IN THE MATTER OF THE APPOINTMENT OF LEGAL GUARDIAN OF KATE ELIAS AND GABRIEL ELIAS, Minors, SRUE T. ELIAS,Petitioner

POHNPEI SUPREME COURT REPORTS

VOL. 2

[2 P. S. Ct. R 404]

IN THE MATTER OF THE

APPOINTMENT OF LEGAL GUARDIAN

OF KATE ELIAS AND GABRIEL ELIAS, Minors

SRUE T. ELIAS, Petitioner

Pohnpei Civil Action No. 11-87

Trial Division of the Pohnpei Supreme Court

June 15, 1987

Petition by the natural mother of a child and customary adopted mother of another child to be appointed a legal guardian of both children apparently for the purpose of recovering under a life insurance policy in which the children were named beneficiaries. The Trial Division of the Pohnpei Supreme Court, JUDAH C. JOHNNY, Associate Justice, held that Pohnpeian custom provides that the natural parents are the natural guardians of their children, and that adoptive parents are natural guardians of their adopted children.

1. Domestic Relations - Guardians of Infants - Custom

Under Pohnpeian custom the natural parents are the natural guardians of their children, and adoptive parents are the natural guardians of their adopted children.

[2 P. S. Ct. R 405]

2. Domestic Relations - Guardianship - Incidents

The incidents of guardianship by nature as recognized in the United States are different from those prevailing in Pohnpei; thus, while in some jurisdictions of the United States, it is considered that a natural guardianship confers only the right to tire custody of the person of the ward, that the guardian has no right of custody or control over the estate (real or personal) of the ward, unless the right is conferred by statute or by a valid departmental regulation or usage, that a natural guardian cannot, therefore, sell or lease the ward's real or personal property or even apply for and obtain a judicial order for sale, that he has no authority to receive or receipt for a legacy payable to the infant, to collect choses in action due to the infant, or to consent to the surrender of life insurance which has been taken out for the benefit of the ward, and that, in fact, a father cannot solely by reason of his parental relation to the child receive payment and enter satisfaction of a judgment recovered in favor of his child, and that in certain jurisdictions, even if the guardian brings a suit in the child's name as his next friend he has no right to demand and receive the property recovered therefore for that purpose a guardian of the estate must be appointed, these incidents are far removed from the incidents of guardianship under Pohnpeian custom.

3. Domestic Relations - Guardianship - Incidents - Pohnpeian Custom

Under Pohnpeian custom, recognized as law in Pohnpei (Pohnpei Constitution Article 5, Section 3) the rights of the parents (natural or adoptive) include guardianship of the person of the ward (natural or adoptive and his estate, real or personal.

4. Domestic Relations - Guardian - Ward Relationship

Where the relationship of the parents and their child is established, either natural, blood relation or adoptive, the right of parents as guardians, natural or adoptive, is simultaneously established;

5. Domestic Relations - Adoption

Where the petitioner, the alleged customary adoptive parent of a minor child, petitions the Court to be appointed the legal guardian of the child, and there is no dispute as to the validity of the adoption, the adopting, is presumed valid.

[2 P. S. Ct. R 406]

6. Domestic Relations - Guardianship

Where the petitioner for appointment as guardian of two minor children is the natural parent of one of the children and the adoptive parent of the other, in the absence of any statutory or customary limitation of rights, by virtue of the relationship of the petitioner to the children, she is the guardian both natural and legal of the persons and estates of the children.

7. Domestic Relations - Guardianship - Pohnpeian Custom

Under Pohnpeian custom guardianship is only an ingredient of parenthood, and once parenthood is established, there is no need to establish guardianship separately, for doing so would serve no purpose but understate the rights inherent in parent-child relationship

8. Domestic Relations - Evidence - Proof of Relationship

The establishment of natural relationship may be by proof of official records such as the vital statistical records, or the family register used in the municipal offices, or, perhaps, by affidavit; establishment of relationship by adoption under Title 39 of the Trust Territory Code, may be by proof of Court records; and proof of customary adoption may be by reference to the family register used in the municipal offices, or perhaps by affidavit, and in the event of contest, under Title 15 of the Trust Territory Code.

