Adopt. and Name Change of Selina Eliam

POHNPEI LAW REPORTS

VOL. 3

[3 PN.L.R. 58]

IN THE MATTER OF THE

ADOPTION AND NAME CHANGE OF

SELINA ELIAM,

a Minor

SOIDER HENRY AND LOIS HENRY,

Petitioners

Pohnpei Civil Action No. 258-87

Trial Division of the Pohnpei Supreme Court

March 16, 1988

Petition for the adoption of a minor child. The natural mother was a citizen of the Federated States of Micronesia and domiciled in the Municipality of Sokehs, Pohnpei, but the alleged father was a citizen of the Republic of the Philippines, temporarily resident in Pohnpei. The mother of the child claimed in her testimony that she and the father were married under local custom. The father filed a written consent and personally testified. The Trial Division of the Pohnpei Supreme Court, JUDAH C. JOHNNY, Associate Justice, granting the petition, held (1) that the alleged marriage was invalid as it did not comply with the statutory requirements relating to marriages between a citizen and a noncitizen or between two noncitizens; (2) that by statute the noncitizen father could not be a part of the local custom; and (3) that the father of the child not being the legal parent, his consent to the adoption was not required under statute, nor was he entitled to notice of the adoption.

1. Domestic Relations - Marriages - Non-citizens - Status

For a marriage between a non-citizen and citizen or two citizens [of Pohnpei] to be valid the provisions of 39 TTC 51, 52 and 53 relating to the filing for and obtaining of a marriage license, and the performance or solemnization of the marriage by an ordained minister, a judge, a governor or any person authorized by law to perform marriages, shall be complied with.

[3 PN.L.R. 59]

2. Custom - Noncitizens

One who is not a citizen [of Pohnpei] does not by simple residence become part of the local custom, no matter how much he may profess his desire to be so.

3. Domestic Relations - Adoption - Parental Consent

Where the father of a child to be adopted is not the legal parent the father's consent is not required to the adoption, nor is he entitled to notice thereof.

4. Domestic Relations - Marriage - Children Born out of Wedlock Status

A child born out of wedlock is an illegitimate child with respect to its relationship to the father.

5. Domestic Relations - Adoption - Illegitimate Child - Status

The father of an illegitimate child is not a legal parent within the meaning of the adoption statutes, until such relationship is legitimatized.

6. Domestic Relations - Marriage - Illegitimate Child - Legitimatization

An illegitimate child may be legitimatized by the subsequent marriage of the putative father to the mother, and the acknowledgment by the father, the child to be his own.

Counsel for Petitioner: Ander Norman

Trial Counselor

Micronesian Legal Services Corporation

JUDAH C. JOHNNY, Associate

[3 PN.L.R. 60]

Before me on February 26, 1988, at Kolonia, Pohnpei State. Appearing were the petitioners and the natural mother, together with counsel the Micronesian Legal Services Corporation, by Ander Norman. The minor was produced in Court. The petitioners and the natural mother testified under oath. While a written consent of the father of the child was not on file, the Court found on examination of the natural mother, of a known living father. Hearings were continued until February 29, 1988, to allow appearance of the father. Hearings began and completed on February 29, 1988, with the father filing consent and personally testifying.

FINDINGS OF FACT

I found the following facts:

1. The petitioners, husband and wife, joined in this petition, are citizens of the Federated States of Micronesia, legal residents of Pohnpei State, domiciled in Sokehs Municipality.

2. The natural mother is a citizen of the Federated States of Micronesia, of Pohnpei State and domiciled in Sokehs Municipality. The alleged father is a citizen of the Republic of the Philippines, temporarily residing in Pohnpei State, with the natural mother in a nonmarital relation.

[3 PN.L.R. 61]

3. The minor was born on October 22, 1987, in Pohnpei State.

4. The petitioners are suitable to adopt the minor. The welfare of the minor will be promoted by this adoption.

CONCLUSIONS OF LAW

[1 ,2] It is perhaps worthy to note that while it was claimed by the natural mother that she and the alleged father were married under local custom, the claim cannot stand. Any procedural form of marriage by a noncitizen is invalid unless it meets the requirements of 39 TTC 51, 52, and 53. These sections provide as follows:

"Section 51. Two noncitizens or noncitizen and citizen; requisites of marriage contract. In order to make valid the marriage contract between two noncitizens or between a noncitizen and a citizen of the Trust Territory, it shall be necessary that:

(1) The male at the time of contracting the marriage be at least eighteen years of age and the female at least sixteen years of age, and if the female is less than eighteen years of age she must have the consent of at least one of her parents or her guardian;

(2) Neither of the respective parties has a lawful spouse living; and

(3) A marriage ceremony be performed by a duly authorized person as provided in this chapter.

