TN 2 (03-06)
PR 01325.154 Haiti
A. PR 06-049 Validity of Haitian Adoption for Determining Eligibility for Surviving Child Benefits
DATE: January 26, 2006
Under Haitian law, the parties to an adoption are bound by a parent-child relationship the moment the adoption act is filed with the Justice of the Peace. The adoption is effective against third parties when it is ratified by the Civil Tribunal. The death of the adopting parent after the filing of the adoption act does not stop the courts from completing the procedure.
As a result, the child became an eligible child of the deceased number holder on June 29, 2005, the date the Civil Tribunal ratified the adoption.
An application for surviving child's benefits was filed on behalf of Catherine F~, SSN ~, on the account of the deceased wage earner Wilner D~, SSN ~. Mr. D~ was domiciled in Missouri at the time of his death. An adoption certificate submitted with the application shows that Catherine was adopted by Wilner D~ in Haiti. Because there is not a precedent opinion regarding the requirements of a Haitian adoption, you have asked whether the file in the instant case contains satisfactory evidence that Catherine F~ was legally adopted by Wilner D~ according to Haitian law in order to award her surviving child's benefits.
For the reasons explained below, we conclude that the adoption of Catherine F~ was valid under Haitian law and that Catherine F~ should be recognized as the legally adopted child of Wilner D~ for the purpose of receiving surviving child's benefits beginning June 29, 2005.
Catherine F~ was born in Ft. Lauderdale, Florida on December 31, 1990. Her mother, Benita D~, and her biological father Robert F~, were divorced on January 1, 1991. On September 1, 2001, Benita D~ married Wilner D~ in Haiti. Ms. D~ and Mr. D~ had become naturalized citizens of the United States on April 13, 1998, and August 23, 1999, respectively. The naturalization papers show that Ms. D~ was born on January 8, 1963, and Mr. D~ was born on May 25, 1958. On December 18, 2002, Mr. D~ adopted Catherine F~ in Haiti. On June 7, 2004, Mr. D~ passed away in New Madrid, Missouri. The adoption was ratified by a Civil Tribunal on June 27, 2005, and was recorded in the civil status registry on June 29, 2005. On September 14, 2005, Mrs. D~ filed for surviving child's benefits for Catherine on Wilner D~'s record.
The Social Security Act does not define legal adoption. The Commissioner of Social Security, however, may "prescribe such rules and regulations as the Commissioner determines necessary or appropriate to carry out the functions of the Administrations." 42 U.S.C. § 902(a)(5). When an adoption takes place in a foreign country, SSA applies the adoption laws of that country to determine whether an individual is the insured's legally adopted child. See 20 C.F.R. § 404.356 (2005); Program Operations Manual System (POMS) GN 00306.135. At least one party to the adoption, either the child or the adopting parent, must have been domiciled or actually residing in that jurisdiction at the time of the adoption. The physical presence of one or both of the parties within that jurisdiction does not make the adoption valid. See POMS GN 00306.135.
POMS GN 00307.220 specifies that evidence of a legal adoption in a foreign country can be an adoption decree, however, it is acceptable only if "there is a precedent opinion on the requirement for such an adoption." Because there is not currently a precedent opinion on the requirements of a valid adoption in Haiti we requested advice from the Western Law Division of the Law Library of the Library of Congress (response attached).
Adoption in Haiti is permitted only for children under sixteen years old. The prospective adopting parent(s) may be either any person over thirty-five years old or two spouses, not legally separated, who have been married for at least ten years, with one of the spouses being over thirty-five years old. The prospective adoptive parents must be at least nineteen years older than the children they propose to adopt. However, if the latter are children of one spouse, the required difference of age is only ten years. The President also may grant a dispensation reducing the age difference requested.
At the time of the adoption, the prospective adopting parent must neither have children nor descendents of his or her own, unless the President of the Republic grants a dispensation. A prior adoption of a child, however, does not hinder new adoptions by the same adopting parent, if the prospective parent can establish that he or she can handle the economic obligations. A Haitian can adopt or be adopted by a foreigner. The law is silent as to any residency requirement and does not address the adoption of a foreigner by another foreigner in Haiti.
The biological parents of the child must consent to the adoption. If one of the biological parents is dead or has no possibility of expressing his or her wishes, the consent of the other suffices. When the parents are legally separated or divorced, consent will be given by the parent with custody of the child. In this case, a notification of the adoption act must be made to the parent who did not give his or her consent, and the ratification of the adoption act can only take place thirty days after this notification. The court must hear a parent who presents a notification of his or her opposition to the adoption within the thirty-day period before it can ratify the adoption act. Consent may be given either at the time the adoption act is drafted or by a separate authentic act in front of a notary, a Judge of Peace, or, if abroad, before a diplomatic agent.
The prospective adopting parent(s), the minor, and the minor's legal representative(s) must appear before the Justice of the Peace with jurisdiction over the domicile of the adopting parent (or before the Justice of the Peace with jurisdiction over the domicile of the adoptee if the adopting person is a foreign national) to draw up the adoption act. The adopting parent must produce documents establishing the required age difference and a medical certificate stating that he or she is not suffering from a contagious illness.
