TN 9 (12-11)
PR 01325.232 Marshall Islands
A. PR 12-021 Validity of Adoption in the Republic of the Marshall Islands for Purposes of Entitlement to Child Survivor’s Benefits Capella – Claimant
DATE: November 22, 2011
We conclude that, pursuant to the Republic of the Marhsall Islands (RMI) custom, Capella’s foreign adoption was valid as of October 16, 2004.
John and his wife adopted Capella in accordance with customary law in the Republic of the Marshall Islands (RMI), and the customary adoption has been confirmed by the RMI High Court. Under agency policy, Capella was also dependent on John at the time of his death, and she has therefore met all eligibility requirements for child’s benefits. Thus, Capella qualifies for child survivor’s benefits on John’s account based on the application filed on August 24, 2009.
You asked whether the foreign adoption of Capella (Capella) is valid for purposes of establishing Capella’s entitlement to child’s survivor benefits on the account of the deceased wage earner John (John).
Yes. John and his wife adopted Capella in accordance with customary law in the Republic of the Marshall Islands (RMI), and the customary adoption has been confirmed by the RMI High Court. Under agency policy, Capella was also dependent on John at the time of his death, and she has therefore met all eligibility requirements for child’s benefits.
John and Tarkij and their two sons began living in Florida in 2002. John was born in the RMI; Tarkij was born in the United States but, based on a RMI court document, is also a RMI citizen.
John’s sister, Rine, gave birth to Capella on June 16, 2004 in the RMI. The birth certificate does not identify a birth father, and no person has come forward to claim biological paternity.
On September 17, 2004, when Capella was about three months old, Rine took her to Florida to live with John and Tarkij Under the Compact of Free Association (CFA) Act, RMI citizens by birth are entitled to travel and apply for admission to the United States as nonimmigrants without visas. 48 U.S.C. § 1901; Pub. L. 99-232; http://www.uscis.gov/files/pressrelease/Compacts_FS_021105.pdf .
However, they remain citizens and nationals of RMI, not citizens or nationals of the United States. POMS RM 10211.050; http://www.rmiembassyus.org/RMI-US%20Compact.htm .
and placed her in their care and custody. Tarkij and John accepted Capella as their child and they lived together as a family. After a few months, Rine moved into her own residence.
Capella lived with Tarkij, John, and their two children in Florida until October 7, 2008 when they moved to Sacramento, California. Rine also moved to Sacramento, but lived separately from John and his family.
On August 22, 2009, John died in California. Tarkij and the surviving children, Capella, John, and Johnston, continued to live together in Sacramento after John’s death
On August 24, 2009, Capella’s family filed a claim for child’s survivor benefits on her behalf, alleging that Capella was John’s adopted child. The agency denied the claim because the family had no proof of Capella’s adoption. The agency granted the claim filed on behalf of John , John’s biological child; John , has received child survivor’s benefits since August 2009 and remains in pay status. Tarkij received mother’s benefits from August to October 2009. Her entitlement to these benefits terminated in October 2009 because John, her only entitled child, attained age 16 and is not disabled. 20 C.F.R. § 404.341(b)(2). Tarkij may qualify for mother’s benefits if Capella becomes eligible for child’s survivor benefits.
On July 23, 2010, Tarkij petitioned the RMI High Court to confirm the September 2004 customary adoption of Capella and to change Capella’s name. The RMI High Court held a hearing on July 26, 2010 at which Tarkij appeared and testified. The Court considered Tarkij’s testimony and evidence from the file, which included Capella’s birth certificate, the formal consent of Capella’s birth mother to the confirmation of the customary adoption and name change, and a statement of no opposition by the Marshall Islands Social Security Administration (MISSA). We contacted a representative of the Marshall Island’s Social Security Administration (MISSA) and asked the significance of MISSA’s “statement of no objection” to Tarkij’s petition to adopt Capella. The responding employee advised that MISSA does not usually object to these confirmation petitions because they are granted “almost every time.”
The RMI High Court expressly found that Tarkij and Capella were both RMI citizens who lived in Sacramento, California.
