Appellants, recipients of Aid to Families With Dependent
Children (AFDC) assistance, brought this suit challenging the
validity of a California law and regulations that conclusively
presume that the income of a nonadoptive stepfather or a man
assuming the role of a spouse (MARS) is available to the children
in computing the AFDC assistance to which they are entitled.
Appellants contend that the state provisions conflict with the
Social Security Act and Department of Health, Education, and
Welfare (HEW) regulations thereunder providing that income from a
nonadoptive stepfather without legal obligation of support or a
MARS may not be treated as available to the children absent proof
of actual contributions. A three-judge District Court, holding the
HEW regulations invalid, dismissed the complaint.
1. AFDC aid can be granted under the Social Security Act only if
"a parent" of the needy child is continually absent from the home,
the term "parent" including only a person with a legal duty of
support. King v. Smith, 392 U. S. 309
392 U. S. 313
392 U. S. 327
Pp. 397 U. S.
2. The HEW regulation validly implements the Act, since HEW
could reasonably conclude that only a person as near as a real or
adoptive father would be has the consensual relation to the family
that makes it reliably certain that his income is actually
available for support of the children in the household. Pp.
397 U. S.
3. The State, which is foreclosed from arguing that the
"assumption of income" provisions comport with the Act as applied
to MARS, may seek to show on remand only that those provisions may
be retained under the Act as applied to nonadoptive stepfathers if
it can demonstrate that their legal obligation under state law is
consistent with that under federal law. P. 397 U. S.
, reversed and remanded.
Page 397 U. S. 553
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Appellants are mothers and children who receive welfare
assistance under California law. [Footnote 1
] At the time these actions were commenced,
California law provided [Footnote
Page 397 U. S. 554
payments to a "needy child" who
"lives with his mother and a stepfather or an adult male person
assuming the role of spouse to the mother although not legally
married to her"
-- known in the vernacular as a MARS -- shall be computed after
consideration is given to the income of the stepfather or MARS.
] The California law
conclusively presumes that the needs of the children are reduced by
the amount of income available from the man in the house, whether
or not it is, in fact, available or actually used to meet the needs
of the dependent children.
Following our decision in King v. Smith, 392 U.
, the Department of Health, Education, and Welfare
(HEW) promulgated a regulation reaffirming its earlier rulings that
the income of a man not ceremonially married to the mother of the
dependent children may not be treated as available to the children
unless there is proof that he has made actual contributions.
] Even where the man
is ceremonially married to the mother but is not the real or
adoptive father, his income may not be treated as available to the
children unless he is legally obligated to support the children by
state law. [Footnote 5
These suits by appellants were brought in a three-judge District
Court to have the California law and regulations declared invalid.
That court dismissed the
Page 397 U. S. 555
complaints, holding the HEW regulations were invalid. 312 F.
. The cases are here on appeal, and we noted probable
jurisdiction. 396 U.S. 900.
The Social Security Act defines a dependent child as a
"needy child . . . who has been deprived of parental support or
care by reason of the death, continued absence from the home, or
physical or mental incapacity of a parent, and who is living
a specified relative. § 406(a), 49 Stat. 629, 42 U.S.C. §
606(a). This is the Aid to Families With Dependent Children (AFDC)
program which we discussed in King v. Smith.
The federal statute provides that state agencies administering
"shall, in determining need [of an eligible child], take into
consideration any other income and resources [of the child] . . .
as well as any expenses reasonably attributable to the earning of
any such income."
42 U.S.C. § 602(a)(7) (1964 ed., Supp. IV).
This directive was implemented by a regulation of HEW, effective
July 1, 1967, which, as then worded, provided in part:
"[O]nly 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. [Footnote 6
We stated in King v. Smith, supra,
at 392 U. S. 319
n. 16, that those regulations "clearly comport with" the Act. And
as we have noted, shortly after King v. Smith,
Page 397 U. S. 556
promulgated a new regulation [Footnote 7
] which provided in pertinent part:
"(a) A State plan for aid and services to needy families with
children . . . must provide that the determination whether a child
has been deprived of parental support or care by reason of the
death, continued absence from the home, or physical or mental
incapacity of a parent . . . will be made only in relation to the
child's natural or adoptive parent, or in relation to a child's
step-parent who is ceremonially married to the child's natural or
adoptive parent and is legally obligated to support the child under
State law of general applicability which requires stepparents to
support stepchildren to the same extent that natural or adoptive
parents are required to support their children."
