
L eroy I). Clark 
Charles S t e ph e n  R alston 

10 Columbus Circle 
New York, New York 10019

Attorneys for the NAACP Legal 
Defense and Educational Fund, Inc., 
and National Office for the Rights 
of the Indigent

E dward V. S parer 
127 Wall Street 
New Haven, Conn.

P aul D odyk 
B rian  Glick

401 West 117th Street 
NewT York, New York 10027

Attorneys for the Center on 
Social Welfare Policy and Law



I n  t h e

(Emtrt uf %  Imtpfr States
October T erm , 1967

No. 949

R uben  K . K in g , Commissioner of the State Department 
of Pensions and Security, State of Alabama; L urleen  
B urns W allace, Chairman, State Board of Pensions 
and Security, State of Alabama; J ames R ecord, Mrs. 
M ary W aite, W illiam  M. Clarke, T em ple  C oley, 
Grant W hiddon , M rs. M ary E lla R eavis, Members 
of the State Board of Pensions and Security, State of 
Alabama; M rs. Clin to n  S. W ilk in so n , Sr., Director, 
Dallas County, Department of Pensions and Security, 
Individually and in their official capacities,

-v.-
Appellants,

M rs. S ylvester S m it h , in d iv id u a lly , an d  on b eh a lf  of h e r  
m in o r ch ild ren , I da E lizabeth  S m it h , E rnestin e  S m it h , 
W il l ie L ouis S m it h  an d  W illie  J ames S m it h  an d  on 
b eh a lf o f all o th e r m o th e rs  of needy , d ep en d en t ch ild ren  
s im ila r ly  s itu a ted ,

Appellees.

ON A PPEA L  PR O M  T H E  U N IT E D  STATES D ISTR IC T  COU RT FO R T H E  
M ID D LE D ISTR IC T OF ALABAMA, N O R T H E R N  D IV ISIO N

BRIEF AMICI CURIAE

Summary o f Argument

I
The Alabama substitute-father rule here in question is 

but one of a variety of similar rules used by a minority



2

of states. Indeed, during the course of this litigation, 
Alabama has employed two other versions of the rule. 
The regulations restrict eligibility of needy dependent 
children for benefits under Title IV of the Social Security 
Act. Although they vary, these rules share a common 
denominator: a definition of the word “parent” to include 
men who are not in fact natural or adoptive parents, wfiio 
have no legal responsibility to support the children in the 
family, and who have not in fact assumed the responsibility 
to give support. Some rules require that such a man live 
in the home, either as a stepfather or otherwise; others 
require only that there be some kind of social or sexual 
relationship between the man and the mother of the chil­
dren; and still others, in addition to one or both of the 
above, refuse benefits if the man has assumed an unde­
fined “father-role” towards the children. It is of the utmost 
importance to all needy children that this Court clarify 
the status of all forms of substitute-father rules.

11
Regulations, such as Alabama’s and other states’, that 

define “parent” for ADC eligibility to include persons who 
do not have a legal duty to support children in a family are 
in conflict with the intent and purpose of Title IV of the 
Social Security Act. Under the Act children who are the 
intended beneficiaries of its provisions are entitled to its 
benefits. No such eligible persons may be excluded from 
those benefits by the states through conditions at variance 
with the statute’s purpose. It is clear from legislative 
history, the context of the Act, and the interpretation given 
it by HEW that all needy children who are deprived of 
the financial support of their natural or adoptive parent 
or a stepparent legally responsible for financial support 
were intended to be eligible for benefits. Thus, all-state 
rules .which define, as “parents” persons who are. not so



3

legally responsible and deny aid on that basis violate the 
Act because they bear no rational relation to financial need 
or deprivation of parental support.

I l l
The Alabama regulation, as well as others that similarly 

define “parent,” violates the Equal Protection Clause of 
the Fourteenth Amendment on two tests. First, such a 
definition bears no reasonable relation to the purpose of 
Title IV of the Social Security Act or any permissible 
state use of the ADC program. None of the rationales 
which can be offered in support of the rule are sufficient to 
justify it in light of the Act’s clear purpose. Second, in 
light of the situation of the appellees and their class, 
needy children who are otherwise helpless and wholly 
without the means to live, special scrutiny should be given 
to the classifications created by substitute-father rules. 
This case presents a unique opportunity for this Court to 
provide guidance which will guarantee these children the 
protection intended by Congress.



4

A R G U M E N T

It Is o f Utmost Importance That This Court Hold  
in  This Case That the Social Security Act and the Equal 
Protection Clause Prohibit State Rules W hich Deny 
ADC to Needy Children by Defining as a “Parent” Any 
Person Not Legally Obligated to Support Those Chil­
dren.

I.
The Alabama Substitute-Father Rule at Issue Here 

Is Only One o f Many Forms o f Substitute-Father Rule. 
A Variety o f Other Definitions o f “Parent,” All Un­
related to Legal Responsibility for Financial Support, 
Are in Force in Many States and Have Been Employed  
by Alabama.

The question which underlies the primary statutory and 
equal protection arguments in this case is: who are the 
“parentfs]” (or, more particularly, the fathers) referred 
to in §406(a) of Title IV of the Social Security Act (42 
U.S.C. §606 (a)), whose death, absence or incapacity en­
titles needy children to Aid to Dependent Children bene­
fits?

We show in Point II that Congress intended the term 
“parent” to mean only a natural or adoptive father, or a 
stepfather who is under a legal duty to support the chil­
dren. Not only is such a definition the one clearly intended 
by Congress; any other definition frustrates the purpose 
of the ADC program and, as shown in Point III, results 
in an unjustifiable classification excluding from ADC bene­
fits needy children who in fact are deprived of their 
fathers’ support. We think it appropriate at this initial 
point in the Brief to review the varied and conflicting defi­
nitions of “father” used in a substantial minority of juris­



5

dictions in this country, particularly since during the 
course of this litigation the Appellant Alabama welfare 
officials have employed a number of these definitions. Such 
a review is of critical importance in this case so that this 
court may undertake its deliberations cognizant of the 
subtle variations which can be incorporated into the sub­
stitute-father rule.

The court below considered “economic factors” and not 
moral conduct or sexual relationships fundamental to 
proper definition of “parent” under Title IV. 277 F. Supp. 
31, 39. Appellant Alabama argues, howmver, that its 
substitute-father regulation, looking towards sexual rela­
tionships with the mother as the definitive element of 
fatherhood, is not based upon moral judgments but “is a 
method of utilizing economic resources available” from 
substitute-fathers. Appellant’s Brief, p. 11 . Appellees 
stress that, under the Alabama regulation, the substitute- 
father need have no relationship to the children, need not 
live in the house or aid or guide the children in any way— 
or even know the children. The United States, in an 
“amicus letter” to the court below, sought to distinguish 
between a “suitable home” rule, which looks to the moral 
behavior of the mother, and a “true” substitute-father rule, 
wherein the man has some sort of undefined relation with 
the children.1

Subsequent to the decision of the court below, Appel­
lants have successively adopted two different definitions 
of “father.” See Appendix B, infra, pp. 7a-8a. The rule 
first adopted by Alabama would define a “substitute father” 
as an unrelated male who is living in the house and acts 
as a father to the children in an unspecified way, regard­
less of whether that person is legally bound to support 
the children. Under the other, more recent Alabama rule

1 Exhibit K, appended to Appellants’ Brief in this Court.



6

a man not legally married to the mother is not treated 
as a substitute father; the regulation does, however, dis­
qualify children if they acquire a stepfather, even though 
such a stepfather owes the children no duty of support, 
may not contribute to their support, and may not be finan­
cially able to so contribute.

The dispute over what constitutes fatherhood within the 
meaning of Title IY is by no means confined to Alabama. 
Some states have adopted rules essentially similar to that 
of Alabama. A number of states deem the critical ele­
ment to be whether the unrelated male is physically pres­
ent within the home. Other states reject the latter element 
as critical and hold that the “kindness” or other non­
economic manifestations of fatherhood may be determina­
tive. Still other states require both presence in the home 
and some unspecified, undefined (except by the individual 
welfare worker) incident of fatherhood to be exhibited. 
Finally, several states make a legal marriage dispositive 
of the “substitute-father” question despite the fact that 
the marriage does not render the stepparent liable for 
support in most of these jurisdictions.

Whatever the variations in scope and language, these 
“substitute-father” rules have one crucial common char­
acteristic. Each denies essential financial assistance to 
needy children only because of a man who is under no 
legal obligation to provide financial support for those 
children. The text of the relevant rules is attached to 
this Brief in Appendix C. Appendix D indicates which 
states treat a stepfather as a parent for purposes of ADC 
but do not require him to support his stepchildren. Be­
low, we briefly review the principal variants of substitute- 
father rules in addition to those adopted by Alabama. We 
should perhaps emphasize that the substitute-father rules 
to which amici refer do not exist in the majority of juris­



7

dictions. Most states define “father,” for purposes of ADC 
eligibility as do amici: as a natural or adoptive father 
or a stepfather who has a legal duty of support.

A rkansas, G eorgia and Louisiana: “Father” is a
m an who has a sexual rela tionsh ip  w ith  th e m oth er, 
w hether he is living in the hom e or not.

Arkansas, Georgia and Louisiana, like Alabama, make 
the sexual relationship between the mother and an unre­
lated man the critical element in determining whether the 
children are deprived of their father’s support due to death 
or absence from the home. The concern in Arkansas is 
with whether the mother affords “the privileges of a hus­
band” to a man. Evidence of such a relationship includes 
whether there have been “frequent visits” by the man to 
the house of the mother or “frequent appearances of the 
man and mother together in public.” (The full text of this 
rule is set out in Appendix C, pp. lla-12a.) In Georgia, a 
“substitute father” may be a man, “married or single . . . 
[who] visits frequently for the purpose of living or co­
habiting with the applicant.” (App. C, pp. 15a-16a.) Prac­
tice under the Georgia rule is illustrated by the following 
case description from an HEW report:

An application was rejected for the third time in three 
months because the mother “had not proved there is 
no substitute father.” Proof of the death of the father 
of two children had been secured. The mother brought 
a receipt showing that she had filed a warrant against 
the father of the other child. A medical statement 
showed that she was not able to work. According to 
the record, a man whom she said was a roomer lived 
in the home and paid $4 a week room rent. Prior to 
the last rejection, the mother stated that this former 
roomer had moved. No efforts were made to secure 
proof that he was actually gone or to tell the appli­



8

cant how she could prove this in order to clear her 
eligibility. Several letters from the mother indicated 
that the family was in serious need, and that a very 
sick child required hospitalization. No response was 
recorded.2

Louisiana, using the term “nonlegal marital union” in 
lieu of “substitute parent,” presumes that a “nonlegal 
union” exists (and hence denies aid), inter alia, if:

a man who is legally married and living with his 
legal family is visiting an ADC mother in her home 
or meeting her elsewhere. . . . (Id., p. 24a; full text 
at 19a-27a.)

Eecently, preliminary injunctions against both the Georgia 
and Louisiana substitute-father regulations have been is­
sued by three-judge Federal Courts. Roussaw v. Burson 
(M.D., Georgia, C.A. No. 2323 (March 22, 1968)); Griffin v. 
Bonin (W.D. La., C.A. No. 13,521 (March 21, 1968)). These 
cases await the outcome of this appeal.

Indiana and M ississippi: A “su bstitu te  fa th er” is a 
m an who p erfo rm s a “fa ther-ro le” to  the ch ildren;  
no defin ition  o f “ fa ther-ro le” is offered.

Indiana’s substitute-father rule is concerned with un­
related males with regard to whom “there is reason to 
believe this man is living in the home with the mother 
and the children, partially assuming the role of husband 
and father.” (Id., pp. 16a-18a.) (Emphasis added.) No fur­
ther clues are offered as to what this partial assumption 
of the role might be. Mississippi’s rule, in contrast, does

2 HEW, Social Security Administration, Bureau of Public Assistance, 
“Keport of Administrative Review Findings on the Application Process 
for Georgia” (1957), quoted in Bell, A id  to  D e p e n d e n t  C h il d r e n  90 
(1965).



9

not require a “father role” when the unrelated man lives 
in the home, but does require “the father role” when the 
unrelated man does not live in the home. Like Indiana, 
Mississippi gives little indication as to what “the father- 
role” is. {Id., p. 29a.)

D istric t o f C olum bia: G uides to  th e “ father-role.”

In the District of Columbia, a sexual relationship with 
the mother is not enough to dub a man the substitute father. 
In the home or out, the question is whether his “relation­
ship to the family is that of husband and father.” {Id., pp. 
12a-15a.) In determining this question, the D.C. rule offers 
guidance to the welfare worker in the form of “some facts 
to be considered in determining that the man (not living 
in the home) has a relationship with the children similar 
to that of father and child.” These facts include whether 
the man:

Visits the home to see the children; . . . Donates 
gifts to the children; . . .  Is the father figure in 
the home; . . . Acts “at home” with the children 
by dressing, feeding, carrying or fondling them;
. . . Takes the children on walks, excursions and 
the like; . . . Shows concern about the health of 
the children and uses health facilities in the com­
munity to restore the health of the children; . . . 
Shows interest in the educational progress of the 
children. . . . {Id., p. 14a.)

Texas: The m an m ust be p resen t in the h om e , but 
the burden  of p ro o f rests w ith  the m other.

Texas includes as a father any man “with whom the 
mother . . .  is maintaining a marital relationship or main­
taining a home together.” (App. C, p. 35a.) However, as 
in Alabama and other states, if there have been “contin­



10

uing pregnancies” or allegations that the mother has been 
“cohabiting with a man”, the mother must establish the 
absence of a substitute father. {Id., p. 36a.) Until the 
recent decision in Rios v. Hackney (N.D. Tex. C.A. No. 
3-1852, Nov. 30, 1967), a mother accused of cohabitation 
could not even confront her accuser at an administrative 
“fair hearing”.

M ichigan and New H am psh ire: E xtram arita l Sexual 
R elations D isq u a lify ; Legalization by  M arriage Leads 
to  C onflicting T reatm en t.

Michigan’s rule requires an ADC mother, who has “a 
continuing relationship” with a “partner . . . exercising 
the role of parent to the children or the rights of a spouse 
to the client,” to marry the “partner” in 30 days or lose 
aid. (App. C, pp. 27a-28a.) If she marries, she may then 
be eligible for aid even though a stepparent is in the 
home. If there is legal impediment to marriage, the client 
(or partner) must institute legal action in 6 months.