9. Laws of Pohnpei

Titles 13, 15 and 39 of the Trust Territory Code remain effective in Pohnpei State after November 3,1986, notwithstanding the termination of the Trusteeship Agreement on that date.

JUDAH C. JOHNNY, Associate Justice

The petitioner, Srue T. Elias, through counsel Micronesian Legal Services Corporation, by Ander Norman, brought this matter seeking an Order of this Court declaring that she is appointed as legal guardian of Kate Elias, and Gabriel Elias both

[2 P. S. Ct. R 407]

minors.

In a hearing held before me, I found:

1. The petitioner and one Naped Elias were legally married. Naped Elias died on October 9,1986.

2. The minor Kate Elias, a female, born May 14,1969, is the natural issue of Naped Elias and Srue Elias.

3. Gabriel Elias, a male, born October 4, 1978, is the natural child of Dusty Elias, a natural child of Naped Elias and Srue Elias, and his wife Susie Elias.

4. Gabriel Elias is adopted by Naped Elias and Srue Elias under recognized Pohnpei Custom.

5. Naped Elias designated the named minors to share in the benefits of his life insurance policy.

6. There is apparent insurance restriction in the issuance of the death benefits to the petitioner, Srue Elias. From the above facts, the petitioner brings this matter to obtain an order of this Court, appointing her as the legal guardian of the minors.

OPINION

We have here a situation where the petitioner is the real, and

[2 P. S. Ct. R 408]

natural mother of one child, and the customary adopted mother of the other. She comes to the Court asking to be appointed a legal guardian of both.

[1] There is no statute of this State that governs guardianship of children. There is however Pohnpei custom which provides that the natural parents are the natural guardians of their children, and that adoptive parents are natural guardians of their adopted children.

[2] It is of interest to note the differing relationship in the incidents of guardianship by nature of recognized in the United States and here in Pohnpei. For example, in some jurisdictions of the United States, it is considered that a natural guardianship confers only the right to the custody of the person of the ward. The guardian has no right of custody or control over the estate, real or personal, of the ward, unless the right is conferred by statute or by a valid departmental regulation or usage. See La Fortune v. Commissioner (CA 10) 263 F 2d 186; Re Hight, 194 Oakla 214,148 P 2d 475; 6 ALR 115; Bombardier v. Goodrich, 94 Vt 208,110 A 11, 9 ALR 1028. A natural guardian cannot, therefore, sell or lease the ward's real or personal property or even apply for and obtain a

[2 P. S. Ct. R 409]

judicial order of sale. He has no authority to receive or receipt for a legacy payable to the infant, to collect choses in action due to the infant, or to consent to the surrender of life insurance which has been taken out for the benefit of the ward. In fact, a father cannot, solely by reason of his parental relation to his child, receive payment and enter satisfaction of a judgment recovered in favor of his child. In certain jurisdictions, even if the guardian brings a suit in the child's name as his next friend, he has no right to demand and receive the property recovered. For that purpose, a guardian of the estate must be appointed. These are incidents far removed from the incidents of guardianship under Pohnpei custom.

[3-4] Under Pohnpei custom, recognized as law in this State (Article 5, Section 3, Pohnpei State Constitution), the rights of the parents, natural or adoptive parents, include guardianship of the person of the ward (natural or adoptive) and his estate, real or personal. It follows therefore, in my opinion, that where the relationship of the parents and their minor child is established, either natural, blood relation or adoptive, the right of the parents as guardians, natural or adoptive is simultaneously established.

