PR 01510.010 District of Columbia
A. PR 05-196 Equitable Adoption in the Mexican State of Nayarit, Robert B~ (~)
DATE: August 20, 1999
Under District of Columbia law, because Mexico is a civil law country and its states do not recognize equitable or common law adoption, the District of Columbia courts would also not recognize the claimant as the equitably adopted child of the number holder.
We were asked by the Policy and Legislation Division to advise you whether, pursuant to section 216(h)(2)(A) of the Social Security Act (Act), the child applicant would be considered to be the child of the insured worker under the intestate succession laws of the District of Columbia (D.C.). Based on our review of D.C. law, the law librarian's opinion concerning Mexican law, and our understanding of the facts as presented to us, we do not believe the child applicant, Dulce M. B~ F~, would be considered the child of the insured worker, Robert B~, under the intestate succession laws of D.C.
The facts as we understand them indicate that Robert, Dulce, and Robert's wife, Candelaria, are presently domiciled in Nayarit, Mexico. Dulce was born out of wedlock on July 3, 1988, in Jalisco, Mexico. On June 9, 1989, Dulce's biological mother signed a document stating that she gave her "mother's rights" to Candelaria. The document also stated that "[a]bout the child that is sick and whose health I cannot care for like it should be I promise not to interfere in her private life, and my only request is that I be able to see her when you say I can." The document was executed before an auxiliary judge in San V~, Nayarit, Mexico. In January 1990 and in December 1993, Robert and Candelaria attempted to adopt Dulce in accordance with local Mexican law, but were unable to do so because Dulce's biological mother disappeared from the region, was never found, and did not appear before the proper authorities to complete the adoption process. There was no information with regard to Dulce's biological father.
On April 6, 1995, when Dulce was five years old, a certificate of birth was issued by the Office of the Civil Registry of San V~, Nayarit, showing Robert as Dulce's biological father and Candelaria as her biological mother. Dulce has lived continuously with Robert and Candelaria since June 9, 1989. Robert and Candelaria have supported Dulce and treated her as their child at all times, and Dulce treats them as her parents.
In April 1999, at the request of the Policy and Legislation Division, the Law Library of Congress issued a report entitled "Civil Status of Children and Inheritance Rights Under the Laws of Nayarit, Mexico." The report concluded that Dulce could not be considered the legally adopted child of Robert under the laws of Nayarit, Mexico. According to the law librarian, for a valid adoption, there must be a court decree authorizing the adoption, a subsequent registration of the decree in the Office of the Civil Registry, and the annotation of the decree on the birth certificate of the adoptee. None of these requirements were complied with in this case. The report also concluded that Dulce could not be considered the equitably adopted child of Robert because equitable adoption is not recognized by Nayarit or any other state in Mexico. However, the report also concluded that, based on the certificate of birth issued by the Nayarit authorities, Dulce would be treated as the offspring of Robert and Candelaria and would be able to inherit intestate personal property from Robert under the law of intestate succession of that state, even though the law and the facts reveal that Dulce is not the biological child, the adopted, or equitably-adopted child of Robert.
Section 216(h)(2)(A) of the Act provides that an applicant for child's insurance benefits will be deemed a child of the insured individual if she would be entitled to inherit under the intestacy laws of the state in which the insured individual is domiciled at the time such applicant filed her application. In this case, the insured individual, Robert, was domiciled in Nayarit, Mexico at the time Dulce filed her application for child insurance benefits. Under section 216(h)(2)(A), when the insured individual's domicile is outside the United States at the time the applicant files her application, the intestate succession laws of D.C. apply in determining whether the applicant is the child of an insured individual.
Under District of Columbia law, an adopted child is entitled to inherit to the same extent as a natural child. D.C. CODE ANN. § 16-312(a) (1997) provides that "[a] final decree of adoption establishes the relationship of natural parent and natural child between adopter and adoptee for all purposes, including mutual rights of inheritance and succession as if adoptee were born to adopter." D.C. will also recognize adoption judgments of other states. In re Gray's Estate, 168 F. Supp. 124, 126 (D.D.C. 1958).