[3 PN.L.R. 62]

Section 52. Same; license. (1) The district administrator in each district is authorized to grant a license for marriage between two noncitizens or between a noncitizen and a citizen of the Trust Territory. Upon the filing of an application for such a license, the district administrator shall collect from the parties making the application the sum of two dollars to be remitted to the treasurer of the Trust Territory. (2) In order to obtain a license to marry, the parties shall file with the district administrator an application in writing setting forth as to each party; his or her full name, age, citizenship, residence, occupation, if any whether previously married and the manner of dissolution of such prior marriage or marriages. If the statements in the application are satisfactory and it appears that the parties are free to marry, the district administrator shall issue to the parties a license to marry. Nothing in this section shah be construed to prevent the issuance of a license to marry to two citizens of the Trust Territory."

Section 53. Same; ceremony. The presence of two witnesses, at least, is requisite for the celebration of a marriage between two noncitizens or between a noncitizen in the district in which the license is issued. The marriage rite may be performed and solemnized by an ordained minister, a judge of the high court, a judge of the district court, a district administrator, or by any person authorized by law to perform marriages, upon presentation to him of a license to marry as prescribed in section 52 of this chapter. The person solemnizing a marriage may receive a fee to be stipulated by the parties, or the gratification tendered to him."

Here, the marriage is claimed to be validated through the Pohnpei customary form. Under the statutes however, one who is not a citizen does not, by simple residence, become part of the local custom, no matter how much he may profess his desire to be so: The statutes are clear and unambiguous, that the legislature

[3 PN.L.R. 63]

imposed stricter procedural requirements in marriages involving noncitizens than in marriages involving citizens. In brief, these provisions require, inter alia, the filing for and obtaining of a marriage license, and the performance or solemnization of the marriage by an ordained minister, a judge, a governor or any person authorized by law to perform marriages. This, the natural parents did not do.

What disturbs me in this instance is the imminence that it will be completely unnecessary for one who engages in this form of. marital relation, in good faith, but due to lack of knowledge and information, to seek to have such marriage, void under the statutes, to be declared valid in order for her to lay claim to whatever may remain from the estate of a deceased noncitizen partner, to whom she thought she was married under Pohnpei custom.

[3-6] The question of validity of marriage is not the crux of the petitioner's relief in this matter, although it is deemed worth mentioning for any purpose that it may serve. A resulting question however, is that relating to the status of the child to the father, who is not the husband of the natural mother as held above. Con-

[3 PN.L.R. 64]

versely, a question may be asked, "Is the consent of Jeremias Paraiso (the alleged father) required under the adoption statutes?" I have held that he cannot be a customary husband. He is not a legal husband, too. It follows that until he fulfills the statutory requirements for marriage of noncitizens, he does not become married to the mother of the minor. While he was not married to the mother at the time of birth of the minor, can it be said that his consent is a prerequisite in this adoption. We look to the statutes for the answer to the question. The pertinent statute is 39 TTC 253, which provides in part,

"No adoption shall be granted without either the written consent of, or notice to each of the known living legal parents . . ." Emphasis added.

The statute is clear here that the consent of or notice to a "legal parent" is required. Consent of a legal parent is what the statute requires. The consent of any other category of parent is not required. A child born out of wedlock is an illegitimate child with respect to its relation to its father. The father of an illegitimate child is not a legal parent within the meaning of the adoption statutes, until such relationship shall have been legitimatized. Legitimation of a child may include the subsequent marriage of the putative

[3 PN.L.R. 65]

father to the mother and the acknowledgment by the father, the child to be his own. See In the Matter of Olson Saimon, PCA No. 155-86. In the absence of these, the consent of the father of an illegitimate child to its adoption by another is not essential, and he is not entitled to notice of adoption proceedings. Thus, even though the Court in this matter allowed the putative father to voice his consent, that consent under the determination above is not essential to this adoption, and cannot therefore affect the validity of this adoption. That allowance was made under the ignorance of the Court that the alleged father was a putative father as discussed above.