[9] Granted there exist two statutes in this State which deal with probate of estates of decedents, they do not relate directly to

[2 P. S. Ct. R 410]

the relief sought here. The statutes, one found under Title 13 of the Code of the Trust Territory of the Pacific Islands, a law which we have previously held to remain in effect in this State, notwithstanding the termination of the Trusteeship Agreement on November 3, 1986 (In re Mack and Others, Juvenile Case Nos: 453-86 and 499-86) (1987), provides for the filing of a complaint, by a surviving spouse or other adult member of family relation to the decedent, classified under Section 5 of the title, where the person or persons entitled to the personal property of the decedent cannot readily obtain possession thereof, to ask for the issuance of an order that such personal property be transferred to the complainant. The other, found in State Law D.L. No. 4L-155-78, is the law which establishes the rule of succession in cases where a person dies intestate. In neither one of these laws is there a statement providing for appointment of a parent as a legal guardian of the person of his or her child.

[5-7] There is no showing that the natural child Kate was adopted by anyone, either in accordance with Pohnpei Custom or under Title 39 of the Trust Territory Code, which we also have declared remain in effect in this State. Mack, supra. There is also

[2 P. S. Ct. R 411]

no dispute as to the validity of the adoption of Gabriel Elias by Naped Elias and Srue Elias. It should be presumed to be valid. Therefore, absent any statutory or customary limitation of rights in this instance, it is my opinion that by virtue of the kinship relationship of Srue Elias to Kate Elias as natural mother, and Gabriel Elias as adoptive mother, she is the guardian, both natural and legal, of the persons and estates of these children. Clearly under Pohnpei custom, guardianship is only an ingredient of parenthood. Once parenthood is established, there is no need to establish guardianship separately, for doing so would serve no purpose but ;understate the rights inherent in parent-child relationship.

[8-9] Establishment of natural relationship, in my view, may be attained by proof of official records such as the vital statistical records, or the family register used in the municipal offices, or, perhaps, by affidavit. Establishment of relationship by adoption under Title 39, may be had by proof of Court records. Proof customary adoption, in my view may be done by reference to the of family register used in the municipal offices, or perhaps by affidavit, and in the event of contest, under Title 15 of the Trust Terry Code, which, again, we have held to remain effective in

[2 P. S. Ct. R 412]

this State after November 3, 1986 ( Mack, supra).

It is Ordered.