"(b) The inclusion in the family, or the presence in the home,
of a 'substitute parent' or 'man in the house' or any individual
other than one described in paragraph (A) of this section is not an
acceptable basis for a finding of ineligibility or for assuming the
availability of income by the State. . . . [I]n the consideration
of all income and resources in establishing financial eligibility
and the amount of the assistance payment, only such net income
as is actually available for current use on a regular basis will be
considered, and the income only of the parent described in
paragraph (a) of this section will be considered available for
children in the household in absence of proof of actual
In other words, the regulations explicitly negate the idea that,
in determining a child's needs, a stepfather (i.e.,
married to a child's mother but who has not
Page 397 U. S. 557
adopted the child and is not legally obligated to support the
child under state law) or a MARS may be presumed to be providing
support. [Footnote 8
We said in King v. Smith
that AFDC aid can be granted
"only if a parent' of the needy child is continually absent
from the home." 392 U.S. at 392 U. S. 313.
If the stepfather or MARS is a "parent" within the meaning of the
federal Act, any federal matching assistance under the AFDC program
for children living with a MARS or stepfather would not be
available to appellants. The three-judge court said that "[t]he HEW
regulation, by requiring proof of actual contributions from a MARS,
reduces the expectation of Congress to a mere hope." 312 F. Supp.
at 202. We disagree. We traversed the entire spectrum of that
question in King v. Smith, and find it unnecessary to
restate the legislative history of the relevant statutes. We
concluded that Congress "intended the term `parent' in § 406(a) of
the Act . . . to include only those persons with a legal duty of
support." 392 U.S. at 392 U. S. 327.
And we went on to say:
"It is clear, as we have noted, that Congress expected
'breadwinners' who secured employment
Page 397 U. S. 558
would support their children. This congressional expectation is
most reasonably explained on the basis that the kind of breadwinner
Congress had in mind was one who was legally obligated to support
his children. We think it beyond reason to believe that Congress
would have considered that providing employment for the paramour of
a deserted mother would benefit the mother's children whom he was
not obligated to support."
"By a parity of reasoning, we think that Congress must have
intended that the children in such a situation remain eligible for
AFDC assistance notwithstanding their mother's impropriety."
at 392 U. S.
That reasoning led us to invalidate Alabama's "substitute
father" regulation. [Footnote
] Like reasoning leads us to hold, contrary to the three-judge
District Court, that the HEW regulation is valid. We only add that
HEW might reasonably conclude that only he who is as near as a real
or adoptive father would be has that consensual relation to the
family which makes it reliably certain that his income is actually
available for support of the children in the household. HEW may, in
other words, reasonably conclude that an obligation to support
Page 397 U. S. 559
state law must be of "general applicability" to make that
obligation in reality a solid assumption on which estimates of
funds actually available to children on a regular basis may be
Any lesser duty of support might merely be a device for lowering
welfare benefits without guaranteeing that the child would
regularly receive the income on which the reduction is based, that
is to say, it would not approximate the obligation to support
placed on and normally assumed by natural or adoptive parents. That
reading of the Act and of King v. Smith
be said to be impermissible.
Our decision in King v. Smith
held only that a legal
obligation to support was a necessary condition for qualification
as a "parent"; it did not also suggest that it would always be a
sufficient condition. We find nothing in this regulation to suggest
inconsistency with the Act's basic purpose of providing aid to
"needy" children, except where there is a "breadwinner" in the
house who can be expected to provide such aid himself. HEW, the
agency charged with administering the Act, has apparently concluded
that, as a matter of current, practical realities, the relationship
of the MARS to the home is less stable than that of the stepfather,
who at least has the additional tie of the ceremonial marriage, and
that the likelihood of the MARS' contributing his income to the
children -- even if legally obligated to do so -- is sufficiently
uncertain, in the absence of the marriage tie, to prevent viewing
him as a "breadwinner" unless the bread is actually set on the
table. Nothing in this record shows that this administrative
judgment does not correspond to the facts. We give HEW the
deference due the agency charged with the administration of the
Act, see, e.g., Red Lion Broadcasting Co., Inc. v. FCC,
395 U. S. 367
395 U. S. 381
Zemel v. Rusk, 381 U. S. 1
381 U. S. 11
In the absence of proof of actual contribution,
Page 397 U. S. 560
California may not consider the child's "resources" to include
either the income of a nonadopting stepfather who is not legally
obligated to support the child as is a natural parent or the income
of a MARS -- whatever the nature of his obligation to support.