On August 8, 2010, the RMI High Court issued a Decree Confirming Customary Adoption. The Court found that clear and convincing evidence demonstrated that confirming the adoption was in Capella’s best interests and that Tarkij was a fit and proper person to raise Capella. Accordingly, the Court declared that Capella is Tarkij’s adopted child as of October 16, 2004 “in accordance with the customary and traditional practices of the Marshall Islands[.]” The RMI High Court changed the spelling of her last name to reflect that used by John’s family. The Court ordered that her birth certificate be amended to reflect her adoptive name and the name of the adoptive parent.
The RMI Ministry of Internal Affairs issued a new birth certificate for Capella dated August 16, 2010. The birth certificate shows that Tarkij and John are Capella’s mother and father. The birth certificate also lists Tarkij’s place of residence as the RMI, although the RMI High Court’s order recognized her place of residence as California.
On October 5, 2010, Johnston, Tarkij’s oldest son, filed a second application for child survivor’s benefits on Capella’s behalf. Johnston applied to be Capella’s representative payee. He submitted the RMI High Court’s August 8, 2010 adoption decree as new evidence of Capella’s relationship to John. After the regional office submitted the opinion request to our office, Capella’s family submitted Capella’s August 16, 2010 birth certificate.
The Social Security Act, Regulations & POMS on Foreign Adoptions
Pursuant to the Social Security Act (Act), a “child” includes a legally adopted child. Social Security Act § 216(e), 42 U.S.C. § 416(e); see also 20 C.F.R. § 404.354. The “child” of a fully insured individual is entitled to child’s insurance benefits if he or she has applied for such benefits, is unmarried, is under age 18, and is dependent upon the insured. Social Security Act § 202(d)(1), 42 U.S.C. § 402(d)(1); see also 20 C.F.R. § 404.350.
A claimant “may be eligible for benefits as the insured’s child if [he or she was] legally adopted by the insured,” or “legally adopted after the insured’s death by his or her surviving spouse.” 20 C.F.R. § 404.356. In determining whether the claimant is the insured’s legally adopted child, “[w]e apply the adoption laws of the State or foreign country where the adoption took place,” not the inheritance laws of the state in which the wage earner was domiciled when he died. 20 C.F.R. § 404.356.
Agency policy provides that an adoption decree and an amended birth certificate issued as a result of the adoption may be sufficient evidence of legal adoption (with exceptions not applicable here). POMS GN 00307.220 (“Foreign Adoptions”). However, the adoption must be valid under the law of the state or foreign country where it took place. POMS GN 00306.135. This POMS section indicates that at least one party to the adoption (either the child or adopting parent) must have been domiciled or actually residing in that jurisdiction at the time of the adoption. POMS GN 00306.135(1). It is not clear if this provision applies to customary adoptions, or whether and how it may apply to RMI citizens who are living and working in the United States pursuant to the CFA. Furthermore, this provision does not appear to accurately reflect the laws of all states or foreign jurisdictions. See, e.g., POMS PR 01325.302 Russia (observing that some state laws automatically recognize foreign adoptions as valid and finding adoption finalized in Russia sufficient to meet agency policy even where law of adoptive parents’ state did not automatically recognize foreign adoptions); PR 01325.146 Guatemala (finding Guatemalan adoption valid where INS had admitted child to the United States as an “Immediate Relative-3” (IR-3)); but see, PR 01325.154 Haiti (acknowledging domicile/residence provision and finding that Haitian adoption was valid where judgment stated that the Haitian adoptive father became a naturalized U.S. citizen but had his primary domicile in Haiti). When an applicant for child survivor’s benefits is adopted abroad, the agency applies the adoption laws of the country where the adoption took place and need not determine if the domiciliary state recognizes the foreign adoption. POMS GN 00306.155(C). However, with certain limitations, courts of the forum state do recognize the status of adoption created under the laws of another state or nation by a court having jurisdiction. 2 Corpus Juris Secondum Adoption of Persons § 139.