	POHNPEI SUPREME COURT REPORTS VOL. 2 [2 P. S. Ct. R 404] IN THE MATTER OF THE APPOINTMENT OF LEGAL GUARDIAN OF KATE ELIAS AND GABRIEL ELIAS, Minors SRUE T. ELIAS, Petitioner Pohnpei Civil Action No. 11-87 Trial Division of the Pohnpei Supreme Court June 15, 1987 Petition by the natural mother of a child and customary adopted mother of another child to be appointed a legal guardian of both children apparently for the purpose of recovering under a life insurance policy in which the children were named beneficiaries. The Trial Division of the Pohnpei Supreme Court, JUDAH C. JOHNNY, Associate Justice, held that Pohnpeian custom provides that the natural parents are the natural guardians of their children, and that adoptive parents are natural guardians of their adopted children. 1. Domestic Relations - Guardians of Infants - Custom Under Pohnpeian custom the natural parents are the natural guardians of their children, and adoptive parents are the natural guardians of their adopted children. [2 P. S. Ct. R 405] 2. Domestic Relations - Guardianship - Incidents The incidents of guardianship by nature as recognized in the United States are different from those prevailing in Pohnpei; thus, while in some jurisdictions of the United States, it is considered that a natural guardianship confers only the right to tire custody of the person of the ward, that the guardian has no right of custody or control over the estate (real or personal) of the ward, unless the right is conferred by statute or by a valid departmental regulation or usage, that a natural guardian cannot, therefore, sell or lease the ward's real or personal property or even apply for and obtain a judicial order for sale, that he has no authority to receive or receipt for a legacy payable to the infant, to collect choses in action due to the infant, or to consent to the surrender of life insurance which has been taken out for the benefit of the ward, and that, in fact, a father cannot solely by reason of his parental relation to the child receive payment and enter satisfaction of a judgment recovered in favor of his child, and that in certain jurisdictions, even if the guardian brings a suit in the child's name as his next friend he has no right to demand and receive the property recovered therefore for that purpose a guardian of the estate must be appointed, these incidents are far removed from the incidents of guardianship under Pohnpeian custom. 3. Domestic Relations - Guardianship - Incidents - Pohnpeian Custom Under Pohnpeian custom, recognized as law in Pohnpei (Pohnpei Constitution Article 5, Section 3) the rights of the parents (natural or adoptive) include guardianship of the person of the ward (natural or adoptive and his estate, real or personal. 4. Domestic Relations - Guardian - Ward Relationship Where the relationship of the parents and their child is established, either natural, blood relation or adoptive, the right of parents as guardians, natural or adoptive, is simultaneously established; 5. Domestic Relations - Adoption Where the petitioner, the alleged customary adoptive parent of a minor child, petitions the Court to be appointed the legal guardian of the child, and there is no dispute as to the validity of the adoption, the adopting, is presumed valid. [2 P. S. Ct. R 406] 6. Domestic Relations - Guardianship Where the petitioner for appointment as guardian of two minor children is the natural parent of one of the children and the adoptive parent of the other, in the absence of any statutory or customary limitation of rights, by virtue of the relationship of the petitioner to the children, she is the guardian both natural and legal of the persons and estates of the children. 7. Domestic Relations - Guardianship - Pohnpeian Custom Under Pohnpeian custom guardianship is only an ingredient of parenthood, and once parenthood is established, there is no need to establish guardianship separately, for doing so would serve no purpose but understate the rights inherent in parent-child relationship 8. Domestic Relations - Evidence - Proof of Relationship The establishment of natural relationship may be by proof of official records such as the vital statistical records, or the family register used in the municipal offices, or, perhaps, by affidavit; establishment of relationship by adoption under Title 39 of the Trust Territory Code, may be by proof of Court records; and proof of customary adoption may be by reference to the family register used in the municipal offices, or perhaps by affidavit, and in the event of contest, under Title 15 of the Trust Territory Code. 9. Laws of Pohnpei Titles 13, 15 and 39 of the Trust Territory Code remain effective in Pohnpei State after November 3,1986, notwithstanding the termination of the Trusteeship Agreement on that date. JUDAH C. JOHNNY, Associate Justice The petitioner, Srue T. Elias, through counsel Micronesian Legal Services Corporation, by Ander Norman, brought this matter seeking an Order of this Court declaring that she is appointed as legal guardian of Kate Elias, and Gabriel Elias both [2 P. S. Ct. R 407] minors. In a hearing held before me, I found: 1. The petitioner and one Naped Elias were legally married. Naped Elias died on October 9,1986. 2. The minor Kate Elias, a female, born May 14,1969, is the natural issue of Naped Elias and Srue Elias. 3. Gabriel Elias, a male, born October 4, 1978, is the natural child of Dusty Elias, a natural child of Naped Elias and Srue Elias, and his wife Susie Elias. 4. Gabriel Elias is adopted by Naped Elias and Srue Elias under recognized Pohnpei Custom. 5. Naped Elias designated the named minors to share in the benefits of his life insurance policy. 