New Hampshire’s rule states: “ . . .  an unrelated male 
is not permitted to live with an ADC family, whether in 
their home or his.” {Id., p. 30a.) With refreshing candor, 
this rule concedes it is based on concern for “moral well­
being” and “community criticism and censure.” {Id., p. 
31a.) In contrast to Michigan, however, in New Hampshire 
if the unrelated male marries the woman, ADC eligibility 
is denied on the ground that a stepfather is present.3

3 This was stated unequivoeably by George E. Murphy, Director, Divi­
sion of Welfare, New Hampshire Department of Health and Welfare, in 
a letter to amicus Center, Nov. 30, 1967. According to the same letter, 
New Hampshire law holds a stepfather responsible for support only of 
“the children for whom he has assumed a parental relationship.”



11

New M exico and P ennsylvania: C onflicting ru les on  
w hether an unrela ted  m an liv ing  in the h om e is a 
“su bstitu te  fa th er’’’ and on w hether a s tepparen t is 
such a “fa th er.”

New Mexico defines as a father the natural father and 
“any man living with the mother and child with the 
exclusion of the step-father” of the child. (Id., p. 32a.) 
(Emphasis in the original.) Pennsylvania, on the other 
hand, does not define an unrelated male in the house as 
a father for purposes of eligibility, but it disqualifies chil­
dren with stepfathers even though no support duty is im­
posed upon stepfathers by the mere fact of marriage and 
living in the home. (See, App. D, p. 41a.)

The conflict and variety of the substitute-father rules 
resist sensible analysis. North Carolina, for example, finds 
needy children ineligible for ADC if an unrelated man 
lives in the home and one of the children is illegitimate. 
If all of the children are legitimate, however, they are 
eligible despite the presence of the man. (App. C, p. 32a- 
33a.) Other substitute-father rules, some of which are 
equally difficult to understand, are set out in Appendix C.

Whatever may be the bizarre intricacies of each substi­
tute-father rule, they all share one common characteristic 
crucial in amici’s view: The “substitute father” may be 
someone other than a natural or adoptive father or a 
stepfather who has a legal duty to support the children, 
or who has in fact accepted full responsibility for their 
support. In the remainder of this Brief, amici seek to 
demonstrate that this characteristic places all such rules 
in conflict with the Social Security Act and the Equal 
Protection Clause.



12

II.

Any D efinition o f “Parent” for Purposes o f ADC 
Eligibility Which Is Not Limited to Persons Under a 
Legal Duty to Provide Financial Support Conflicts With 
the Purposes o f Title IV o f the Social Security Act.

A. T itle  IV  Creates a R igh t to  A id  fo r  A ll E lig ib le  C hildren  
and P roh ib its  E lig ib ility  R equ irem en ts N ot R easonably  
R ela ted  to  the P u rpose  o f  the T itle.

Title IV of the Social Security Act authorizes federal 
financial assistance only to those state programs of Aid 
to Dependent Children which fit the definitions and meet 
the conditions there set forth. Several of these provisions 
create a “statutory entitlement” (to use the term of the 
court below, 277 F. Supp. at 34 and 38) or, in other words, 
a right of eligible persons to receive assistance.

The Social Security Act, Section 402(a) (10), 42 U.S.C. 
§602(a) (10),4 * requires that:

. . .  aid to families with dependent children shall be 
furnished with reasonable promptness to all eligible 
individuals. . . . (Emphasis added.)

This statutory command creates not simply a duty for 
welfare agencies to grant assistance to all eligible individ­
uals, but a correlative right of such individuals to receive 
aid. Thus, the United States Department of Health, Ed­
ucation, and Welfare (HEW) has stated that this provi­
sion :

removes from the discretion of the [state or local] 
administration the right to exclude persons falling 
within the scope of the program, because all persons

4 This section was numbered as §402(a) (9), 42 U.S.C. 602(a) (9), prior
to the enactment of the 1967 Amendments to Title IV.



13

meeting the eligibility qualifications are equal before 
the law and have a right to receive assistance under 
a uniform application of law. The right of eligible 
persons to receive assistance is also inherent in 
[other] requirements of the Social Security Act.5

Among the other requirements of the Act which estab­
lish the right of eligible claimants to public assistance is 
the requirement that a “fair hearing [be granted] to any 
individual whose claim for aid . . .  is denied or not acted 
upon with reasonable promptness.” Social Security Act, 
§402(a) (4)', 42 IJSCA §602(a)(4). In such a hearing the 
welfare department must establish that the applicant’s ex­
clusion is not arbitrary. “Fair hearing” itself implies a 
requirement of fair results. See, Morgan v. United States, 
298 TJ.S. 468; N.L.R.B. v. Express Publishing Co., 312 U.S. 
426.

Further, not only must all eligible persons receive bene­
fits, but the federally supported state program must 
guarantee that “the benefits of the program be equally 
available to all eligible persons,” so that eligible persons 
in like circumstances of need receive equal amounts of 
benefits. HETVT, Handbook of Public Assistance Adminis­
tration, Pt. II, §4300 (1962). The Act also requires that, 6

6 This statement appeared in HEW’s Handbook of Public Assistance 
Administration, Pt. IV, §2321, as an explanation of the federal statutory 
and administrative requirements designed to protect the right of eligible 
persons to receive assistance. This Handbook, which will be cited through­
out the Brief, is provided to state welfare agencies as “the official 
medium for issuance of interpretations and instructions concerning re­
quirements of the public assistance Titles of the Social Security Act” 
(Introduction, p. i.). In February 1968, HEW revised the Handbook 
for purposes of publication in the Federal Register. While explanatory 
language such as that quoted above was deleted as unnecessary, the ad­
ministrative requirements to protect the rights of eligible persons were 
strengthened. Transmittal 139, Handbook of Public Assistance Adminis­
tration.



14

except in specially defined circumstances, the benefits given 
be in the form of “money payments” so as to guarantee 
that recipients, not welfare agencies, will have the right 
to determine how the money is best spent. Social Security 
Act, §406(b), 42 USCA §606(b).6

Of course, the right of all eligible persons to receive 
ADC assistance would be quickly and easily nullified if 
states could, consistently with the statute, create eligibility 
conditions at variance with the statutory purpose. For 
this reason, HEW has long held that state eligibility con­
ditions must be consistent with the statutory purpose, see 
Welfare’s “Condition X,” 76 Yale L.J. 1222 (1967), and re­
cently included that requirement in its official regulations:

A State Plan for OAA, AFDC, AB, APTD, or AABD 
must provide that: . . . The policies and procedures 
for taking applications and determining eligibility for 
assistance or other services will be consistent with 
program objectives, will respect the rights of individ­
uals under the United States Constitution, the Social 
Security Act, Title VI of the Civil Rights Act of 1964, 
and all other relevant provisions of Federal and State 
Laws, and will not result in practices that violate the 
individual’s privacy or personal dignity, or harrass 
him, or violate his constitutional rights. HEW, Hand­
book of Public Assistance Administration, Pt. IV, 
§2200 (1967).

HEW has applied this requirement to prohibit, inter 
alia, eligibility criteria which exclude illegitimate children, 6

6 “The provision that assistance shall be in the form of money pay­
ments is one of several provisions in the act designed to carry out the 
basic principle that assistance comes to needy persons as a right. The 
right carries with it the individual’s freedom to manage his own affairs. 
. . HEW, Handbook of Public Assistance Administration, Pt. IV, 
§5120 (1947).



15

Indians, or—in the case of the optional program of ADC 
for families with an unemployed parent (Social Security 
Act, §407, 42 U.S.C. §607)—children of domestic and agri­
cultural workers.7 It has also prohibited on this basis 
state welfare rules which treat recipients differently be­
cause of the source of their income and rules which 
assume income or jobs which are not, in fact, available. 
HEW’s most notable application of the requirement of 
consistency with the purposes of the Act is its “Flemming 
Ruling,” which prohibited, as bearing “no just relation­
ship to the ADC program,” “suitable home” rules that 
deny ADC to an otherwise eligible child “because of the 
behavior of his parent or other relative.” 8 The amicus 
letter submitted below on behalf of the United States con­
ceded that the form of the substitute-father eligibility 
rule used in Alabama conflicts with the purposes of Title 
IV because it is de facto a “suitable home” rule.9 We will 
show below that the purposes of Title IV are contravened 
by all forms of substitute-father rule.

B. Legisla tive H istory, S ta tu tory  C ontext, and A dm in istra tive  
In terpre ta tion  M ake it Clear that T itle  IV  Was In tended  
to  A id  A ll N eedy C hildren  D ep rived  o f the Financial 
S u p p o rt o f a “Parent”  Legally O bligated  to  P rov ide  that 
S u pport.

Section 406(a) of the Social Security Act and Alabama’s 
implementing legislation are intended to aid “needy de­
pendent children,” children “deprived of parental support

7 These and other rulings, as well as the statutory and constitutional
basis for this requirement, are set forth in Welfare’s “Condition X ,” supra. 
See also, with regard to the illegitimacy ruling: HEW, Illegitimacy
and Its Impact on the Aid to Dependent Children Program 54 (1960).

8 The full text of the Flemming Ruling, as well as related regulatory 
material, is set forth in the opinion below, 277 F. Supp. at 35-36, and 
in Appellees’ Brief herein.

9 Appellants’ Brief, Exhibit K.



16

or care Tby reason of the death, continued absence from 
the home, or physical or mental incapacity of a parent. 
. . . ” 10 “Parent” in this definition refers only to a needy 
child’s natural or adoptive parent or a stepparent legally 
responsible for the child’s financial support, as is made 
clear in the legislative history and administrative inter­
pretation of Section 406(a) and in the use of the term 
“parent” elsewhere in Title IY.

1. The Legislative H istory o f  Section 4 0 6 (a )  and 
the C ongressional Concern W ith “ Breadw inners.”

The legislative history on the meaning of the term 
“parent” as it is used in Section 406(a) is not lengthy. 
What does exist, however, is very much to the point. The 
Committee on Economic Security, which drafted the ini­
tial proposal for the Social Security Act, emphasized in 
its report to the President that its various programs were 
designed to create safeguards against “loss of earnings.” 11 
Large numbers of young children were deprived of “a 
father’s support” and needed “financial aid” ; special at­
tention had to be given to “the fatherless and other 
‘young’ families without a breadwinner.” Fatherless fam­
ilies needed a special program because unemployment 
compensation, work relief and other public and private 
job assurance programs for male breadwinners could not 
help them. Only public aid could replace the lost financial

10 The legislation in Alabama, implementing Title IY of the Social 
Security Act, states that “dependent child is defined for purposes of 
ADC in Alabama as it is defined in the Federal Act.” Code of Alabama, 
Title 49, §17(14).

11 The Committee on Economic Security, consisting of Frances E. 
Perkins, H. Morgenthau, Jr., Homer Cummings, Henry A. Wallace and 
Harry Hopkins was created by Executive order of President Roosevelt 
and charged with drafting recommendations for economic security. Presi­
dent Roosevelt endorsed its recommendations and sent them to Congress 
in a Message dated January 17, 1935. See H.R. Doc. No. 81, 74th Cong., 
1st Sess. (1935).



17

support of the missing breadwinner. (H.R. Doc. No. 81, 
74th Cong., 1st Sess. (1935) pp. 2, 5, 35.)

The initial House version of the Social Security Act 
reiterated the viewpoint of the Committee on Economic 
Security. It emphasized that “the core of any social plan 
must be the child,” but did not specifically limit the defi­
nition of “dependent child” to those who lacked a parent. 
H.R. Rep. No. 615, 74th Cong., 1st Sess. 9-10, 24 (1935). 
The Senate Committee on Finance, however, confined the 
definition to those children deprived of a parent’s support 
or care “because a parent of the children has died, or is 
continuously away from home, or is unable, due to physi­
cal incapacity, to provide such support or care” ; the 
Senate Committee report also stressed that it was the 
lack of “a breadwinner” in the family which prompted the 
concern for Title IV.12 S.Rep. No. 628, 74th Cong., 1st

12 Two relevant observations ought to be made: (1) The Senate Com­
mittee, and ultimately Congress, provided separate legislation for families 
without “breadwinners” because it felt families whose fathers were home 
would be provided for through other programs: “Many of the children 
included in relief families present no other problem than that of provid­
ing work for the breadwinner of the family. These children will be 
benefited through the work relief program and still more through the 
revival of private industry. But there are large numbers of children in 
relief families who will not be benefited through work programs or the 
revival of industry”. S. R e p . No. 628, p. 17 (1935). Children whose 
so-called “fathers” have no legal duty of support and who are not given 
support by them on a voluntary basis, one might note, would hardly be 
benefited by a work relief program these “substitute fathers” engaged in. 
(2) The term “support”—meaning financial aid—was used throughout 
the legislative history to refer primarily to support from fathers. Ibid. A 
child who was supported by his mother, though he lacked “care” from 
either parent, was also defined as dependent: “Thus if a baby’s father 
were an imbecile, unable even to care for the bab3r at home, the baby 
would be a ‘dependent child’ even though it had a mother who had a 
job, for the baby would be without normal parental care”. Id., 36. The 
notion was to allow the mother to give her “care” and make up for the 
lack of the father’s support with financial aid. H.R. Doc. No. 81, 74th 
Cong., 1st Sess. (1935) p. 2. “Care” from an unrelated male friend of 
the mother, in the form of emotive kindness or interest, minus financial 
support, was hardly the Congressional concern.



18

Sess. 36, 17 (1935), Discussion on the floor of Congress 
also emphasized the need to replace the earnings of a miss­
ing “breadwinner”. Representative Doughton, in intro­
ducing the proposed bill on the floor of the House of 
Representatives, emphasized the need to aid those families 
“where there is no breadwinner” so that young mothers 
could “care” for their children. 79 C o ng . R e c . 5476, 74th 
Cong., 1st Sess. (1935).

Could Congress have intended that a person who was 
not the natural father of the child, lacked any legal duty 
of support and was not giving support, would fall within 
the definition of “breadwinner”? Surely not. We submit 
that the language of §406(a), when read in the context of 
the underlying legislative history, plainly reveals a pur­
pose to relieve need by making assistance available to chil­
dren deprived of the financial support of their father. To 
deprive children of assistance because of the presence of 
a man who neither owes them a legal duty of support, 
nor is actually giving support, is clearly inconsistent with 
the broad and generous purposes underlying Title IV. 
Whether the man is engaged in sexual relations with their 
mother, or displaying kindness to or interest in the chil­
dren, is totally irrelevant to Title IV. We submit that 
no person should be irrebutably regarded as a parent with­
in the meaning of §406(a) unless there is the assurance 
of financial support provided by the legal obligations im­
posed on natural and adoptive parents, and in some states 
and circumstances, stepparents.

This construction is supported both by common usage 
and administrative practice. The centrality of financial 
support to the notion of a “breadwinner,” so important in 
the legislative history, is made plain in W ebster’s : a “bread­
winner” is “a person who supports his dependents by his 
earnings.” (W ebster, N ew  W orld D ictionary (College Ed.