Although D.C. gives full faith and credit to adoption judgments issued by other states, comity is the basis on which D.C. recognizes judgments of foreign countries. A judgment rendered in a foreign nation may be enforced if it does not violate American public policy. Tahan v. Hodgson, 662 F.2d 862 (D.C. Cir. 1981). But, before a foreign judgment will be recognized through comity, the foreign court's jurisdictional basis for entertaining the suit must be analyzed to determine whether the judgment is valid. Rzeszotarski v. Rzeszotarski, 296 A.2d 431, 437 (D.C. 1972).
In this case, however, Dulce was never legally adopted. While Robert and Candelaria allegedly made attempts to adopt Dulce in accordance with local Mexican statutory law, their attempts were unsuccessful. Hence, there was never any formal judgment of adoption rendered in Mexico. This was confirmed by the law librarian who reported that based on facts of this case, Dulce could not be considered the legally adopted child of Robert under local Mexican law because none of the statutory requirements for legal adoption were complied with. Thus, since there was no evidence of a judgment of adoption rendered in Mexico, there was no judgment that D.C. could have recognized through comity to find that Dulce was an adopted child.
Similarly, D.C. would not recognize Dulce as the adopted child of Robert under the doctrine of equitable adoption. According to the law librarian, Mexico is a civil law country and its states do not recognize equitable or common law adoption. Because Mexico would not recognize Dulce as Robert's equitably adopted daughter, D.C. would also not recognize Dulce as an equitably adopted child under its law. See In re McConnell's Estate, 268 F. Supp. 346, 347 (D.D.C. 1967); In re Jarboe's Estate, 235 F. Supp. 505, 507-08 (D.D.C. 1964) (recognizing that when determining whether a child is equitably adopted, federal courts in D.C. will look to law of the state where the alleged equitable adoption occurred). Accordingly, because equitable adoption is not recognized in Mexico and because there was no valid adoption under Mexican statutory law, Dulce would not be recognized as a child under the intestacy laws of D.C.
Finally, with regard to the birth certificate, while it is true that such a document could serve as evidence of parentage, we do not believe the birth certificate in this case would be sufficient to establish Dulce as Robert's child. As we understand the facts, the birth certificate apparently identifies Robert as Dulce's biological father and Candelaria as Dulce's biological mother. While this document may be considered valid under local Mexican law simply because it is recorded in the Office of Civil Registry, we do not believe D.C. would give it much credence. As noted in the law librarian's report, "we cannot ascertain the reasons why the Office of the Civil Registry . . . registered the child as the offspring of the insured worker and his wife." Thus, the circumstances surrounding the issuance of the birth certificate are not entirely clear. Indeed, the facts thus far, suggest the birth certificate is not valid. First, the fact that Robert and Candelaria attempted to adopt Dulce on two separate occasions tends to cast doubt on the validity of the birth certificate. Second, under local Mexican law, a child's parents must register their child within one hundred and eighty days after the child's birth or they will be fined. The fact that, here, Robert and Candelaria did not obtain a birth certificate for Dulce until April 1995, over five years after her birth, only further suggests that Robert and Candelaria are not her biological parents and that the birth certificate may be based on false or erroneous information.
As stated above, D.C. will recognize foreign judgments through comity, but the foreign judgment must be valid and not violate American public policy. In this case, however, the circumstances suggest that the birth certificate is not valid. Accordingly, it is very unlikely that D.C. would rely on the birth certificate recorded in Nayarit, Mexico, to find that Dulce was now the biological child of Robert.
Hence, based on the evidence presented to us, we do not believe Dulce would be recognized as the child of Robert B~ under the intestate succession laws of D.C.
James A. W~
Regional Chief Counsel
Patricia M. S~
Deputy Chief Counsel
Assistant Regional Counsel
B. PR 83-030 Ralph H~, ~, Equitable Adoption - DC
DATE: October 4, 1983
WHICH STATE LAW GOVERNS — DISTRICT OF COLUMBIA
In evaluating a claim for child's benefits under section 216(h)(2)(A) of the Social Security Act, if a wage earner (W/E) was not domiciled in any State (at the time an application is filed in a life case or at the time of the W/E's death in a death case), a child's status is determined by the law that would be applied by the courts of the District of Columbia.
D.C. courts apply the substantive law of the wage earner's foreign domicile. (H~, Ralph, ~ — RAIX (T~), to RC, 10/04/83.)