California, on remand, is foreclosed from arguing that its
"assumption of income" provisions are consistent with the Act as
applied to MARS; the State is limited to demonstrating that those
provisions may be retained under the Act as applied to nonadopting
stepfathers by showing that the legal obligation placed on such
step-parents is consistent with the obligation required by the
Whether, in that posture of the case, California's laws and
regulations are inconsistent with the federal standard is a
question that the District Court did not reach. The case is
therefore reversed and remanded so that such an adjudication can be
It is so ordered.
Some of the appellants sue on behalf of themselves, their
children, a man assuming the role of spouse (MARS), and all others
similarly situated. There are also intervenors who represent two
families, one with a stepfather and another with a MARS.
Cal.Welf. & Inst'ns Code § 11351 (1966).
On September 3, 1969, the Governor of California signed into law
a new § 11351.5 of the California Welfare and Institutions Code,
which became effective November 10, 1969. It leaves unchanged §
11351 and implementing regulations insofar as the apply to a
stepfather, but repeals the old § 11351 insofar as it applied to
"an adult male person assuming the role of spouse." Under the new
law, a MARS
"shall be required to make a financial contribution to the
family which shall not be less than it would cost him to provide
himself with an independent living arrangement."
The new law also provides that, under regulations to be
promulgated by the State Welfare Department, the MARS and the
mother will be required to present the Department with "all of the
facts in connection with the sharing of expenses. . . ."
The California regulations that governed a MARS at the time
these suits were brought were Cal.State Dept. of Social Welfare,
Public Social Services Manual §§ 42-535 (effective Nov. 1, 1967),
44-133.5 (effective July 1, 1967). As to a stepfather, the
pertinent regulations were id.,
§§ 42-531 (effective Nov.
1, 1967), 44-113.242 (effective July 1, 1967).
For criminal sanctions against a natural father who fails to
support his children, see
Cal.Penal Code § 270; Cal.Welf.
& Inst'ns Code §§ 11476-11477 (1966).
45 CFR § 203.1.
HEW Handbook of Public Assistance Administration, pt. IV, §
3131.7. In its present form the regulation provides:
"(ii). . . in establishing financial eligibility and the amount
of the assistance payment: . . . (c) only such net income as is
actually available for current use on a regular basis will be
considered, and only currently available resources will be
45 CFR § 233.20(a)(3)(ii), 34 Fed.Reg. 1395.
45 CFR § 203.1.
An exception is a person whose presence is deemed essential to
the wellbeing of the recipient of assistance and who is included in
the family budget unit for calculation of need. See
U.S.C. § 602(a)(7), (1964 ed., Supp. IV) which provides:
"A State plan . . . must . . . provide that the State agency
shall, in determining need, take into consideration any other
income and resources of any child or relative claiming aid to
families with dependent children, or of any other individual
(living in the same home as such child and relative) whose needs
the State determines should be considered in determining the need
of the child or relative claiming such aid, as well as any expenses
reasonably attributable to the earning of any such income. . .
The so-called AFDC "essential person" is also covered by
45 CFR § 233.20(a)(2)(vi), 34 Fed.Reg.
"Under the Alabama regulation, an 'able-bodied man, married or
single, is considered a substitute father of all the children of
the applicant . . . mother' in three different situations: (1) if
'he lives in the home with the child's natural or adoptive mother
for the purpose of cohabitation;' or (2) if 'he visits [the home]
frequently for the purpose of cohabiting with the child's natural
or adoptive mother;' or (3) if 'he does not frequent the home, but
cohabits with the child's natural or adoptive mother elsewhere.'
Whether the substitute father is actually the father of the
children is irrelevant. It is also irrelevant whether he is legally
obligated to support the children, and whether he does, in fact,
contribute to their support. What is determinative is simply
whether he 'cohabits' with the mother."