19

1956). Likewise, B lack, L aw D ictionary (4th ed., 1957) 
defines parent as “the lawful father or mother of a per­
son [or] one who procreates, begets or brings forth off­
spring,” that is, a person hound to support the child.

This is why the United States Department of Health, 
Education and Welfare, in enumerating the children who 
have been “deprived of parental support or care” as 
intended by Congress, has included a child living with 
his natural mother and his stepfather where the latter 
has no legal duty of support. Thus, HEW has stated with 
regard to stepparents:

“A child living in the home of a stepparent who is not 
required by State law to assume a parental role, may 
be included [in the ADC program] on the ground 
that he lacks the support or care of the natural parent 
who is dead or absent. In the absence of legal obli­
gation to assume a parental role, a stepparent is no 
more of a ‘parent’ than any other person acting in 
loco parentis. In these situations, the only safeguard 
to the child’s right to assistance is his eligibility under 
the condition of being deprived of the support or care 
of the natural parent. In States in which the step­
parent is required to assume a parental role, a child 
may be deprived of support or care if the stepparent 
is dead, absent or incapacitated.” HEW, Handbook 
of Public Assistance Administration, Pt. IV, §3412 
(1946) (set out in full in App. A, infra, pp. la-3a.)
(Emphasis added.)

In discussing stepparents, HEW properly distinguishes 
between those stepparents who are required to support 
the children and those who are not. Its discussion of 
adoptive parents—recognizing that upon adoption it is 
the adoptive and not the natural parent who bears legal



2 0

responsibility for support—makes the same distinction: 
death, absence or incapacity of the natural parent does 
not qualify the child as “deprived of parental support” ; 
death, absence or incapacity of the adoptive parent does. 
The legal obligation of support is the key.

As we shall show below, HEW has been even more 
clear in setting forth the intended meaning for “parent” 
in the closely related Section 406(b). Initially, however, 
we consider below the implications of Section 402(a) (11),13 
which also uses the term “parent”.

2. The Meaning of the Word “Parent” as It Is Used 
Elsewhere in Title IV of the Social Security Act.

It is a standard and sensible rule of statutory construc­
tion that words and terms used within the same statute 
(and same subchapter of a statute) will be construed as 
having the same meaning unless a contrary intent is 
clearly indicated by the legislature. The word “parent” 
is used in sections of Title IV other than §406(a) in a 
manner which can only denote a parent with the legal 
duty of support.

Section 402(a) (11), requires that a state plan must:
effective July 1, 1952, provide for prompt notice to 
appropriate law enforcement officials of the furnish­
ing of aid to families with dependent children in 
respect of a child who has been deserted or abandoned 
by a parent.

Obviously, Congress did not intend that a “parent” who 
has no legal duties of support be referred to law' enforce­
ment officials, for the very purpose of such referrals is

13 Formerly §402(a)(10), prior to the 1967 amendments to the Social 
Security Act.



21

to institute non-support proceedings. See, HEW, Hand­
book of Public Assistance Administration, Pt. IV, §§8100- 
8149 (1952).

Section 402(a) (11), aside from being in the same title 
as Section 406(a), has an intimate relationship with Sec­
tion 406(a). The “parent” who makes a child eligible for 
ADC by depriving him of parental support due to deser­
tion or abandonment under §406(a) is surely the same 
parent who is to be reported to appropriate law enforce­
ment officials for desertion or abandonment under §402(a) 
(11). These are, of course, in both instances, parents who 
are legally responsible to the child.14 But, under the 
various substitute-parent policies, none of the “substitute 
parents” who desert their “children” are reported because, 
of course, they are not legally responsible for child sup­
port at all. Nor is there any state which reports “step-

14 Alabama’s criminal statutes, as well as its civil law, requires “fathers” 
to support their “children”. Stepfathers who are not the legal custodians 
of the child, and unrelated males regardless of their sexual activities, are 
not “fathers” required to give support under such statutes. Code of Ala., 
Title 34, §§89-90. Stepfathers who have not taken the stepchildren into 
their home, treated them as members of their own families and demon­
strated an intent to voluntarily assume the relation of “a parent”, have 
no civil support obligations. Englehardt v. Yung’s Heirs, 76 Ala. 534 
(1884); Chandler v. Whatley, 238 Ala. 206, 189 So. 751 (1939); Nicholas 
V. State, 32 Ala. App. 574, 28 So.2d 422 (1946). Obviously unrelated 
males have no civil support obligations of a parent. See App. D for 
other states.

It is also noteworthy that the only “parent” from whose estate a; 
child can inherit under the law of intestate succession and for whose 
wrongful death he can recover damages is his natural or adoptive parent. 
On intestate succession see Williams v. Witherspoon, 171 Ala. 559, 55 
So. 132 (1911); Franklin v. White, 263 Ala. 223, 82 So.2d 247 (1955); 
Code of Ala., Tit. 27, §§5, 6; Atkinson, H a n d b o o k  o f  t h e  L a w  o f  W il l s  
§18 (2d ed. 1953). On recovery for wrongful death see: Code of Ala­
bama, Tit. 7, §123; Speiser, B eco v ery  fo r  W r o n g f u l  D e a t h  §10:8 
(1967). Also, a stepchild can recover workman’s compensation benefits 
only if he was actually dependent upon his stepfather for support. 
Code of Alabama, Tit. 26 §262 (b ) ; 2 Larson, Workman’s Compensa­
tion §63 (1961).



22

fathers” to the “appropriate law officials” except where 
those stepfathers are legally responsible for support.15

Also intimately related to Section 406(a) is Section 
406(b), which authorizes federal matching for money pay­
ments to, inter alia:

. . . the relative with whom any dependent child is 
living (and the spouse of such relative if living with 
him and if such relative is the child’s parent and the 
child is a dependent child by reason of the physical or 
mental incapacity of a parent or is a dependent child 
under Section 407 of this Title. . .). (Emphasis added.)

In other words, if a child is eligible for ADC because one 
parent is dead, incapacitated, absent from the home or 
unemployed, and the child is living with the other parent, 
the federal government will match money payments not 
only for the needs of the child and the parent he is living 
with, but also for the spouse of the “parent” he is living 
with. HEW has formally interpreted the term “parent” 
as used in this section as meaning only “the natural or 
adoptive parent,” and “spouse” as meaning only “the legal 
spouse.” HEW, Handbook of Public Assistance Adminis­
tration, Pt. Y, §3320 (1963).16

16 HEW directs states to give notice regarding only those persons 
“who, under state laws, are defined as parents . . . for the support of 
minor children. . . . ” HEW, Handbook of Public Assistance Adminis­
tration, Pt. IV, §8131 (2) (1952). Appellant Alabama’s own welfare 
regulations state: “Report parents who are legally responsible under 
Alabama law. These are the natural or adoptive parents of a child. A 
natural parent includes the father of a child born out of wedlock, if  
paternity has been legally established. It does not apply to a step­
parent.” Ala. Manual of Public Asst. Adm., Pt. I, Ch. II, p. 36. (Em­
phasis in original.)

16 The relevant portion of Section 3320 reads:
In AFDC, the recipient count for a family may include all eligible 
children, plus the eligible relative with whom, such children are liv­
ing. Effective October 1, 1962, when at least one of the children in



23

Thus, the federal agency charged with the duty of ad­
ministering Title IV has in §§406(b) and 402(a) (11), both 
closely related to §406(a), adopted a construction of parent 
which is limited to persons owing a legally enforceable 
duty of support to the child in question. This is also the 
only definition of parent consistent with common usage 
and legislative history. It is, without doubt, the meaning 
of “parent” under §406(a). The only “parental support” 
a child need be denied to be within the purpose of Title IV 
is the support of a true parent, one who caused his birth, 
legally adopted him, or is otherwise legally responsible 
for his support.

C. T he P u rpose  o f  T itle  IV is C on travened  by ADC E lig ib ility  
R ules w hich  T rea t as a “P aren t” P ersons N ot Legally  
R espon sib le  fo r  Financial S u p p o rt.

The purpose of Aid to Dependent Children programs is 
to provide financial assistance for children who are needy 
and deprived of the financial support of a parent legally 
responsible to provide that support. By its very nature, 
however, a substitute-father rule ignores both financial 
need and parental support.

a family is eligible due to the unemployment or incapacity of his 
own parent in the home, the recipient count may include all eligible 
children and two eligible relatives with whom the children are living, 
if their needs were included and they are married to each other. 
In the context of deprivation by reason of incapacity or unemploy­
m e n t t h e  term “parent” means the natural or adoptive parent. A 
step-parent can be counted as the second eligible adult recipient 
only when lie is the legal spouse of the child’s own parent. (Emphasis 
added.)

The full text of the regulation is set out in Appendix A, p. 4a.
It should be noted that the construction of parent accepted by HEW  

for purposes of §406(b) is in one respect even narrower than the con­
struction argued for by amici in that it does not include stepparents 
even where these are liable for support. For present purposes we may 
pass the validity of this limitation, it being important only that such 
federal administrative construction provides no basis for a definition which 
includes persons not legally obligated to support.



24

Children who are excluded from aid under a substitute- 
father rule are at least as needy as those who are not: 
excluded. If a child were not in financial need after con­
sideration of all his available resources, including contri­
butions from the substitute father (if any), he would be 
ineligible without regard to the substitute-father rule, and 
we do not contend otherwise. Appellants’ Brief seriously 
confuses the eligibility issue of “need” with the eligibility 
issue of “deprivation of parental support.” It is in con­
nection with this confusion, that appellants misuse and 
misinterpret Lewis and Levy, Family Law and Welfare 
Policies: The Case for ‘Dual Systems’, 54 Calif. L. Rev. 
748 (1966). Lewis and Levy do not argue that stepfathers 
and “unrelated men in the house” should be defined as 
“parents” so as to render needy children ineligible for 
ADC on the ground that they are not “deprived of parent 
support.” Their argument is that the income of step­
fathers and unrelated “marital” partners in the house 
should be considered in determining “need,” on the infer­
ence that such income will, in part, be made available to 
the children.17 But a State’s authority to consider all

17 HEW has prohibited even this inference by ruling' that state welfare 
agencies, for purposes of determining “need,” may not assume receipt 
of income that is not actually available to the children. “Effective July 1, 
1967, . . . the State plan must provide that only income and resources 
that are, in fact, available to an applicant or recipient for current use 
on a regular basis will be taken into consideration in determining need 
and the amount of payment.” HEW, Handbook of Public Assistance 
Administration, Pt. IV, §3131 (7). Partly upon the basis of this regula­
tion, a federal court suit was instituted in 1967 seeking a declaration 
that California welfare regulations which computed income of step­
fathers and “men in the house” regardless of the availability of such 
income to the family, contravened the Social Security Act. Thereafter 
California amended its regulations to declare that “to be considered in 
determining the AEDC aid payment, income must, in fact, be currently 
available to needy members of the family in meeting their needs during 
the budget period.” Public Social Service Manual, §44-101, item 17. On 
the basis of this change, the case was declared moot. McPherson v. 
California, N.D. Cal., C.A. No. 46759 (June 29, 1967).

The constitutional basis for prohibiting assumed receipt of income is 
set forth in Welfare’s “Condition X ” ,supra at 1231. That Note con-



25

money a child actually receives from his “substitute 
father,” in order to determine whether that child has 
financial need, is in no way at issue here. The difference 
in outcome between such consideration of income and 
“substitute-father” rules which bar eligibility because of 
“parental” presence is significant. Under the first rule, a 
stepfather or other man with no income would not affect 
eligibility at all, and children with a stepfather with less 
income than the family needs to meet the welfare agency’s 
minimum financial standards for such a family would still 
be eligible for supplementary ADC grants.

No one disputes the desperate financial need of the 
thousands of children denied aid under the various sub­
stitute-father rules. These children also are no less de­
prived of parental support than children who remain 
eligible under substitute-father rules. Their actual father, 
the man legally obligated to support them, is dead or has 
deserted. In his place the substitute-father regulations 
have introduced a new type of father—the “substitute 
father.” The relevant attribute of this “substitute father” 
is that he does not have any legally imposed or volun­
tarily assumed duties and responsibilities to the children. 
He has not adopted the children. He does not have cus­
tody of them. He is not required under law to support

eludes, on the basis of the due process test set forth in Mobile, J. & K.C. 
B. Co. v. Turnipseed, 219 U.S. 35, and Heiner v. Donnan, 285 U.S. 312, 
that:

The substitute father rule . . . violates due process for two reasons. 
First, it creates an arbitrary presumption; there is no a priori 
reason to assume that a man acting as surrogate husband must also 
be acting as surrogate father to children he has no legal duty to 
support. . . . Second, even if experience shows that the presump­
tion is not arbitrary, it still fails because the applicant may not 
disprove the dispositive fact presumed in her case; although the 
mother might establish non-support of her children, she still loses 
her AFDC payments because she is permitted to rebut only the 
fact of illegal relationship and nothing more. Note, Welfare’s “Con­
dition X ,” 76 Yale L.J. 1222, 1231 (1967).



26

them. And the regulations call for no evidence that he 
has voluntarily assumed the legal support responsibilities 
of a true parent.18 No rule which denies essential financial 
assistance only because of such a man can be consistent 
with the purposes of Title IV.

III.
Any D efinition o f “Parent” for Purposes of ADC 

Eligibility W hich Is Not Limited to Persons Under a 
Legal Duty to Provide Financial Support Violates the 
Equal Protection Clause.

A. D efin itions o f  P aren t W hich Include P ersons N ot U nder a 
D u ty o f  Legal S u p p o rt so as to  D eprive  C h ildren  o f N eeded  
A id  A re V oid  U nder the O rd in ary  P rin cip les o f  Equal 
P ro tec tion  B ecause Such D efin itions B ear No R ational 
R ela tion  to  th e P u rp o se  o f T itle  IV  o r  A n y O th er P er­
m issib le  S ta te  Use o f  th e  ADC P rogram .

To survive a challenge based upon the equal protection 
clause of the Fourteenth Amendment, the distinctions im­
plicit in the Alabama substitute-father regulation, and its 
counterparts, must, at a minimum, bear some relation to 
the purpose of the enabling legislation or to some other 
constitutionally permissible governmental purpose. As has 
been earlier stated, the central purpose of Title IV of the 
Social Security Act is to grant financial assistance to 
needy children deprived of their father’s support. By 
denying assistance to children merely because their mother 
may have engaged in sexual relations with some man, the 
Alabama regulation excludes a class of children no less

18 An irrebuttable presumption that the substitute father has assumed 
support responsibilities, so that he would support the children if he had 
income, would be no different from the presumption of receipt of in­
come which HEW  has expressly prohibited. See note 17, supra.