EQUITABLE ADOPTION — DISTRICT OF COLUMBIA
Where the natural mother has signed an agreement giving over all rights to the child to a family with whom the child has continuously lived and who have treated the child as their own, no inheritance rights would vest as the law of Michoacan, Mexico does not recognize the concept of equitable adoption. (H~ Ralph, ~ — RAIX (T~, to RC, 10/04/83.)
LEGITIMACY AND LEGITIMATION — DISTRICT OF COLUMBIA
The Michoacan (Mexico) civil code provides that an individual's civil status is to be determined solely by the records maintained in the Office of the Civil Registry. Consequently, if a wage earner is officially recorded as a child's natural father, the child is presumed to be his natural child. The child's status can only be changed if a judgment invalidates the birth registration record. (H~ Ralph, ~ — RAIX (T~, to RC, 10/04/83.)
On January 8, 1980, an application for surviving child's insurance benefits was filed on behalf of Maria Y. H~ (hereinafter referred to as "Judy"). The wage earner, Ralph H~, had died on December 18, 1979, while domiciled in the state of Michoacan, Mexico. Judy was identified on the application as the wage earner's natural, legitimate child. A subsequent investigation revealed that Judy was not the wage earner's natural child and that she had not been legally adopted by the H~.
On the day of Judy's birth, July 9, 1976, her natural mother signed an agreement giving the child to the H~ and "giving up all [her] rights and voluntarily renouncing any claim, to the adoptive parents [the H~]." Four witnesses subscribed to the agreement. Judy has lived with the H~ continuously since birth. They have treated her as their own child and Mrs. H~ claims that the child viewed the wage earner as her father. The H~ listed themselves as the natural parents on Judy's official birth registration certificate and publicly maintained that she was their natural offspring. No steps were taken toward a formal adoption during the wage earner's lifetime.
Pursuant to section 216 (h)(2)(A) of the Social Security Act, an applicant for benefits qualifies as a wage earner's "child" if he or she would inherit as such under the succession laws of the wage earner's domicile at the time of his or her death. Where, as here, the wage earner was not domiciled in the United States, the child's status is determined by the law that would be applied by the courts of the District of Columbia. For purposes of this provision, District of Columbia courts apply the substantive law of the wage earner's foreign domicile. Gonzalez v. Hobby, 110 F. Supp. 893 (D.P.R. 1953), aff'd 213 F.2d 68 (lst Cir. 1954); GC opinion re Juan F. G~, September 1, 1976 (copy in claims file) . Accordingly, you have sought our assistance in determining whether or not Judy would be entitled to inherit from the wage earner under the laws of Michoacan, Mexico. The discussion which follows is based primarily upon information provided to us by the staff of the Law Library of the Library of Congress.
Michoacan does not recognize the doctrine of equitable adoption. Only formal adoption decrees, registered in the Office of the Civil Registry, are valid in that jurisdiction. Therefore, the agreement by which Judy's mother purported to relinquish her parental status in favor of the H~, by itself, did not effect an adoption and did not bestow inheritance rights upon Judy as the wage earner's adopted child.
Judy did acquire inheritance rights, however, by means of the official birth registration filed on July 25, 1976. The registration identified her as the natural child of the wage earner and his wife. Article 32 of the Michoacan Civil Code provides that an individual's civil status is to be determined solely by the records maintained in the Office of the Civil Registry. No other information may be relied upon to contradict or vary the information contained in these records. Therefore, because the wage earner is officially recorded as Judy's natural father, Judy is presumed to be his natural daughter. As such, she would be entitled to inherit pursuant to Article 344 of the Michoacan Civil Code. See also GC Opinion re Juan F. G~, cited above.
Theoretically, Judy's present status as the wage earner's child is subject to attack. Acts and statements which provided the basis for an official registry record may be challenged in court by any interested party (e.g., the H~ legal heirs). If there is adequate proof of an inaccuracy or error, the registration may be declared void. In the unlikely event that such an action is brought, Judy would undoubtedly lose her status as the wage earner's child in the Civil Registry records. Unless and until a judgment invalidating the birth registration issues, however, Judy will continue to enjoy the rights of a natural child, including the right to inherit from the wage earner.
Articles 354 and 83, Codigo Civil para el E.L.Y.S. de Michoacan (Ed. Cajica, Puebla, 1976) (Michoacan Civil Code).
See Article 52 of the Michoacan Civil Code.