Customary Adoption in the Republic of Marshall Islands
The RMI Constitution explains that “`customary law’” means any custom having the force of law in the Marshall Islands; and includes any Act declaring the customary law.” RMI Constitution, Art. XIV. A customary adoption is an adoption created by operation of custom, that is, a common law adoption. See, e.g., Matter of Nq, 14 I. & N. Dec. 135 (BIA 1972); Matter of P~, 14 I. & N. Dec. 155 (BIA 1972). According to an article on adoptions in the Marshall Islands, South Pacific, Polynesia and Micronesia, adoption is relatively frequent, public, and casual, and involves only partial transfer of the adopted child to the new family. Jini , J.D., M.S.W., M.S. & Stephanie , B.S., See: If I give you my Child, Aren’t we family? A Study of Birthmothers participating in Marshall Islands-U.S. Adoptions, available at http://www.rmicaa.com/RobyMatsumura.pdf.pdf .
In the Marshall Islands, clan members (determined by matrilineal heritage) adopt children as a response “to the adoptive parents’ need for labor or care, or to solidify family relationships, to prevent a cross cousin marriage, or to ensure the rights of inheritance.” Id. Historically, relatives would adopt children within the family clan. Families considered adoption a way to re-distribute people within the extended clan according to available resources and incorporate outsiders into relationships for the purpose of exchanging resources into the future. Life in the Republic of the Marshall Islands, 58 (Anono , Veronica, Linda eds., 2004). Marshallese traditional adoptions usually allowed the birth parents to continue to have a relationship with their child. Id.
The RMI High Court has concurrent jurisdiction with the District Courts to grant any adoption. Domestic Relations Act, 26 MIRC Ch. 1, Pt. I, § 102. When an adoption has been effected in the RMI according to recognized custom, and someone questions or disputes the validity of the adoption “in such a manner as to cause serious embarrassment to or affect the property rights of any of the parties or their children,” the parties or their children may petition the High Court for a decree confirming the customary adoption. 26 MIRC Ch. 1, Pt. I, § 106. An individual commences adoption proceedings by filing a signed and sworn declaration. 26 MIRC Ch. 1, Pt. I, § 103(1). The petition must set forth sufficient facts as to the residence of the parties to show the court has jurisdiction. 26 MIRC Ch. 1, Pt. I, § 103(2). If, after notice to all living parties and after a hearing, the RMI High Court is satisfied that the alleged adoption is valid in accordance with recognized custom in the RMI, the RMI High Court shall enter a decree confirming the adoption. 26 MIRC Ch.1, Pt. I, § 106.
Tarkij and John, Rine’s maternal family members, adopted Capella in accordance with RMI customary law. They took Capella into their home, and accepted her as their child. Capella has been under the care, custody, control and supervision of John and Tarkij since she was three months old. After John’s death, Tarkij petitioned the RMI High Court for a decree “confirming” the customary adoption under 26 MIRC Ch. 1, Pt. I, § 106. The RMI High Court confirmed Tarkij’s adoption as of October 16, 2004, approximately one month after she came into John’s home, and directed that a new birth certificate be issued for Capella. Although the RMI High Court specifically declared only that Capella was Tarkij’s child, it is clear from the Court’s order that Tarkij and John adopted Capella in accordance with RMI customary law. In addition, the High Court order confirming the earlier adoption was consistent with RMI law. See id.; cf. Memorandum from Regional Chief Counsel, Denver to Regional Commissioner, Denver Region: Validity of Adoption Proceedings in a Native American Indian Tribal Court within the State of Montana (May 17, 1999) (finding child was legally adopted under jurisdiction, laws, policies, and customs of the Fort Belknap Community of the Fort Belknap Reservation). Based on the specific facts at issue here, we therefore conclude that, pursuant to RMI custom, Capella’s foreign adoption was valid as of October 16, 2004.
In addition, Capella was “dependent” on John and Tarkij. 20 C.F.R. § 404.362(a) (if you were legally adopted by the insured before he or she became entitled to old-age or disability benefits, you are considered dependent on him or her); POMS GN 00306.136(B) (“A child legally adopted by the NH before the NH’s death is deemed dependent on the adopting parent at the time of death.”); accord GN 00306.008(A)(1). Thus, Capella qualifies for child survivor’s benefits on John’s account based on the application filed on August 24, 2009. Alternatively, if the August 8, 2010 RMI High Court decree is considered the date of adoption, Capella qualifies for survivor benefits on John’s account because she was legally adopted by Tarkij within two years of John’s death on August 22, 2009, and lived with John at the time of his death. See 20 C.F.R. § 404.362(c); POMS GN 00306.145 (Child Legally Adopted by NH’s Surviving Spouse).