27

deprived of parental support than those aided. Similarly, 
kindred regulations which seize upon the mere presence 
of a man in a household, or a display of transient kind­
ness, or even the marriage of the man to a child’s mother, 
to deny assistance create discriminations inconsistent with 
the purposes underlying Title IV. Only where a person 
has a legally enforcible duty to support a child can he be 
properly regarded as the child’s parent, for only in these 
cases can it be generally assumed that the child enjoys 
prospects of parental support sufficient to differentiate him 
from the class of beneficiaries contemplated under Title IV.

The distinctions involved in the various substitute-father 
rules thus find no support in the purposes underlying Title 
IV. Under the test set forth in Gulf, Colorado, and Santa 
Fe Ry. Co. v. Ellis, 165 U.S. 150, and frequently followed 
thereafter, this lack of “a difference which bears a reason­
able and just relation to the act in respect to which the 
classification is proposed” (165 U.S. at 155) alone renders 
the substitute-father eligibility rules violative of the Equal 
Protection Clause. Subsequently we will show that the 
stronger test of close or special scrutiny is called for here. 
We wish first to demonstrate that the substitute-father 
rules cannot meet even the minimal test of equal protection 
appropriate to cases involving economic regulation, for the 
distinctions created by these rules cannot be justified by ref­
erence to the purpose underlying Title IV, or indeed to 
any other constitutionally permissible government purpose.

The court below viewed Alabama’s substitute-father rule 
as one based on moral condemnation of the sexual behavior 
of the mother. Such a judgment, the court decided, is not 
a reasonable basis for depriving needy children of the 
financial aid intended for them by the Act. 277 F. Supp. at 
39-40. Seeking to avoid the impact of this ruling, Alabama 
repeatedly argues to this court that the regulation is not



based on “moral judgments relating to the sexual behavior 
of the poor . . . (See, e.g.., Appellant’s Brief, p. 11.) 
Rather, Alabama claims that: (1) the regulation serves 
“to shift more of the burden of supporting these [illegiti­
mate] children on the individuals who are responsible for 
their procreation . . (Appellant’s Brief, Ex. J, pp. 108- 
109), and implicitly, that illegitimate births are thereby de­
terred; (2) a man who “has the privileges of a husband” 
(sexual intercourse) should assume responsibility for the 
support of the woman’s children (Appellant’s Brief, p. 11) ; 
(3) a state has an interest in “not giving a monetary advan­
tage to people in illicit relationships which can have the 
effect of deterring marriage” (Appellant’s Brief, p. 14) ; 
and (4) a “substitute-father” regulation allows more money 
to be available for the children who do not have their aid 
terminated because of it (Appellant’s Brief, pp. 14 and 17). 
These, to the knowledge of amici, are the only objectives 
apart from the purpose of Title IY which have been ad­
vanced to justify substitute-father eligibility rules. We 
consider each below.

The argument that a substitute-father regulation shifts 
the burden of support of the children in question to those 
responsible for their procreation is so plainly fallacious 
that little comment is needed. Such a regulation enforces 
financial responsibility on no one. It merely deprives chil­
dren of support, and it does so without inquiry into the 
substitute father’s capacity to support the children or the 
many other factors which bear on the likelihood that such 
denial will induce “voluntary” contribution by the substi­
tute parent. What is more, the person whom Alabama is 
allegedly “holding responsible” by this deprivation is held 
responsible for children whom he did not procreate. The 
men who are responsible for the procreation of children, 
legitimate or illegitimate, are held responsible for their sup­



29

port without regard to the substitute-parent regulation.19 
If on the other hand, one not so responsible wishes volun­
tarily to contribute to the support of a child, his support 
will reduce the child’s need. Consideration of such con­
tributions in determining the child’s need is appropriate and 
indeed required under Title IY. 42 U.8.C. §602(a)(7). 
(See pp. 24-25 supra.)

Nor has Alabama introduced any evidence in support of 
its contention that the substitute-parent rule impedes the 
occurrence of illegitimate births in any way. What little 
evidence is available on the question—that yielded by a 
1957 study of the Mississippi Children’s Code Commission20 
—offers no support for Alabama’s position. The only con­
clusion to emerge from that study is that removal from 
welfare rolls does not reduce the incidence of illegitimacy 
among the families terminated, hardly a conclusion which 
can be adduced in support of Alabama’s position.

Moreover, even if one were to admit that some discourage­
ment of illegitimacy is likely to result from the substitute- 
father regulation, such discouragement would not consti­
tute a constitutionally permissible state interest, because 
the means utilized to achieve that end—termination of aid 
to existing children—conflicts with the purposes underlying 
Title IY.21 As alternative means exist for the discourage­
ment of illegitimacy, there is no justification for state adop­
tion of a device which so plainly frustrates the central pur­
pose underlying Title IV. Indeed, Congress, well aware 
of the rising incidence of illegitimate births, has now re­

19 See, e.g., the Alabama Support and Desertion Laws, Code of Ala., 
Title 34, §§89-104, and the Alabama Paternity Statutes, Id., Title 27, 
§§12(1)-12(9).

20 Reported in  Bell, A id  to  D e p e n d e n t  C h il d r e n  101-105 (1965).
21 This is one of the conclusions of HEW ’s “Flemming Ruling” dis­

cussed supra p. 15.



30

quired state welfare agencies to offer, on a voluntary basis, 
family planning services to all appropriate persons. 1967 
amendments to Title IV; Social Security Act, §402 (a) (15) 
(B) and (C), 42 USC §602(a)(15)(B) and (C). Thus, 
we have in addition to the frustration of purpose which 
clearly results from Alabama’s technique for the control 
of illegitimacy, an express Congressional judgment on an 
alternative means not involving such frustration.22

Even apart from this conflict with the purposes underly­
ing Title IV, the State of Alabama has no constitutionally 
permissible interest in imposing sanctions to deter sexual 
activity where such sanctions are applied only to the poor. 
Clearly, a statute which purported to punish criminally 
sexual activity of the indigent alone would deny equal pro­
tection. It is of no consequence that the statute here in­
volved does not discriminate between the rich and the poor 
on its face. Applicable only to the needy, the burdens of 
ineligibility are visited only upon the poor.23 Cf. Harper v. 
Virginia Board of Elections, 383 U.S. 663. Nor is it a de­
fense that such sexual activity may be the subject of crimi­
nal penalties of general application. In McLaughlin v. 
Florida, 379 U.S. 184, this Court held unconstitutional a 
statute imposing criminal penalties for interracial fornica­
tion even though there existed another criminal statute of 
general applicability prohibiting fornication. We submit

22 Moreover, to the extent that Alabama’s disqualification of families 
in which illegitimate births are likely to occur is based on the unspoken 
assumption that such families constitute undesirable domestic environ­
ments, this assumption is belied by appellant’s own analysis of the charac­
teristics of such homes. See, Appellants’ Brief, pp. 31-34, discussing 
“A Demonstration Project—Strengthening Family Life for ADC Chil­
dren Living in Homes Where Conditions Were Considered Unsuitable,” 
reprinted in the Appendix to Appellant’s Brief at 587.

23 It is also worthy of note that, as anticipated, the consequences of 
implementation of Alabama’s substitute-father policy fell much more 
heavily on negroes than whites. See Appellee’s Brief.



31

that just as the state may not impose additional penalties to 
deter interracial sexual activities, so also may it not im­
pose additional sanctions to deter like activities merely be­
cause the persons engaging in them are indigent. Further 
pointing up the discriminatory character of this additional 
deterrent is the fact that the ADC program, which is con­
ditioned upon need, stands alone among governmental trans­
fer programs in imposing such sanctions on those engaging 
in disfavored sexual activities. All of the programs under 
which disbursements are made without reference to the 
applicant’s actual need, such as Social Security old age pen­
sions, workmen’s compensation, and unemployment insur­
ance, are free of such conditions.

Closely related to the above arguments is Alabama’s 
assertion that a man enjoying “the privileges of a hus­
band” should assume the responsibilities of supporting her 
children. To this, the short answer is again that the sub­
stitute-father rules do not impose responsibility of sup­
port; they deprive children of aid. If a State wishes to 
impose financial responsibilities for child support on those 
enjoying such privileges, the means are readily at hand.

We next address ourselves to Alabama’s contention that 
its definition of father is necessary to avoid placing “a 
premium on illicit relationships.” By this, Alabama appar­
ently means that without its definition ADC will encourage 
illicit relationships by supporting such unions while being 
unavailable to those entering into regular marital relations. 
This position is clearly founded on erroneous premises, 
for Alabama, like most states, does not impose a legal 
duty upon stepparents to support stepchildren unless they 
voluntarily assume that duty. Consequently, adherence to 
the federally contemplated definition of parent as a man 
in loco parentis with the legal duty of support would make 
ADC available even though a marriage is contracted.



32

A man and woman whether living together or not—and 
who are not legally married—who beget offspring, are the 
mother and father of those children. So long as that man 
is in the home, there is no eligibility for ADC because 
there is a man—the father—who has the legal duty of sup­
porting the children. On the other hand, merely because 
the mother and a man not the natural father of the chil­
dren marry, there does not arise—under Alabama law and 
that of most jurisdictions—an obligation on the part of this 
man to support the children. Marriage, thus, does not 
make this man the “father” of the children for purposes 
of ADC because such a support duty is lacking. This is 
why HEW has informed the states (Handbook of Public 
Assistance Administration Pt. IV, §3412):

In the absence of legal obligation to assume a parental 
role, a stepparent is no more of a “parent” than any 
other person acting in loco parentis. In these situa­
tions, the only safeguard to the child’s right to assist­
ance is his eligibility under the condition of being de­
prived of the support or care of the natural parent. 
(Emphasis added.) (Full text set out in Appendix A, 
p. 3a.)

The plain fact is that it is Alabama’s arbitrary defini­
tions of “father,” and the kindred definitions employed by 
other states, which deter marriage. It is quite natural for 
a mother, whose husband is dead or has deserted her, to 
seek new male relations with a view towards marriage. 
However, under the substitute-father rule, whenever 
“there appears to be” a man who is visiting her for the 
purpose of sexual relations, the mother has the burden of 
proving that she is not having sexual relations. Therefore, 
the knowledgeable ADC mother will fear the establishment 
of an open friendship with a male. The rule thus inhibits



33

those initial contacts which may develop into stable mari­
tal unions. Moreover, if the friendship progresses so that 
the mother thinks of marriage with the man, she will again 
be deterred because the rule operates to terminate ADC 
assistance when the marital union is contracted even 
though her new husband may not be willing or able to 
assume support duties, and no legal duty of support by 
him exists.

Indeed, the reason why an Alabama stepfather, by the 
mere fact of marriage to the mother, does not have a legal 
duty to support her children is that Alabama public policy 
has sought to encourage such marriages and not deter 
them through such support liability. The Supreme Court 
of Alabama long ago declared that there is no duty of 
support unless the stepfather voluntarily assumes it. The 
court also declared:

. . . such intention [to assume support responsibility] 
should not be slightly or hastily inferred, and from 
such circumstances as to operate to deter stepfathers, 
by the apprehension of being burdened beyond their 
ability, from continuing and keeping his wife’s chil­
dren in such relation with their mother as to receive 
her constant watchfulness, care, and training, and the 
beneficial enjoyment of her companionship.24 Engle- 
Tiardt v. Yung’s Heirs, 76 Ala. 534, 542 (1884).

Alabama’s substitute-father rule in ADC militates 
against this public policy of encouraging marriage and 
family life. It deters marriage; it deters the opportunity 
for establishing the friendships which lead to marriage. It

24 Similar considerations—a concern with deterring marriages between 
mothers and prospective stepfathers, and proper relations thereafter— 
have influenced legislatures elsewhere against imposing automatic support 
liability on stepfathers. See, e.g., tenBroek, The Impact of Welfare Law 
upon Family Law, 42 Calif. L. Rev. 458, 479 (1954).



34

does this at the same time that it flouts the congressional 
intent to aid the needy child who lacks a father in the home 
with a duty to support him.

Appellants’ final rationale—that the “substitute father” 
regulation allows more money to he made available to the 
children who do not have their ADC aid cut off because 
of it—is, of course, true. It is also irrelevant, for it does 
not speak to the reasonableness of the difference between 
the children classified as ineligible and those classified as 
eligible. Any restraint, however arbitrary and capricious, 
will reduce the number of recipients and so possibly in­
crease the benefits available to the remaining children. To 
say that a discrimination makes it possible to treat those 
favored by it more liberally can hardly be accepted as a 
justification for the practice. Such preference is of the 
essence of discrimination.25 26

The inappositeness of the substitute-father rule as a de­
vice for attainment of the objectives advanced in justifica­
tion by the State of Alabama cannot but raise fears that 
the rule is in fact based on a much more elemental policy 
—simple moral disapproval of the mother’s association 
with a man to whom she is not married. The reason that 
Alabama so desperately seeks to avoid this conclusion is 
that such characterization would reveal the substitute- 
father rule to be nothing more than a substitute for the

25 Nor can Alabama argue that the regulation is needed to save its 
money. Cf. Edwards V. California, 314 U.S. 160, where a statute which 
prohibited persons from assisting indigent non-residents to enter the 
state was held unconstitutional despite California’s effort to justify the
statute on the ground that the influx of indigent persons in need of 
public assistance would create financial problems of “staggering” pro­
portions (314 U.S. at 173). I f  protection of the public purse is not a 
proper justification for the arbitrary denial of legal rights to non-resi­
dents, a fortiori such a purpose cannot justify arbitrary classification of 
residents. See also, Collins v. State Board of Social Welfare, 248 Iowa 
369, 81 N.W.2d 4 (1957).



35

“suitable home” requirement struck down by Secretary 
Flemming in 1961:

I have concluded that when a needy child who other­
wise fits within the Aid to Dependent Children pro­
gram of the State is denied the funds that are admit­
tedly needed to provide the basic essentials of life 
itself, because of the behavior of his parent or other 
relative, the State plan imposes a condition of eligi­
bility that bears no just relationship to the Aid to 
Dependent Children program. I therefore believe that 
this Department should inform the State agencies ad­
ministering Aid to Dependent Children plans that 
eligibility conditions with the effect described above 
are not compatible with entitlement for continued Fed­
eral grants.26

As the United States Congress affirmed, by implication, 
the “Flemming Ruling” in 1962,27 and concomitantly dis­
approved eligibility restrictions based on moral considera­
tions, Federal law would preempt any assertion of a jus­
tifying State interest founded in similar considerations.