6. There is apparent insurance restriction in the issuance of the death benefits to the petitioner, Srue Elias. From the above facts, the petitioner brings this matter to obtain an order of this Court, appointing her as the legal guardian of the minors. OPINION We have here a situation where the petitioner is the real, and [2 P. S. Ct. R 408] natural mother of one child, and the customary adopted mother of the other. She comes to the Court asking to be appointed a legal guardian of both. [1] There is no statute of this State that governs guardianship of children. There is however Pohnpei custom which provides that the natural parents are the natural guardians of their children, and that adoptive parents are natural guardians of their adopted children. [2] It is of interest to note the differing relationship in the incidents of guardianship by nature of recognized in the United States and here in Pohnpei. For example, in some jurisdictions of the United States, it is considered that a natural guardianship confers only the right to the custody of the person of the ward. The guardian has no right of custody or control over the estate, real or personal, of the ward, unless the right is conferred by statute or by a valid departmental regulation or usage. See La Fortune v. Commissioner (CA 10) 263 F 2d 186; Re Hight, 194 Oakla 214,148 P 2d 475; 6 ALR 115; Bombardier v. Goodrich, 94 Vt 208,110 A 11, 9 ALR 1028. A natural guardian cannot, therefore, sell or lease the ward's real or personal property or even apply for and obtain a [2 P. S. Ct. R 409] judicial order of sale. He has no authority to receive or receipt for a legacy payable to the infant, to collect choses in action due to the infant, or to consent to the surrender of life insurance which has been taken out for the benefit of the ward. In fact, a father cannot, solely by reason of his parental relation to his child, receive payment and enter satisfaction of a judgment recovered in favor of his child. In certain jurisdictions, even if the guardian brings a suit in the child's name as his next friend, he has no right to demand and receive the property recovered. For that purpose, a guardian of the estate must be appointed. These are incidents far removed from the incidents of guardianship under Pohnpei custom. [3-4] Under Pohnpei custom, recognized as law in this State (Article 5, Section 3, Pohnpei State Constitution), the rights of the parents, natural or adoptive parents, include guardianship of the person of the ward (natural or adoptive) and his estate, real or personal. It follows therefore, in my opinion, that where the relationship of the parents and their minor child is established, either natural, blood relation or adoptive, the right of the parents as guardians, natural or adoptive is simultaneously established. [9] Granted there exist two statutes in this State which deal with probate of estates of decedents, they do not relate directly to [2 P. S. Ct. R 410] the relief sought here. The statutes, one found under Title 13 of the Code of the Trust Territory of the Pacific Islands, a law which we have previously held to remain in effect in this State, notwithstanding the termination of the Trusteeship Agreement on November 3, 1986 (In re Mack and Others, Juvenile Case Nos: 453-86 and 499-86) (1987), provides for the filing of a complaint, by a surviving spouse or other adult member of family relation to the decedent, classified under Section 5 of the title, where the person or persons entitled to the personal property of the decedent cannot readily obtain possession thereof, to ask for the issuance of an order that such personal property be transferred to the complainant. The other, found in State Law D.L. No. 4L-155-78, is the law which establishes the rule of succession in cases where a person dies intestate. In neither one of these laws is there a statement providing for appointment of a parent as a legal guardian of the person of his or her child. [5-7] There is no showing that the natural child Kate was adopted by anyone, either in accordance with Pohnpei Custom or under Title 39 of the Trust Territory Code, which we also have declared remain in effect in this State. Mack, supra. There is also [2 P. S. Ct. R 411] no dispute as to the validity of the adoption of Gabriel Elias by Naped Elias and Srue Elias. It should be presumed to be valid. Therefore, absent any statutory or customary limitation of rights in this instance, it is my opinion that by virtue of the kinship relationship of Srue Elias to Kate Elias as natural mother, and Gabriel Elias as adoptive mother, she is the guardian, both natural and legal, of the persons and estates of these children. Clearly under Pohnpei custom, guardianship is only an ingredient of parenthood. Once parenthood is established, there is no need to establish guardianship separately, for doing so would serve no purpose but ;understate the rights inherent in parent-child relationship. [8-9] Establishment of natural relationship, in my view, may be attained by proof of official records such as the vital statistical records, or the family register used in the municipal offices, or, perhaps, by affidavit. Establishment of relationship by adoption under Title 39, may be had by proof of Court records. Proof customary adoption, in my view may be done by reference to the of family register used in the municipal offices, or perhaps by affidavit, and in the event of contest, under Title 15 of the Trust Terry Code, which, again, we have held to remain effective in [2 P. S. Ct. R 412] this State after November 3, 1986 ( Mack, supra). It is Ordered.