392 U.S. at 392 U. S.
MR. JUSTICE BLACK, with whom THE CHIEF JUSTICE joins,
In my dissenting opinion in Rosado v. Wyman, ante
397 U. S.
-433, I pointed out that, in many lawsuits brought
against state welfare authorities by recipients of Aid to Families
With Dependent Children (AFDC), the real controversy is not between
the AFDC recipients and the State, but between the Federal
Government and the state government. This case presents precisely
that situation. The Solicitor General has informed the Court that
the Department of Health, Education, and Welfare (HEW) -- the
federal agency vested by statute with the duty of insuring that
States which receive federal AFDC matching funds abide by the
federal requirements -- has determined that § 11351 of the
California Welfare and Institutions Code is inconsistent
Page 397 U. S. 561
with federal AFDC regulations, 45 CFR § 203.1. This California
statute provided when this suit was brought that the income of a
stepfather or a man assuming the role of a spouse (MARS) to the
mother of dependent, needy children shall be considered as
available to the children in computing the AFDC assistance to which
the children are entitled. The federal regulations, however, in
general refuse to assume that the income of a stepfather or MAS is
available to the children in the absence of proof of actual
contributions. California admits that there is a conflict between
these state and federal provisions, but contends that the federal
regulations are inconsistent with the requirements of the Social
Security Act, and that its statute is consistent with the Act. The
controversy between these two governments is thus real and
substantial. It was for exactly such situations that the Social
Security Act provided a comprehensive remedial scheme for resolving
disputes between federal and state governments. See
U.S.C. §§ 602, 604, 1316 (1964 ed. and Supp. IV). Under this
scheme, HEW has the power, subject to certain notice and hearing
requirements, to terminate AFDC assistance to a State that refuses
to conform to the federal policies. In this case, the termination
of federal AFDC assistance to California or the credible threat to
terminate that assistance in the near future would compel a
resolution of the underlying issue in this lawsuit by forcing
California (1) to amend its laws to conform to the existing federal
regulations, (2) to challenge HEW's determination of nonconformity
in the federal courts as provided in 42 U.S.C. § 1316 (1964 ed.,
Supp. IV), or (3) to withdraw from the federally assisted AFDC
program. Generally, the Act provides procedures that allow the
state and federal governments to resolve their difference either by
agreement or by lawsuit. As I stated in my dissent in Rosado v.
at 397 U. S.
Page 397 U. S. 562
if the congressional objective in establishing the Act's
remedial procedures is to be realized, it is imperative that the
integrity of these procedures not be undermined by premature
lawsuits brought by welfare recipients. I think these remedial
provisions of the Social Security Act reflect an unmistakable
intent to give HEW primary jurisdiction over technical and
difficult welfare issues, and that these procedures should be the
exclusive ones until they have been exhausted. Accordingly, in my
view, it was error for the District Court to assume jurisdiction
and decide this case. It is strange indeed to me that the Federal
Government has never been made a party to this lawsuit, although
its interests are deeply involved.
I would add this note of caution, however. The Federal
Government has no power under our Constitution to force or coerce a
State into disobeying its own valid laws while those laws are still
on the books. My concern in this regard arises from my belief that
a State, absent some express constitutional prohibition, has power
and authority to fix and determine the property relationships and
support obligations among persons within its boundaries. I
certainly hope that the opinion of the Court today will not be
interpreted as compelling a State to violate its own valid laws in
order to obtain money from the Federal Government.
When this action was brought challenging the California statute
as inconsistent with the federal regulations, HEW was in the
process of considering the effect of its new regulations on the
California statute. It is now clear that HEW was preparing to rule
that the California provision was inconsistent with the federal
requirements. If this Court today would vacate the judgment of the
District Court, that order would leave HEW free to proceed to
settle its controversy with California as Congress has provided.
For this reason, and
Page 397 U. S. 563
for those stated above, I would vacate the judgment of the
District Court and order that the case be dismissed as prematurely
MR. CHIEF JUSTICE BURGER, dissenting.
Unlike Dandridge v. Williams, ante,
p. 397 U. S. 471
administrative procedures provided by statute have not been
exhausted here. For this reason, HEW's primary jurisdiction remains
a bar to the jurisdiction of federal courts over suits brought by
welfare recipients. See Rosado v. Wyman, ante,
397 U. S. 430
(dissenting opinion of MR. JUSTICE BLACK). I therefore join the
dissent filed by MR. JUSTICE BLACK.