These, then, are the fanciful conjectures with which 
Alabama seeks to justify its “substitute parent” regula­
tion: that its arbitrary redefinition of “father” is needed 
to deter illicit relationships (when, in fact, it encourages 
such relationships); that the substitute-father regulation 
is needed to impose support liability of fathers of illegiti­
mate children (when, in fact, no such liability is imposed

26 Notice of this ruling was given to a ll  “State Agencies Administering 
Approved Public Assistance Plans,” including the Alabama Department 
of Pensions and Security, on January 17, 1961 in State Letter No. 452, 
Bureau of Public Assistance, Social Security Administration, Department 
of Health, Education and "Welfare, page 1.

27 See, Pub. L. 87-543, $107(b) (1962), 42 U.S.C. 5604(b).



36

by the regulation); that sexual partners of women should 
support children not their own (when, in fact, the Social 
Security Act is not directed towards regulating the moral­
ity of unrelated males, but to protecting the lives and 
health of needy children); that it is reasonable to discrimi­
nate against some needy children because others are bene- 
fitted by such discrimination.

To deal with such assertions, this Court has ample prec­
edent :

Despite the broad range of the State’s discretion, it 
has a limit which must be maintained if the constitu­
tional safeguard is not to be overthrown. Discrimina­
tions are not to be supported by mere fanciful con­
jecture . . . They cannot stand as reasonable if they 
offend the plain standards of common sense. Hartford 
Steam Boiler Inspection Co. v. Harrison, 301 U.S. 459, 
462.

B. Specia l S cru tin y o f  ADC E lig ib ility  R u les Is R equ ired  
Because o f T h eir D rastic  Effect on  th e A b ility  o f  th e V ery  
P oo rest and M ost H elpless C hildren  to  M aintain L ife  itse lf.

The basic principle governing the application of the 
Equal Protection Clause to state classifications was stated 
by this Court in Gulf, Colorado and Santa Fe Railway v. 
Ellis, 165 TLS. 150, 155, and numerous times since then:

[T]he attempted classification . . . must always rest 
upon some difference which bears a reasonable and 
just relation to the act in respect to which the classi­
fication is proposed, and can never be made arbitrarily 
and without any such basis.

This Court has also stated that classifications will not, 
in the usual instance, be set aside if “any” reasonable state



37

of facts can be found to justify it. Metropolitan Casualty 
Ins. Co. v. Brownell, 294 U.S. 580, 584. We have shown 
that there is no reasonable state of facts which justifies 
the classification here in question. However, we also be­
lieve that the distinctions involved in application of the 
substitute-father rules would violate constitutional guaran­
tees of equal protection, even if some marginal credence is 
given to Alabama’s proffered justifications.

This Court has ‘‘'long been mindful that where funda­
mental rights and liberties are asserted under the Equal 
Protection Clause, classifications which might invade or 
restrain them must be closely scrutinized and carefully con­
fined.” Harper v. Virginia Bd. of Elections, 383 IJ.S. 663, 
670; Griswold v. Connecticut, 381 U.S. 479, 498; Skinner v. 
Oklahoma, 316 U.S. 535, 541. “Strict scrutiny” is particu­
larly required where fundamental personal rights of poor 
and politically powerless minorities have been drastically 
affected by the classification. Cf. Griffin v. Illinois, 351 U.S. 
12, 23-24 (Frankfurter, J., concurring); Harper v. Virginia 
Bd. of Elections, supra; Hobson v. Hansen, 269 F. Supp. 
401, 507-08 (D.D.C. 1967) ;28 see also United States v.

28 In Hobson, Circuit Judge Skelley Wright reaffirmed and explained 
the principle that a classification involving poor and politically impotent 
minorities must be examined more carefully than would be usual because 
it cannot be so readily presumed that a legislature will deal fairly with 
their interests (269 F. Supp. at 507-08) :

This need for investigating justification is strengthened when the 
practice, though not explicitly singling out for special treatment 
any of the groups for which the Constitution has a special solicitude, 
operates in such a way that one such group is harshly and dis­
proportionately disadvantaged. See Griffin v. Illinois, 351 U.S. 12 
(1956) and its progeny . . . See also Harper v. Virginia Board of 
Elections, 383 U.S. 663 (1966) . . .
The explanation for this additional scrutiny of practices which, al­
though not directly discriminatory, nevertheless fall harshly on such 
groups relates to the judicial attitude toward legislative and admin­
istrative judgments. Judicial deference to these judgments is predi­



38

Garolene Products Co., 304 U.S. 144, 152-153, n. 4, in which 
this Court recognized that:

[pjrejudice against discrete and insular minorities 
may be a special condition, which tends seriously to 
curtail the operation of those political processes ordi­
narily to be relied upon to protect minorities, and which 
may call for a correspondingly more searching judicial 
inquiry.

Rarely, if ever, has a case come before this Court where 
the classification demands more careful and close scrutiny 
than this one does. The discrete and insular minority in 
this case is the most helpless and politically impotent in 
our land: young children, impoverished to the point where 
they live at levels even below welfare standards, virtually 
all-Negro.39 They are to be punished for the prejudices of 29

cated in the confidence courts have that they are just resolutions of 
conflicting interest. This confidence is often misplaced when the 
vital interests of the poor and of racial minorities are involved. 
For these groups are not always assured of a full and fair hearing 
through the ordinary political processes, not so much because of the 
chance of outright bias, but because of the abiding danger that the 
power structure . . . may incline to pay little heed to even the 
deserving interests of a politically voiceless and invisible minority. 
These considerations impel a closer judicial surveillance and review 
of administrative judgments adversely affecting racial minorities and 
the poor, than would otherwise be necessary.

Cf. Tick Wo v. Hopkins, 118 U.S. 356; Takahasi v. Fish and Game 
Commission, 334 U.S. 410; Oyama v. California, 332 U.S. 633; Truax 
V. Raich, 239 U.S. 33.

On the general distinction between these lines of equal protection eases 
and cases involving economic regulation (e.g., McGowan v. Maryland, 
366 U.S. 420), see McKay, Reapportionment and Equal Protection, 61 
M i c h . L. R e v . 645 (1963).

29 Whatever view one may take of the appellee’s contention that the 
regulation in question was motivated by intent to racially discriminate 
(and amici believe, on the record of this case, that it was), there is no 
dispute that the regulation has the effect of discriminating against 
Negroes. See the comment of the court below, 277 F. Supp. at 37, n. 7. 
See also Plaintiff’s Exhibits 25, 31, 41.



39

our society or the sins of their parents, but not for any­
thing that they can possibly affect.

The personal rights involved in this case may be based 
on statute, the Social Security Act, but they are never­
theless as fundamental as any of the rights affirmed by 
this Court. At issue is whether or not the children in 
question shall live or starve. (One might note, as the 
chairman of a special Senate subcommittee did recently, 
that “whether the term used is malnutrition, hunger, or 
starvation makes little differences. Eyewitnesses, includ­
ing members of this subcommittee, have observed and re­
ported conditions that this subcommittee has described as 
‘shocking’ and as constituting a national emergency. These 
conditions are not new. . . . Nor are they peculiar to Mis­
sissippi. They exist in other states. They exist in other 
areas of the country.” Senator Clark, Hearings on Hunger 
and Malnutrition in America, Before the Subcommittee 
on Employment, Manpower and Poverty of the Committee 
on Labor and Public Welfare, U.S. Senate, 90th Cong., 
1st Sess., July 11, 12, 1967.) We cannot believe that a 
state regulation which deprives young children of the 
very opportunity for life which the Social Security Act 
was designed to protect involves a lesser right than the 
right to an equal opportunity for education involved in 
Brotvn v. Board of Education, 347 U.S. 483, or the “right 
to procreate” involved in Skinner, supra. In another con­
text, Mr. Justice Douglas asked: “Is the right of a person 
to eat less basic than Ms right to travel which we pro­
tected in Edwards v. California, 314 U.S. 160!” Bell v. 
Maryland, 378 U.S. 226, 255. Clearly, not.30

30 Page 17 of Appellant’s Brief contains the astounding statement 
that “the picture suggested [by plaintiffs below] was that if  a mother 
did not receive her ADC grant, the children starved. As it turned out 
many of the mothers married,” citing an “exhibit” not introduced into 
evidence, Exhibit E to appellants’ Brief. Assuming the exhibit is valid,



40

The numbers of children whose very lives are involved in 
the outcome of this case are large indeed; 18,000 in Ala­
bama; 23,200 in Georgia (Roussaw v. Burson, M.D. Ga.,
C.A. No, 2323, Temporary Restraining Order of March 18, 
1968), at least 10,000 in Louisiana {Griffin v. Bonin, USDC, 
W.D. La., C.A. No. 13,521, per curiam opinion granting a 
Temporary Restraining Order, March 7, 1968), and count­
less more in other states. Should there be any doubt about 
the arbitrary nature of Alabama’s regulation, surely it 
should be most closely and carefully scrutinized.

Such scrutiny will, we are convinced, remove any possible 
impediment to a conclusion of the arbitrary nature of the 
substitute-father regulation. Lacking any rational justi­
fication, the regulation denies essential ADC financial as­
sistance to children who are in fact needy and deprived of 
parental support due to the death or absence of their father. 
The financial needs of these children are no less acute than 
the needs of those who continue to receive aid. Their de­
pendency is no less severe. They are not responsible for 
and cannot control the circumstances of their birth or the 
behavior of their mother. They are the helpless victims of 
an invidious regulation which denies them the equal pro­
tection of the laws guaranteed by the Fourteenth Amend­
ment to the United States Constitution.

several comments are appropriate: (1) Exhibit E, giving statistics on 
marriage in Dallas County, Alabama, alone, shows that out of a grand 
total of 238 cases closed or denied because of the regulation, only 24 
mothers married; (2) no indications of the income status of those 24 
mothers is given; (3) only 19 of the 238 cases were reported as having 
“income sufficient to meet need”. No light is shed by Exhibit E on the 
health conditions of the other 219 mothers (and their many more chil­
dren), except that one may assume that many of them did not have 
income sufficient to meet need during the time ADC was denied to them.



41

CONCLUSION
The Court should hold that substitute-father regulations 

violate the Social Security Act and the Fourteenth Amend­
ment and that States may treat as “parents,” for the 
purpose of ADC eligibility only persons with a legal ob­
ligation to provide support. The decision below should be 
affirmed.

Respectfully submitted,

J ack Greenberg 
J ames M. N abrit, III 
L eroy D. Clark 
Charles S t e ph e n  R alston 

10 Columbus Circle 
New York, New York 10019

Attorneys for the NAACP Legal 
Defense and Educational Fund, Inc., 
and National Office for the Rights 
of the Indigent
E dward Y. S parer 

127 Wall Street 
New Haven, Conn.

P aul D odyk 
B rian  Glick .

401 West 117th Street 
New York, New York 10027

Attorneys for the Center on 
Social Welfare Policy and Law



APPENDIX



APPENDIX A
Excerpts from Parts IV and V of the Handbook of 

Public Assistance Administration, United States Depart- 
ment of Health, Education, and Welfare.

Part IY. Eligibility and Payments to Individuals 
3410-
3499. Factors Applicable to Aid to Dependent Children

11/4/46
3410. Deprivation of Parental Support or Care
3411. Provision of the Act

Title IV, section 406 (a) reads:
“The term ‘dependent child’ means a needy 

child . . . who has been deprived of parental 
support or care by reason of the death, con­
tinued absence from the home, or physical or 
mental incapacity of a parent . . . ”

3412. Interpretation
This provision sets forth the two eligibility factors, 
“need” and “deprivation of parental support or 
care,” on which Federal participation is conditioned. 
The provision requires that both need and depriva­
tion of parental support or care exist in the indi­
vidual case but does not require that an affirmative 
showing be made that a causal relationship exists 
in the individual ease.
Under the act, the term “deprived of parental sup­
port or care” is interpreted to encompass the situa­
tion of any child who is in need and otherwise eligi­
ble, and whose parent either has died, has a physical



2a

or mental incapacity, or is prevented by continued 
absence from providing maintenance, physical care, 
and guidance for his children. In this interpreta­
tion “parent” may mean either the father or the 
mother. Since the interpretation relates to parental 
support or care, it is equally applicable whether the 
parent was the chief breadwinner or devoted him­
self or herself primarily to the care of the child.
Situations within the scope of the term “deprivation” 
are as follows:
1. Children Living With Both Natural Parents

Children may be included when living with their 
natural mother and father, if they are deprived 
of parental support or care by reason of the 
incapacity of either parent.

2. Children Living With Either Father or Mother

Children may be included when deprived of sup­
port or care by reason of the death, incapacity, 
or continued absence of either the mother or 
father.

3. Legally Adopted Children
Legally adopted children are included on the 
basis of deprivation of parental support or care 
due to the death, continued absence, or inca­
pacity of one or both of the parents who adopted 
the child, rather than on the basis of deprivation 
of the natural parent’s support or care. This 
interpretation recognizes the current develop­
ment of social legislation designed to effect com­
plete substitution for the natural parents, in the

A p p e n d ix  A



3a

relationship sustained by a child and the parents 
who adopt him.

4. Children Living in Home of Stepparents
A child living in the home of a stepparent who 
is not required by State law to assume a parental 
role, may be included on the ground that he 
lacks the support or care of the natural parent 
who is dead or absent. In the absence of legal 
obligation to assume a parental role, a step­
parent is no more of a “parent” than any other 
person acting in loco parentis. In these situa­
tions, the only safeguard to the child’s right to 
assistance is his eligibility under the condition 
of being deprived of the support or care of the 
natural parent. In States in which the step­
parent is required to assume a parental role, a 
child may be deprived of support or care if the 
stepparent is dead, absent, or incapacitated.

5. Children of Unmarried Parents
Children of unmarried parents may be included 
within the scope of title IY on the same basis 
as children of married parents. The act provides 
for the use of aid to dependent children as a 
maintenance resource available on equal terms 
to all children who meet eligibility conditions.

6. Unborn Children
When the mother’s pregnancy has been deter­
mined by medical diagnosis, Federal participa­
tion in payments on behalf of an unborn child 
may be claimed on the basis of the same eligibility 
conditions as apply to other children.

A p p e n d ix  A



4a

Part Y. Fiscal Operations and Accountability
3000-
3999. Accountability for Federal Funds Advanced

8 /5 /6 3
3300. Fiscal Accounting by State Agencies
3320. Recipient Count

The quarterly statement of expenditures and recov­
eries which is required for OAA, AB, AFDC, APTD, 
and AABD under title XYI must include, as a part 
of the basis for computing the amount of Federal 
participation in such expenditures, the number of 
eligible recipients each month. The procedures for 
determining the recipient count is set forth below. 