The adoption act then must be ratified by the Civil Tribunal for the domicile of the adopting parent. The Tribunal verifies whether all the legal requirements have been met and whether the adoption will result in a real improvement for the adoptee. The Prosecutor's office has thirty days to appeal a judgment ratifying an adoption act, while the parties to the adoption have thirty days to appeal the refusal of the court to ratify an adoption act. Ratification of the adoption act is pronounced at a public hearing.
The adoption becomes effective against third parties only after the recording of the ratification judgment in the civil status register. However, the parties themselves are bound to a parent-child relationship the moment the adoption act is entered before the Justice of the Peace. Adoption generates the same rights and obligations that are derived from legitimate or natural filiations. The acte d'adoption appearing on the civil status register serves as the official adoption decree.
If the adopting parent dies after the adoption act has been drawn before the Justice of the Peace and after the ratification before the Civil Tribunal has been filed, the adoption procedures continue and the Civil Tribunal may ratify the adoption.
Based on the documents provided, it appears that the adoption of Catherine F~ by Wilner D~ was valid under Haitian law, and became effective against third parties on June 29, 2005. Catherine F~ was almost twelve years old when she was adopted by Mr. D~, who was forty-four years old at the time, which satisfies the age requirements. A judgment of the Civil Tribunal of Petit-Goave ratified the adoption on June 27, 2005. The judgment shows Mr. D~ as the petitioner and that he had his primary domicile in Petit-Goave. Although the judgment was rendered after the death of Mr. D~, the 1974 Decree on Adoption provides that adoption procedures can continue, and the court may ratify the adoption, when the adopting parent dies after the adoption act has been drawn before the Justice of the Peace and a filing for ratification before the Civil Tribunal has occurred.
The ratification judgment states that Mr. D~ appeared before the Justice of the Peace of Petit-Goave to adopt Catherine on December 18, 2002, and that Catherine's mother gave her consent to the adoption. Because the Tribunal verifies whether all the legal requirements have been met, we assume the Tribunal determined that Catherine's mother had custody of Catherine. On June 27, 2005, the Tribunal ratified the adoption act drawn on December 18, 2002, and ruled that Catherine was to be known under the name Catherine F~ D~. The Public Prosecutor agreed with the Judge's findings. In addition, the Tribunal ordered that the ratification of the adoption be entered on the appropriate civil register.
In conformity with the ratification judgment, an acte d'adoption was drawn in the register of civil status on June 29, 2005, reproducing the terms of such judgment. This adoption act serves as the official adoption decree.
To account for the possibility that the adoption was invalid, we also requested information from the Law Library of the Library of Congress regarding the requirements of a valid marriage under Haitian law. If the marriage between Benita D~ and Wilner D~ was valid, Catherine could also be entitled to surviving child's benefits as the number holder's step-child, provided all other eligibility requirements are met. See 20 C.F.R. § 404.357 (2005); POMS GN 00305.020, GN 00306.230.
Haitian Civil Code directs that a marriage be celebrated publicly before an "official of the civil status" for the domicile of one of the spouses. Domicile, for marriage purposes, is established by six months of continuous habitation in the same commune (smallest administrative unit). Before the celebration of the marriage, the "official of the civil status" must post two publications, at an interval of eight days, on the door of the civil status office. Such publications state the first names, last names, professions, and domiciles of the engaged couple, as well as the place where the marriage is to be celebrated. If the couple resides in different communes, publications must be done in each commune. The officer of the civil status must request the birth certificate of both persons.
Opposition to the marriage may be filed during the publication period. On a day designated by the couple, the "official of the civil status," in the presence of at least two and at most four witnesses, will make a reading of the information contained in the birth certificate of each party, the duties and rights of the spouses, respectively, and receive the parties consent. At the end of the ceremony, the "official of the civil status" must draw up a marriage act at once. The marriage act must include the following: (1) first names, last names, professions, ages, dates and places of birth, and domicile of the spouses; (2) first names, last names, and professions of the fathers and mothers; (3) consent of the mothers and fathers or legal guardians, if necessary; (4) information concerning the publications; (5) oppositions, if any; (6) mention of a contract of marriage, if any; (7) declaration of the parties to take each other for spouses and the pronouncement of their union by the "official of the civil status;" and (8) the names, ages, and professions of the witnesses and their legal capacity as adults.
Applying these requirements to the marriage between Wilner D~ and Benita D~, the marriage appears to be valid. The marriage certificate contains all the required information listed in the Civil Code, including the publications which took place on the Sundays of September 9, 2001, and September 16, 2001. It states that there was no opposition to the marriage. It shows that both spouses were, at the time, domiciled in Haiti, with Mr. D~ living in Petit-Goave and Ms. D~ living in Port-au-Prince. In the margin of the copy of the marriage certificate, the page number of the register and the record number of the marriage are listed.
We conclude that the aforementioned adoption was valid under Haitian law and complies with the requirements of POMS GN 00306.135 and GN 00307.220 beginning June 29, 2005. The marriage was also valid under Haitian law, entitling Catherine to surviving child's benefits as the numberholder's step-child, provided all other eligibility requirements are met.
Frank V. S~ III
Chief Counsel, Region VII
Kristin L. E~
Assistant Regional Counsel