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Evidence Rebuts Presumption Of Paternity For Social Security

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Sometimes lawyers remind their colleagues and clients that legal problems would arise less frequently if individuals would simply lead more orderly lives. Clarence Schoenfeld and family helped prove that basic legal maxim.

Clarence “Clay” Schoenfeld was 50 and a professor at the University of Wisconsin when he married graduate student Sheryl Smith in 1969. Prof. Schoenfeld had children from his first marriage, and he and his new wife agreed that they would not have children.

Eventually Mrs. Schoenfeld began to think she might want to have children after all. In 1978 she moved out of Prof. Schoenfeld’s home and began to look into the possibility of adoption or artificial insemination.

In 1979, on a vacation in Rome, Mrs. Schoenfeld met Michael Mandeville, who told her that he was a CIA operative and native Australian. Mr. Mandeville told Mrs. Schoenfeld that he would like to have children himself, but that his work prevented him from being a “traditional” father. The two agreed that they could solve one another’s dilemmas if Mrs. Schoenfeld was inseminated with Mr. Mandeville’s sperm.

Mrs. Schoenfeld used a syringe to complete the insemination and in October, 1980, her first child was born. Although Prof. and Mrs. Schoenfeld had been sexually intimate during the period of conception, the child’s birth certificate listed Mr. Mandeville as the father and he was given the Mandeville name. A month later Prof. and Mrs. Schoenfeld were legally separated, though not divorced.

In 1982 Mrs. Schoenfeld repeated the process, with the result that a child was born in October of that year. In May of 1985 her third child was born in the same manner. Mr. Mandeville was listed as the father on each birth certificate. Prof. Schoenfeld moved to a nursing home between the births of the second and third children, though he and Mrs. Schoenfeld were sexually intimate through the time of conception of each child.

Prof. Schoenfeld died in 1996. His widow applied to Social Security on behalf of her children for survivors benefits, and for herself as mother of his surviving children. After an initial round of hearings benefits were awarded, but the Social Security Administration ultimately determined that the children were not Prof. Schoenfeld’s and terminated benefits.

In Wisconsin as in most states (including Arizona), there is a strong presumption that children born during a marriage are the children of the mother’s husband. In this case, the Seventh Circuit Court of Appeals ruled on appeal, that presumption could be overcome by evidence of the actual paternity. Mrs. Schoenfeld’s children would not receive Social Security benefits as a result of her husband’s death. Schoenfeld v. Apfel, January 11, 2001.

Arizona law is similar to the law of Wisconsin. While there is a strong presumption that children born during a marriage are the children of the husband, it can be overcome by “clear and convincing” evidence to the contrary.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

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Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.