* # #
In AFDC, the recipient count for a family may in­
clude all eligible children, plus the eligible relative 
with whom such children are living. Effective Octo­
ber 1, 1962, when at least one of the children in a 
family is eligible due to the unemployment or in­
capacity of his own parent in the home, the recipi­
ent count may include all eligible children and two 
eligible relatives with whom the children are liv­
ing, if their needs were included and they are mar­
ried to each other. In the context of deprivation 
by reason of incapacity or unemployment, the term 
“parent” means the natural or adoptive parent. A 
step-parent can be counted as the second eligible 
adult recipient only when he is the legal spouse of 
the child’s own parent. The conditions governing 
deprivation due to unemployment or incapacity of 
a parent are set forth in IV-3423 and IV-3424.

A p p e n d ix  A



5a

APPENDIX B
Alabama’s Substitute Father ADC Eligibility Rules.

1. The Rule Prior to the Decision Below

Pt. I, Cli. II, Subd. V (A) of the Alabama Manual of
Public Assistance Administration:
V. Child Ineligible if There Is a Father or Mother Sub­

stitute
A. Father Substitute: An able-bodied man, married or 

single, is considered a substitute father of all the 
children of the applicant-recipient mother living in 
her home, whether they are his or not, if: (1) he 
lives in the home with the child’s natural or adop­
tive mother for the purpose of cohabitation; or (2) 
though not living in the home regularly, he visits 
frequently for the purpose of cohabiting with the 
child’s natural or adoptive mother; or (3) he does 
not frequent the home but cohabits with the child’s 
natural or adoptive mother elsewhere. Pregnancy 
or a baby six months or under is prima facie evi­
dence of a substitute father as indicated above.
When there appears to be a substitute father, dis­
approve an application or terminate aid unless the 
mother establishes that one of the following situa­
tions exists: (1) she and/or the substitute father 
meets the criteria of disability as described under 
“Physical or Mental Incapacity” ; (2) the substitute 
father is no longer living in the home or visiting 
the home for the purpose of cohabiting with her; 
or (3) the relationship is broken between the mother 
and a man who has not been living in the home or 
frequenting the home.



6a

Evidence showing that the relationship has been 
discontinued includes proof such a s : the father has 
married another woman; or he is in a public insti­
tution; or, if he has been living in the home, he 
is now living at another address; or a notarized 
statement by the mother and substitute father that 
they have discontinued their relationship. This evi­
dence must be corroborated by at least two accept­
able references in a position to know. Examples of 
acceptable references are: law-enforcement officials; 
ministers; neighbors; grocers. If needed, the mother 
will be given 30 days to present her evidence be­
fore her application is disapproved or her case 
closed unless additional time is needed. If addi­
tional time is needed, another 30 days may be al­
lowed. In no instance shall more than 60 days be 
allowed. Although the burden of proof rests with 
the mother, the worker will assist in any way pos­
sible to help the mother establish that she has 
broken a relationship. Also, before rejecting an 
application or closing a case, the worker will talk 
with the mother about reasons for the agency’s ac­
tion and about her right to reapply at any time that 
she does break the relationship. If the family is 
otherwise eligible, the case should be recertified for 
aid immediately.

A p p e n d ix  B



7a

2. Tlie Rule Prior to this Court’s Dissolution of its Stay of 
the Order Below

Administrative 
Letter No. 2373 
November 13, 1967

STATE OF ALABAMA
DEPARTMENT OF PENSIONS AND SECURITY 

Montgomery
To: County  D ibectors oe P ensions  and S ecurity

S u b je c t : Discontinuation of the Substitute Parent Policy 
—Effective Immediately

In line with the decree issued by the United States Dis­
trict Court for the Middle District of Alabama, Northern 
Division, the substitute parent policy is no longer in effect. 
This change deletes Item Y which appears on pages 11-24, 
25, 25a, and 26 of Part I, Manual for Administration of 
Public Assistance. It also deletes all references to this 
policy that appear elsewhere in the manual.

In the event there is no appeal, we will send you the 
manual revision incorporating this change at an early 
date. In the meanwhile, in addition to the changes re­
ferred to above, provisions in the first paragraph of Item 
IV on page 11-24 are being amended as follows:

If children live in the home with two able-bodied 
parents, ADC cannot be given even though there may 
be no source of income. “Parent” in this instance 
refers to:
1. A legal parent.
2. A stepfather or stepmother.
3. A man living in the home who assumes the role of 

father whether or not married to the mother. In

A p p e n d ix  B



8a

such case consider him the father of all the chil­
dren in the home.

3. The Rule Presently  in Force in Alabama Under the 
District Court’s Order

Administrative 
Letter No. 2402 
February 9, 1968

STATE OF ALABAMA
DEPARTMENT OF PENSIONS AND SECURITY 

Montgomery
To: C ounty  D irectobs oe P ensions  and S eoueity

S u b je c t : Administrative Letter No. 2398, “Substitute 
Parent Policy,” January 31, 1968

This will confirm and refine the definition of parent as 
given in the administrative letter referred to above and 
in our telephone calls to you on January 31, 1968. If chil­
dren live in the home with two able-bodied parents, ADC 
cannot be given even though there may be no source of 
income. “Parent” in Item “IV” on page 11-24 of Manual 
for Administration of Public Assistance, Part I, is now 
defined as:

1. A legal parent. This includes a father who has 
legitimated his child and a father of a child whose 
paternity has been judicially determined.

2. A stepparent. A woman or man who has estab­
lished a common-law marriage with a child’s parent 
comes within the definition of stepparent. Both 
parents must be free to contract matrimony and 
must represent themselves in the community as 
man and wife in order to establish a common-law 
marriage.

A p p e n d ix  B

# # #



9a

APPENDIX C

Other Substitute Father ADC Eligibility Rules.1

I. The Character of the Rules2
A. Rules which require both presence in the family 

home and an undefined “father-role” which need, not 
include support of the children.

1. Arizona (“head of household”)
2. Idaho
3. Indiana (“partially assume” father-role)
4. Kentucky
5. Oklahoma

B. Rules which require presence but not “father-role

1. New Hampshire
2. New Mexico
3. South Carolina
4. Texas
5. Utah (but eligible if “stable non-marital union”)
6. Virginia

1 No definitive compilation of substitute father ADC eligibility rules 
was available to amici. Welfare regulations and manuals, as a general 
rule, are not published. In many cases, access to the regulations and 
manuals is most difficult to achieve. This Appendix is based on the 
state welfare manuals in the Library of the Columbia University School 
of Social Work and correspondence from state welfare officials to the 
Center on Social Welfare Policy and Law. These sources provided no 
information on Missouri and Tennessee. We believe this compilation is 
otherwise complete.

2 This breakdown categorizes the rules as to two general factors— 
whether or not the “substitute father” need be present in the family 
home, and whether or not he occupies an undefined “father-role” towards 
the children, which need not include providing them with support. The 
compilation that follows is alphabetical by state.



A p p e n d ix  C

C. Rules which require “father-role” but not presence.
1. D. C.
2. Mississippi

D. Rules which require neither “father-role” nor pres­
ence.
1. Alabama
2. Arkansas
3. Georgia
4. Louisiana
5. Michigan
6. North Carolina (if one illegitimate child)

II. The Texts of the Rules.

1. Arizona. Family Services Manual, § 3-403.6 (D).
D. The Adult Male in the Rome: State Law defines a 

Dependent Child as “Dependent child means a needy 
child under the age of eighteen years who has been 
deprived of parental support or care by the rea­
son of death, unemployment of the supporting parent 
as defined and prescribed by federal statutes relat­
ing to welfare, continued absence from the home, or 
physical or mental incapacity of a parent, and whose

If an adult male is living in a household and acting 
as head of the household, the children in the fam­
ily are not deprived of parental support because of 
the death or continued absence from the home of 
the father. Depending on the circumstances, the 
children might be deprived of parental support of 
the father because of physical or mental incapacity



11a

of the father or because of unemployment of the 
father.
Whenever an adult male is found to be living in an 
ADC household and acting as head of the house­
hold, the eligibility of which depends upon the father 
being absent from the household, the ADC grant 
will be immediately suspended. The grant will not 
be reinstated until “deprivation of parental sup­
port” as an eligibility factor is again established 
and verified.
When the caseworker establishes the presence of an 
adult male in the home of an ADC applicant or 
recipient and as the result rejects the application 
or discontinues an active case, and the person whose 
application was rejected or grant discontinued makes 
a new application or requests reinstatement, on the 
basis the unrelated adult male is no longer in the 
home, the new investigation of deprivation of pa­
rental support must determine without doubt the 
man in question has removed himself completely 
from the household. It is suggested that such cases 
be referred to the Special Services Unit for in­
vestigation.

2. Arkansas. Dept of Public Welfare Manual, §2813 
(July 1966).

When a step-parent resides in the home, or when a 
parent maintains a stable non-legal union, “continued 
absence of a parent from the home” can no longer be 
considered as reason for deprivation. A stable non- 
legal union is presumed, even though a father is not 
living continuously in the home, where the mother

A p p e n d ix  C



12a

affords the privileges of a husband to a man and 
there is a continuing relationship. Evidence of such 
a relationship may be:

1. Frequent visits by the man to the home of the 
mother.

2. Frequent appearances of the man and mother to­
gether in public.

3. Repeated pregnancy by the same man.
4. Joint charge or bank accounts or privilege of 

mother to charge to man’s account, joint purchases.
5. Substantial gifts to the family by the man.
6. Address of the family given as man’s residence to 

employer, on driver’s license, or with license au­
thorities.

7. Purchases on installment made by man if he has 
delivery made to the mother’s address or any ar­
rangement made with the man’s creditor to have 
his bills for any unpaid balance on his purchases 
sent to him at mother’s address.

8. Delivery of man’s mail to mother’s address.
9. Declaration of children and/or mother as the de­

pendents of the man on W-4-.
One of the above facts may not be sufficient evidence 
of the existence of a stable non-legal union. All pos­
sible evidence will be obtained by the county depart­
ment and the decision that a union exists or does not 
exist will be made. (Emphasis in original.)

3. District of Columbia. Handbook of Public Assistance 
Policies and Procedures, EL. 4.5 (IV) (C-E) (July 
1965)

A p p e n d ix  C



13a

C. Relationship with a “Substitute Parent”.
1. Assistance must be denied when the mother and 

children share the family’s living quarters with 
a man who maintains the role normally occupied 
by a husband and parent, unless the man is in­
capacitated.
Any man who is not a close blood relative of the 
mother, i.e., father, grandfather, brother or son, 
who shares the family’s living quarters, is pre­
sumed to be in this relationship, unless clear evi­
dence is presented to the contrary.

2. Assistance must be denied when the mother con­
tinues her relationship with her husband or has 
a continuing association with a man (unless he is 
incapacitated) whose relationship to the family 
is that of husband and father even though he 
maintains an address elsewhere.

This policy also applies when a man maintains such
a relationship with the family even though he main­
tains an address elsewhere.
Social Worker’s Responsibilities. In carrying out
this policy the Social Worker will:
1. Investigate or refer to Investigation Service any 

evidence of a relationship with a man;
2. Evaluate the nature of his relationship to the 

family, when such a person is found;
3. Immediately terminate the payment when the man 

is living in the home or otherwise continuing a 
family relationship.

A p p e n d ix  C



14a

D. Some facts to be considered in determining that the 
man (not living in the home) has a relationship with 
the children similar to that of father and child are:
1. Visits the home to see the children;
2. Contributes to the support of the children;

3. Exercises parental control and guidance;
4. Donates gifts to the children;
5. Cares for the children when the mother is ill 

or absent;
6. Is the father figure in the home;
7. Acts “at home” with the children by dressing, 

feeding, carrying, or fondling them;
8. Take the children on walks, excursions and the 

like;
9. Shows concern about the health of the children 

and uses health facilities in the community to 
restore the health of the children;

10. Provides clothing and other necessities for the 
children;

11. Shows interest in the educational progress of 
the children, such as by attending- PTA meet­
ings, visiting school about the children, helping 
the child with school work;

12. Responds in time of crisis, such as illness of 
children, child in difficulty with the police.

E. Children whose mother has a conjugal relationship 
with a man outside the home may be included in the

A p p e n d ix  C



15a

AFDC Program when there is a clear dissociation 
from the normal family relationship as defined above, 
and provided they are otherwise eligible.
All resources and possibility of support from the 
man concerned must be determined.

4. Georgia. Manual of Public Assistance Administra­
tion, Part III, §V, p. 7 (June, 1964).

(5) Substitute Father: A man living in common-law 
relationship with a woman is considered a substitute father 
of any child had by that woman, or any child that woman 
has had by another man. Further, a man living in com­
mon-law relationship with a woman is responsible for 
the support and care of his and her children, regardless 
of whether or not he is married to another woman. Regu­
lations place the same responsibility on this man as if 
he were the legal husband. The rules for establishing 
deprivation are the same as those used in establishing it 
in a legal-father situation.

A common-law relationship is considered to exist when 
a man, married or single, lives in the home with the A/R 
for the purpose of cohabitation or, if not living in the home 
regularly, he visits frequently for the purpose of living 
with or cohabiting with the applicant.

Pregnancy or a newborn baby is prima facie evidence 
of a substitute father. Only in situations where strong, 
convincing evidence is submitted, proving that the substi­
tute father is no longer in the home and has discontinued 
his relationship will the factor of deprivation be estab­
lished. Such evidence would include proof that the man 
has moved to a distant place, or has been admitted to a

A p p e n d ix  C



16a

public institution. The burden of proof rests on the mother. 
Testimony of the applicant must be corroborated by law- 
enforcement officials, friends, neighbors, ministers, grocery- 
men and similar sources. All evidence in cases involving 
substitute fathers is submitted to the County Board for 
determination of whether or not there is a substitute 
father and whether or not a common-law relationship 
exists.

5. Idaho. Letter from Harold H. Smith, Director of 
Social Service, Idaho Department of Public Assist­
ance (Dec. 7, 1966), in response to inquiry from 
Amicus Center.

"In regard to the Aid to Dependent Children program, 
the Department defines a parent as follows: ‘A parent, 
as used in connection with ADC, is considered to 
mean either a step, natural, or adopted father or 
mother of the child. A child living with a natural 
parent and a step parent, or with a natural parent 
and some other person acting as a parent, is con­
sidered to be living with parents.’ ”

6. Indiana. Public Assistance Manual, III-C-15.
13. Substitute Father in the Home

There may be instances where a mother, who 
applies for or receives ADC for her children, 
has established a relationship with a man (who 
may or may not be the natural father of the 
children) and there is reason to believe that 
this man is living in the home with the mother 
and the children, partially assuming the role of 
husband and father. If it is established that

A p p e n d ix  C



17a

such a man lives continuously in the home, the 
family is not eligible for ADC.
When such a condition is suspected or estab­
lished, the worker shall explain to the mother 
and, if possible, to the man involved, this factor 
of eligibility, and provide them with whatever 
social services are appropriate for remedying 
the situation. There may be legal bars to a 
desired marriage between the man and woman 
which could be removed. If the man is not the 
father of any of the children and cannot or will 
not assume responsibility for their support, the 
mother may be able to use casework help to 
terminate her relationship with the man. If the 
man is the alleged father of any of the children, 
and marriage is not feasible, steps should be 
taken to establish paternity. See Chapter VIII, 
Section A for further guides for social services.
When the presence of a man in the home is sus­
pected but not established by admission of the 
mother and/or the man involved, the worker is 
expected to take whatever investigative steps 
are indicated to establish the facts, and to record 
the supporting evidence. This requires being 
particularly alert in observing conditions in and 
around the premises, getting the names and ad­
dresses of all adults found in the home on the 
occasion of the worker’s visit, and learning their 
relationship to the family. It may mean checking- 
employment records, credit accounts with busi­
ness firms, landlord’s records, interviewing 
reputable persons in the community. It may

A p p e n d ix  C



18a

also require checking by means of the license 
number if an automobile is parked regularly in 
front of the ADC home. The caseworker shall 
also observe the names on apartment mail boxes 
and identifying door bells.

