QUESTION
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).
SHORT ANSWER
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.
FACTUAL BACKGROUND
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.
DISCUSSION
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).