7. Kentucky, Public Assistance Manual of Operation, 
§2214(G) (Nov. 1965).
O. Child, living with either parent and person un­

related hy marriage in an established family rela­
tionship. The child is considered as deprived of 
parental support only if incapacity exists.
An established family relationship is defined as a 
stable non-legal union in which the parent lives 
with a person of the opposite sex wiio occupies 
the role of spouse of the parent and occupies a 
paternal role with respect to the children in the 
family. In determining the existence of such a 
relationship, the following guides are used:
1. Presence of the person in the home.
2. Frequent appearances of the man and woman 

in public as a couple and of the couple ac­
companied by the children.

3. Repeated pregnancy on the part of the woman 
by the same man.

4. Joint charge or bank accounts or joint pur­
chases of household items or items for the 
benefit of the children.

5. School registration of a child listing name 
of person as parent.

A p p e n d ix  C



19a

6. Observation of care or control of child exer­
cised by the person.

7. Rental agreement made by the individuals 
as a couple.

8. Address of family given as person’s home 
address on drivers license, to employer or 
other third persons.

9. Declaration of children and/or parent as de­
pendents for income tax purposes.

10. Hospital admissions of parent or child under 
the name of person.

Presence of one of the above factors does not 
necessarily prove an established family relation­
ship, but if after careful analysis of the total 
home situation, circumstances indicate that an es­
tablished family relationship exists, the child(ren) 
shall not be considered deprived of parental sup­
port and the case will be suspended, discon­
tinuing the money payment.
Eligibility for the money payment cannot be re­
established until the individual occupying the 
parental role has been absent from the home for 
30 days or more. However, services will continue 
during the suspension period for the purpose of 
making a plan for the child (ren). If at the end 
of 60 days the established family relationship con­
tinues to exist, the case will be discontinued.

8. Louisiana. Manual of Policies and Procedures, 
§§2-740 (Dec. 1960) and 2-742.1 (May 1964).

A p p e n d ix  G



20a

A p p e n d ix  C

2-740 D eprivation D efin ed

A. Persons in relation 
be established
When child lives 
with:

Rev.* (1) Both parents 
living in mar­
ital union (le­
gal or nonle- 
gal).

(2) One p a r e n t  
not living in 
marital union:
(a) Except 

for minor 
unmar­
ried 
mother

(b) Minor un­
married 
mother

to ivhom deprivation shall

The condition of deprivation 
shall be established in rela­
tion to:
(1) One parent in the home 

or spouse with whom 
the parent in the home 
is maintaining a non- 
legal union. (Parent 
means legal parent in 
home, legal stepparent 
in home, or nonlegal 
spouse in the home or 
with whom the parent 
in the home is maintain­
ing a nonlegal union.) 
(See 2-742.1).

(2) Absent parent:

(a) Absent parent— 
This is applied to 
the latest absent 
spouse (legal or 
nonlegal) of parent 
in the home.

(b) Absent parent of 
child and parents 
of minor unmar-



21a

A p p e n d ix  C

ried mother, as pro­
vided in Section
2-749.

(3) Neither par- (3) Absent legal parents
ent. (as defined in Section

2-741.)

C. Child living with both parents
A child who lives with two parents, or a parent 
and a stepparent, or a parent and his nonlegal 
spouse, does not meet the condition of depriva­
tion unless one of these persons is incapacitated 
as provided in Section 2-751A. (Emphasis in 
Original.)

2.742.1 A. Definition of nonlegal marital union
A nonlegal marital union exists between a
parent of an ADO child and a person of the 
opposite sex when they are not married to each 
other and there is sufficient evidence to con­
clude that:
(1) They live together as husband and wife 

in a common household,
OR

(2) Their relationship is of a marital nature 
although they do not live together in a 
common household.

B. Nonlegal marital union as related to depriva­
tion of parental support
In Section 2-740, Deprivation Defined, the defini­
tion of parent in relation to whom deprivation



22a

mast be established includes the spouse with 
whom the child’s parent in the home is main­
taining or has maintained a nonlegal marital 
union.
Therefore, when the parent applying for or re­
ceiving ADC is maintaining or has maintained 
a nonlegal marital union as defined above, 
deprivation of parental support must be estab­
lished in accordance with 2-740 B. in relation 
to this parent and this parent’s latest nonlegal 
spouse.
If the parent has maintained a nonlegal marital 
union in the past, a child in the home shall be 
considered deprived of parental support only 
if there is evidence from which it is concluded 
that the nonlegal spouse of the past is dead 
or continually absent from the home and there 
is no nonlegal spouse at present.
If the parent is currently maintaining a non­
legal marital union, a child in the home shall 
be considered deprived of parental support only 
if incapacity of one or both adults (parent and 
parent’s nonlegal spouse) is established. (Non­
legal marital union as applicable to suitable 
home, see 2-734.)

C. Evidence of a nonlegal marital union
Examples of evidence listed below are not ex­
clusive. In a given case situation, evidence other 
than the examples listed may be sufficient to 
conclude that the ADC parent is or is not main­
taining a nonlegal marital union.

A p p e n d ix  C



23a

(1) Maintaining a common household. A com­
mon household is being maintained by two 
or more persons when they share shelter 
space, food or furnishings. A man’s em­
ployment, such as construction work, mer­
chant marine, etc. may cause him to be 
away from the household for long periods 
yet he is considered a member of the house­
hold if this is the place that he considers 
home and to which he returns periodically.
When the parent and another adult of the 
opposite sex who are not married to each 
other acknowledge that they are maintain­
ing a common household, this is sufficient 
evidence that a nonlegal marital union 
exists.
When they are referred to in the community 
at large as living together as husband and 
wife, a nonlegal marital union shall be 
presumed to exist.
Any of the following or similar evidence 
is sufficient to conclude that the couple are 
maintaining a common household.

The man’s employer, fellow employees or 
friends pick him up at the woman’s ad­
dress.
The man gives the woman’s address as 
his to his employer or on any document, 
such as car license, charge account, etc.
The family’s telephone is listed in the 
man’s name or is listed under the woman’s 
first name and his last name.

A p p e n d ix  C



24a

(2) Repeated pregnancies by the same man to 
whom the mother is not married

This is conclusive evidence a nonlegal mari­
tal union did exist. At the time of applica­
tion, deprivation of parental support shall 
be considered as established only when there 
is definite evidence that the marital rela­
tionship has not existed for a period of at 
least six months, or there is positive evi­
dence of a genuine separation (though for 
less than six months) and severe hardship 
exists. (See 2-742; applies to applicants 
only.)

If the nonlegal spouse continues to visit 
the home, it shall be presumed that the 
nonlegal marital union currently exists, un­
less there is acceptable evidence that his 
visits are to see the children he has acknowl­
edged as his. In such a case, visits to the 
home should be made at hours indicating 
interest only in the children rather than 
continued interest in the mother.

(3) When a legally married man living ivith 
his legal family is visiting

If a man who is legally married and living 
with his legal family is visiting an ADC 
mother in her home or meeting her else­
where, a nonlegal union must be presumed 
to exist.

A p p e n d ix  C



25a

(4) Other facts which are sufficient basis for 
questioning whether a nonlegal marital 
union exists
Any one or more of the facts listed below 
is sufficient basis for questioning that a 
nonlegal marital union exists between the 
mother and a man to whom she is not 
married, and who is not her blood relative, 
U nless there is positive evidence that a 
nonlegal marital union does not exist.
The facts listed below as sufficient basis for 
questioning whether a nonlegal marital 
union exists are not necessarily of equal 
weight. When one or more of these facts 
exist, there may or may not be a logical, 
reasonable, acceptable explanation which 
along with other evidence may be sufficient 
to conclude that a nonlegal marital union 
does not exist. On the other hand, one fact 
alone or a combination of facts, when there 
is no such explanation, may be sufficient to 
conclude that a nonlegal marital union does 
exist. In any case, the decision shall be 
made on the basis of evaluation of all evi­
dence: the fact or facts which cause ques­
tion, the explanation of these facts and all 
other information relating to existence or 
nonexistence of a nonlegal marital union.

Regular contributions (cash or other) to 
the family by a man who does not make 
such contributions through court order.
Joint charge or bank account in the name 
of the children’s mother and a man.

A p p e n d ix  C



26a

Mother has privilege to charge to a man’s 
account.
Purchase by man for delivery to the 
mother’s address.
Arrangement by man for bills for unpaid 
balance on his installment purchase to be 
sent to the mother’s address.
Any mail addressed to the man at the 
mother’s address.
Joint purchases by the mother and a man.
Substantial gifts by a man to the family.
Payments by a man of rent and/or util­
ities for the family’s home.
Payments or signing of lease by a man 
on home in which the family lives.
Frequent presence of a man in the home, 
especially at meal-times, unconventional 
hours or overnight.
Presence of a man’s clothes or other per­
sonal possessions in the home.
Police records linking the mother and a 
man together.
A man has a key to the home.
A man has free access to the home.
Address of the family given by a man as 
his address to a third person, such as 
employer, license bureau (driver’s or 
other), loan company, charge accounts, 
LSES, etc.

A p p e n d ix  C



27a

Listing by a man of the mother and/or 
children as dependents for income tax 
purposes or on his insurance policy.
Frequent meetings of the mother and a 
man outside the home.
Statement of references that the mother 
and a man live as husband and wife when 
evaluation of the references’ association 
with the family and their reasons for giv­
ing information establishes that it is ac­
ceptable.

D. Making decision as to existence of a nonlegal 
marital union
The decision as to whether a nonlegal marital 
union does or does not exist shall be based on 
evaluation of total information secured. When 
there is contradictory information, no one piece 
of evidence is sufficient for a decision, unless it 
is irrefutable. When there is contradiction be­
tween the client’s statement and statements of 
others, the worker shall evaluate this against 
his observations and documentary evidence 
available.

9. Michigan. Manual of Policies and Procedures, Part 
B, Item 259(2) (April 1963).
In the case of an ADC parent living in stable union 
with a person to whom he or she is not married, or 
in which the parent has developed a continuing rela­
tionship not involving a common living plan, but the 
partner is exercising the role of parent to the children

A p p e n d ix  C



28a

or the rights of a spouse to the client, the following 
principles apply. The bureau’s service plan is to be 
aimed at helping* the client legalize the relationship 
or terminate it. The client is to be permitted 30 days 
in which to marry. If there is an impediment to 
marriage, this means 30 days in which to retain an 
attorney and file a bill of complaint for divorce 
preliminary to remarriage. The client must continue 
to cooperate by taking each legal step as it becomes 
possible, and no more than 6 months may be per­
mitted to get the case on the court docket.
If legal action has begun, but is not completed, the 
client may continue to maintain a common living 
plan or social contacts with her partner when termina­
tion of the common living plan is not required by 
the court as a condition of legal action. In the case 
of illegal cohabitation of an applicant, the grant may 
not be opened unless the client has actually married 
the partner where there is no impediment to such 
marriage, or has begun steps toward legalization as 
discussed in the second paragraph on this page where 
an impediment exists, or the bureau is satisfied that 
the relationship has been terminated.
If legal action is not begun in 30 days, the client 
must terminate all social and financial contacts with 
the partner as a condition of eligibility. This does 
not prohibit payment of voluntary support for the 
children by their natural father, provided such pay­
ments are made by mail, and the bureau is kept 
fully informed.
Such situations discussed in the preceding para­
graphs may raise questions of financial need, rather

A p p e n d ix  C



A p p e n d ix  C

than a question of suitability, and the bureau must 
be careful to distinguish between them. Refer to 
Item 319 for discussion of factors related to deter­
mination of need.

10. Mississippi. Manual of Policies and Procedures for 
Administration of Public Assistance, §1), p. 4512 
(Sept. 1966).
In determining deprivation of parental support or 
care, the term “parents” means more than the child’s 
own parents (natural parents). A child will not be 
considered deprived if he lives in the home with the 
persons listed below if they are able-bodied. These 
persons are:
1. His own (natural) parents.
2. His own parent and a stepfather or stepmother.
3. His own parent and a man or woman who lives 

in the home and maintains a marital relationship 
with the child’s parent, even though he or she is 
is not married to the child’s own parent, or is not 
the parent of any of the children in the home.

4. His own parent who maintains a continuing rela­
tionship with a man who does not live regularly 
in the home but who is regarded by the mother 
as her husband and by the children as their father. 
The man may be the father of one or more of the 
children, or of none of them, but assumes the 
father-role for them.
That is, the children look to the father-person for 
direction and discipline, for some financial sup­
port, and for the assumption of other duties which 
a father ordinarily performs in the home.



30a

11. New Hampshire. Manual of Policies pp. 47-48 (July 
1966).
Deprivation of Parental Support or Care (PSA 
167:6e). The law states that a child must be needy 
and deprived of parental support or care by reason 
of death, continued absence from the home, or physi­
cal or mental incapacity of a parent. Parent means 
either the father or the mother, regardless of whether 
the parent was the chief breadwinner or devoted one’s 
self primarily to the care of the child. To insure the 
best possible home setting for the child, no unrelated 
male is permitted to live with an ADC family, nor 
shall an ADC family live in the home of an unrelated 
male as interpreted.
Unrelated Male Living with ADC Family. Under 
certain circumstances, later described, an unrelated 
male is not permitted to live with an ADC family, 
whether in their home or his. An unrelated male, 
within the meaning of this provision, is a man 18 
years of age or older who is not related by blood to 
the ADC parent or other female payee-relative. “Liv­
ing with” or “in the home of” means that an unrelated 
male actually lives as a member of the family in the 
same household with the ADC family, and the per­
sonal relationship is one or is likely to become one 
in which he assumes the role of a husband to the 
ADC mother or other female payee-relative without 
benefit of marriage.
Evidence that the unrelated male lives as a member 
of the family will be found in the apparent con­
sistency and logic of physical evidence, such as 
whether he sleeps and eats there, has his belongings

A p p e n d ix  C



31a

there, uses the home as his address, etc., plus the 
evidence of personal relationship between him and 
the mother and children. A husband, from whom a 
wife is divorced or legally separated, is an unrelated 
male within the meaning of this provision if he 
actually resumes living in the ADC household on the 
basis described above without remarriage.
The intent of this policy is to try to prevent extra­
marital living arrangements within ADC households 
which might result in a situation injurious to a child’s 
physical, mental or moral well-being by leading to 
neglect on the part of the ADC parent; to impregna­
tion of a parent or a child; to community criticism 
and censure; or to misuse of any ADC funds in­
tended for support and care of children.
The policy is not intended to be used by the division 
to prevent a divorced or separated husband from 
exercising his legal rights to see his children. Limita­
tions on such rights are a matter for settlement be­
tween parents, with the advice and help of the Case­
worker, if they wish or for determination and decision 
by the court. Neither is it intended to prevent or 
prohibit normal social or employment relationships 
on the part of an ADC mother or other payee-relative 
under socially acceptable conditions.
The husband in a married couple, with whom an ADC 
family shares a home in return for work, or on some 
other acceptable basis, is not an unrelated male within 
the intent of this policy.
There are situations in which an unrelated male 
might be in the same household with an ADC family 
without intent to violate this policy, and which might

A p p e n d ix  C



32a

not be harmful to children or unacceptable to the 
community. For example, a mature ADC parent 
earns part of the family’s requirements as a house­
keeper for an elderly, ill, unrelated male without a 
wife; or provides care in the ADC household for an 
elderly male boarder or patient; or a payee-relative, 
such as a grandmother earns her living by taking in 
boarders, some of whom may be male.
All such situations are carefully evaluated by the 
caseworker in terms of the intent of the policy, and 
his recommendation reviewed by the district super­
visor for approval of eligibility with respect to this 
policy.
The ADC mother, or other payee-relative, when it is 
then decided that a violation of policy exists, has to 
make her choice between ADC and a continuation of 
a relationship which makes her ineligible for ADC. 
Assistance may be continued for the payroll period 
in which she is informed of the decision of ineligibil­
ity, but is discontinued thereafter, unless she chooses 
to comply with policy.

12. New Mexico. Dept, of Public Welfare Manual, 
§221.722 (Dec. 1964).

“ ‘Parent’ includes the father, putative father, mother 
and any man living with the mother and child with 
the exclusion of the step-father of the child. There 
must be affirmative proof that no parent, other than 
the applicant, is in the home.” (Emphasis in Orig­
inal.)

13. North Carolina. Public Assistance Manual of Poli­
cies and Procedures, §440 p. 4 (Jan. 1959).

A p p e n d ix  C



33a

In any case where it is found that the mother with 
a child or children born out of wedlock is maintain­
ing a relationship—(which amounts to a “common 
law relationship”)—with a man to whom she is not 
married, the county board of public welfare may 
find that the family is not eligible for aid to de­
pendent children as long as this sort of a relation­
ship continues, and if a payment is being made it 
may be terminated. If an application is rejected or 
a payment is terminated for this reason, the record 
should show the basis on which the county deter­
mined that the continuous relationship existed. There 
are many factors which may be taken into considera­
tion before making a decision, such as, the woman 
and the man being seen together frequently, evidence 
of pregnancy, evidence that the man provides food 
or makes regular contributions toward support of 
the mother and children, or that he shows an interest 
in the mother and children that would be expected of 
a husband and father.

14. Oklahoma. Manual of Policy and Procedures, §336 
(January 1964).*

A p p e n d ix  C

* According to L. E. Rader, Oklahoma Director o£ Public Welfare, in 
a letter to Amicus Center dated Nov. 29, 1966, “The general policies as 
outlined in various sections of the State manual provide . . . that when 
deprivation is based on absence of a parent, the child is ineligible if  there 
is also in the home a step-parent or person who has assumed the role 
of the parent’s spouse and will, therefore, be considered to have assumed 
the role of a step-parent (without regard to legal status). An assump­
tion of support or care by a step-parent or substitute parent is made 
when the person is actually making his home with the child or children 
and is accepting responsibility for the children the same as though he 
were a natural parent. In other words, the State’s policy provides that 
a mother is ineligible for AEDC on the basis of deprivation at any 
point it is established conclusively that there is a step-parent or substi­
tute parent in the home.”



34a

Children living with an own parent are eligible if 
there is also in the home a step-parent or person who 
has assumed the role of the parent’s spouse and who 
will, therefore, be considered to have assumed the 
role of a step-parent (without regard to legal status). 
An assumption of support or care by a step-parent 
or substitute parent will be made when the person 
is actually making his home with the child or children, 
and is accepting responsibility for the children, the 
same as would a natural parent. Such support does 
not, however, relieve an own parent of his legal 
responsibility for his children and the worker will 
give all help possible in developing support for him.

15. South Carolina. Manual of Policies and Procedures 
in Public Assistance, Yol. IV, p. 44.
Common-Law Relationship
A man living in common-law relationship with a 
woman is responsible for the support and care of 
his and her children, regardless of whether or not 
he is married to another woman.
The general law of the State recognizes common-law 
marriages. Under this law the parties must be free 
to contract legal marriage, and there are certain 
other stipulations in the law. However, by regula­
tion the State Department has adopted the policy of 
considering a man and woman who are living to­
gether as having established a common-law relation­
ship and the man has the same responsibility for 
her and her children as though he were the legal 
husband. Where such common-law relationships are 
established, it will be necessary to clear all eligibility

A p p e n d ix  C



35a

factors applicable to legal parents before the children 
can be considered deprived of parental support.
Since agency definition of a common-law relationship 
is that a man and woman be living together, it will be 
necessary to have definite evidence that an applicant 
for AFDC actually has a man or woman living in 
the home with him or her before a common-law rela­
tionship can be established. As a matter of actual 
practice this situation usually relates to a mother 
with children applying for assistance in the care of 
her children. The question of common-law relation­
ship therefore usually relates to whether or not she 
has a man living in the home with her who, under 
agency policy, would be held responsible for the 
support of the family. In instances where it is deter­
mined that the mother actually is living in common- 
law relationship with a man, it will be necessary 
to clear eligibility from the standpoint of the man’s 
ability to work for the support of the family.

16. Texas. Dept, of Public Welfare Manual of Services, 
§§2640 (Oct. 1959) and 2642.60 (April 1963).
2640. . . .
The child must be deprived of parental support or 
care by reason of death, continued absence from the 
home, or physical or mental incapacity of a parent. 
By “parents” is meant the mother and father of the 
child, or the mother or father of the child and the 
individual with whom the mother or father is main­
taining a marital relationship or maintainng a home 
together.

A p p e n d ix  C



36a

2642.60 Stability of Relationship
Continuing pregnancies in the face of alleged lack 
of a father in the home is a strong indication that 
the designated relative has formed some stable rela­
tionship with a man who presumably functions as a 
father or a father substitute in the home to the 
children and an ADC grant may not be initiated 
or continued until it is established that no such ar­
rangement is currently in effect.
In instances of a mother applying for an illegitimate 
child, an ADC grant cannot be placed until the mother 
has made an effort to bring the father into the office 
to discuss plans for the child.
When the mother of an ADC child is cohabiting with 
a man, the grant will be denied on the basis that the 
child is not deprived of parental support. A grant 
may not be initiated or reinstated until it is estab­
lished that the relationship has been terminated. Nor­
mally, a six months’ period of time accompanied with 
evaluation of all other pertinent facts should make 
possible a decision as to whether the relationship is 
broken.

17. Utah. Manual of Public Assistance Policies, §§4431.72 
and 4431.8 (Sept. 1965).
4431.72 Unmarried Adults Living Together in a Hus­

band-Wife Relationship. One basic eligibility 
factor in the APDC program is the absence 
of parent or acting parent. In some cases 
an AFDC mother will cohabit in a husband- 
wife relationship, whether with a divorced 
former husband or someone else, without the

A p p e n d ix  C



37a

benefit of marriage and without informing 
the county office. Such a living arrangement 
shall be considered to be a violation of the 
absence factor of eligibility of a parent or 
acting parent, and may be justification for 
discontinuing public assistance, particularly 
when the information continues to be with­
held from the caseworker. In some cases 
living arrangements of this nature may be 
difficult to establish. There are, however, 
some guidelines which can be used to justify 
a conclusion that a couple are living together, 
such as:
1. The man lists the woman and children as 

exemptions in his Federal and/or State 
income tax statements;

2. The man lists the wife and/or children 
as dependents at his place of employment;

3. The man and woman use the same address 
for the delivery of mail:

4. Both use the same telephone number;
5. Credit accounts are opened and used by 

both or either as husband and wife;
6. Statements of a landlord that both use 

the same apartment;
7. Statements of close neighbors that the 

couple live as man and wife.
If one or more of these listed situations are 
found to exist, this is a signal that a more 
intensive investigation must be made. If a

A p p e n d ix  G



A p p e n d ix  C

suspected husband-wife relationship is found 
to be reasonably supported by more than 
one type of evidence, the case shall be closed 
until the situation changes. In addition to 
closing the case, there may also have been 
an overpayment of assistance. If an over­
payment has been made, it must be handled 
in accordance with section 4860.

4431.8 Stable Unions of Unmarried Adults. Some 
unions of unmarried adults are very stable, 
the couples have been together for long 
periods of time, children have been born, 
and the unit has functioned successfully as 
a family. Common law marriages of this 
nature are not recognized under Utah law, 
and as a result the children have no legal 
protection, even though other aspects of their 
family and social relationships seem to be 
reasonably normal. Such common law mar­
riages are more frequent among certain 
minority groups, particularly since their cus­
toms and social patterns are different and 
the common law union is more or less normal 
and acceptable among these people. It is not 
intended that the regulations in subpara­
graph 4431.72 be used to disrupt stable 
unions of unmarried adults, and if necessary 
such families may be considered eligible for 
public assistance in the same manner as other 
eligible recipients.
On the other hand, because children of such 
unions do not have the legal protection pro­



39a

vided by marriage, the same questions exist 
as in all cases of unmarried parents. The 
casework plan in these cases would be the 
same in the development of the social study 
and diagnosis of problems. However, ser­
vices of the caseworker should be concen­
trated in the direction of helping the mother 
and father to realize how important marriage 
is, particularly for the protection of the 
children, and also for themselves while living 
in a society which considers marriage highly 
important.

18. Virginia. Public Assistance Manual, Yol. II, §203.14 
(July 1962).

“When a man or woman continues to live in the home 
under circumstances that indicate that he or she 
maintains an extramarital relationship with a child’s 
parent, the couple shall be deemed to have established 
a household accepting parental responsibilities, in­
cluding financial support for all of the children.”

A p p e n d ix  C



40a

APPENDIX D
States Which Define a Stepfather as a Parent for 

Purposes of ADC Eligibility But Impose No Duty of 
Support on Stepfathers by Virtue of the Marital Status 
Alone.3

1. Arizona. Family Services Manual, § 3-407.4A. Mag­
ma Copper Co. v. Aldrete, 70 Ariz. 48, 216 P.2cl 392 
(1950); Franklin v. Franklin, 75 Ariz. 151, 253 P.2d 
337 (1957).

2. Arkansas. Dept, of Public Welfare Manual, § 2813. 
Kempson v. Goss, 69 Ark. 451, 64 S.W. 224 (1901); 
Miller v. U.S., 123 F.2d 715 (8th Cir. 1942), supp. by 
124 F.2d 849 (8th Cir. 1942), supp. by 126 F.2d 462 
(8th Cir. 1942), rev. on other grounds, 317 U.S. 192, 
rehearing denied, 317 U.S. 713; Dodd v. U.S., 76
F. Supp. 991 (W.D. Ark. 1948).

3. District of Columbia. Handbook of Public Assist­
ance Policies and Procedures, Pt. 4.5(IV)(c). Har­
rington v. Harrington, 145 A.2d 121 (D.C. Mun. App. 
1958).

4. Georgia. Manual of Public Assistance Administra­
tion, Part III, § 5, p. 6. Wood v. Wood, 166 Ga. 519, 
193 S.E. 770 (1928).

5. Idaho. Letter to amicus Center from Howard H. 
Smith, Director of Social Services (dated Dec. 7, 
1966).

6. Indiana. Public Assistance Manual, III-C-2. Hol­
lingsworth v. Swedenborg, 49 Ind. 378 (1875).

3 This Appendix was compiled in the same manner as Appendix C and 
is subject to the same limitations.



41a

7. Louisiana. Manual of Policies and Procedures, 
§2-740 (A).

8. Maine. Public Assistance Policy Manual, Ch. II, 
§ C, p. 2. Inhabitants of Guilford v. Inhabitants of 
Monson, 139 Me. 261, 185 A. 517 (1936); Bunker y. 
Moins, 139 Me. 231, 22 A.2d 734 (1942).

9. Mississippi. Manual of Policies and Procedures, 
§ D, p. 4512.

9a. New Hampshire. Letter to amicus Center from 
George E. Murphy, Director, Division of Welfare, 
dated Nov. 30, 1967.

10. North Carolina. Public Assistance Manual of Poli­
cies and Procedures, § 440, Dodson v. McAdams, 96 
NC 149, 2 S.E. 453 (1887).

11. Oklahoma. Manual of Policies and Procedures, 
§ 336, as interpreted in Letter from L. E. Eader, 
reprinted in App. C supra, at p. 33a. Okla, Stat. 
Ann., Title 10, § 15; Barker v. Barker, 25 Okla. 48, 
105 Pac. 347 (1909); Daniel v. Tolon, 53 Olda. 666, 
157 Pac. 756 (1916).

12. Oregon. State Public Welfare Commission Staff 
Manual, § 2145.16. State v. Langford, 90 Or. 251, 
176 Pac. 197 (1918); Sargent v. Foland, 104 Or. 296, 
207 Pac. 349 (1922).

13. Pennsylvania. Dept, of Public Welfare Manual, 
§3122.4. Young v. Hippie, 273 Pa. 439, 117 A. 185, 
25 A.L.R. 1541 (1922); Commonwealth ex rel. Stack 
v. Stack, 141 Pa. Super. 147, 15 A.2d 76 (1940).

A p p e n d ix  D



42a

Appendix D

14. South Carolina. Manual of Policies and Procedures, 
Yol. IV, p. 39.

15. Texas. Dept, of Public Welfare Manual of Services, 
§ 2640. Boyle v. Tolly, 134 S.W.2d 500 (Civ. App. 
1939); Drescher v. Morgan, 251 S.W.2d 173 (Civ. 
App. 1952).



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