It is therefore ORDERED, ADJUDGED, and DECREED:

1. The petition of Soider and Lois Henry is granted. They are hereafter jointly the adoptive parents of Selina. They shall hold toward each other the legal relation of parent and child and have all the rights and be subject to all the duties of that relationship.

2. The natural parents are hereby relieved of all parental duties toward the child, all responsibilities for it, and have no further right over it.


	POHNPEI LAW REPORTS VOL. 3 [3 PN.L.R. 58] IN THE MATTER OF THE ADOPTION AND NAME CHANGE OF SELINA ELIAM, a Minor SOIDER HENRY AND LOIS HENRY, Petitioners Pohnpei Civil Action No. 258-87 Trial Division of the Pohnpei Supreme Court March 16, 1988 Petition for the adoption of a minor child. The natural mother was a citizen of the Federated States of Micronesia and domiciled in the Municipality of Sokehs, Pohnpei, but the alleged father was a citizen of the Republic of the Philippines, temporarily resident in Pohnpei. The mother of the child claimed in her testimony that she and the father were married under local custom. The father filed a written consent and personally testified. The Trial Division of the Pohnpei Supreme Court, JUDAH C. JOHNNY, Associate Justice, granting the petition, held (1) that the alleged marriage was invalid as it did not comply with the statutory requirements relating to marriages between a citizen and a noncitizen or between two noncitizens; (2) that by statute the noncitizen father could not be a part of the local custom; and (3) that the father of the child not being the legal parent, his consent to the adoption was not required under statute, nor was he entitled to notice of the adoption. 1. Domestic Relations - Marriages - Non-citizens - Status For a marriage between a non-citizen and citizen or two citizens [of Pohnpei] to be valid the provisions of 39 TTC 51, 52 and 53 relating to the filing for and obtaining of a marriage license, and the performance or solemnization of the marriage by an ordained minister, a judge, a governor or any person authorized by law to perform marriages, shall be complied with. [3 PN.L.R. 59] 2. Custom - Noncitizens One who is not a citizen [of Pohnpei] does not by simple residence become part of the local custom, no matter how much he may profess his desire to be so. 3. Domestic Relations - Adoption - Parental Consent Where the father of a child to be adopted is not the legal parent the father's consent is not required to the adoption, nor is he entitled to notice thereof. 4. Domestic Relations - Marriage - Children Born out of Wedlock Status A child born out of wedlock is an illegitimate child with respect to its relationship to the father. 5. Domestic Relations - Adoption - Illegitimate Child - Status The father of an illegitimate child is not a legal parent within the meaning of the adoption statutes, until such relationship is legitimatized. 6. Domestic Relations - Marriage - Illegitimate Child - Legitimatization An illegitimate child may be legitimatized by the subsequent marriage of the putative father to the mother, and the acknowledgment by the father, the child to be his own. Counsel for Petitioner: Ander Norman Trial Counselor Micronesian Legal Services Corporation JUDAH C. JOHNNY, Associate [3 PN.L.R. 60] Before me on February 26, 1988, at Kolonia, Pohnpei State. Appearing were the petitioners and the natural mother, together with counsel the Micronesian Legal Services Corporation, by Ander Norman. The minor was produced in Court. The petitioners and the natural mother testified under oath. While a written consent of the father of the child was not on file, the Court found on examination of the natural mother, of a known living father. Hearings were continued until February 29, 1988, to allow appearance of the father. Hearings began and completed on February 29, 1988, with the father filing consent and personally testifying. FINDINGS OF FACT I found the following facts: 1. The petitioners, husband and wife, joined in this petition, are citizens of the Federated States of Micronesia, legal residents of Pohnpei State, domiciled in Sokehs Municipality. 2. The natural mother is a citizen of the Federated States of Micronesia, of Pohnpei State and domiciled in Sokehs Municipality. The alleged father is a citizen of the Republic of the Philippines, temporarily residing in Pohnpei State, with the natural mother in a nonmarital relation. [3 PN.L.R. 61] 3. The minor was born on October 22, 1987, in Pohnpei State. 4. The petitioners are suitable to adopt the minor. The welfare of the minor will be promoted by this adoption. CONCLUSIONS OF LAW [1 ,2] It is perhaps worthy to note that while it was claimed by the natural mother that she and the alleged father were married under local custom, the claim cannot stand. Any procedural form of marriage by a noncitizen is invalid unless it meets the requirements of 39 TTC 51, 52, and 53. These sections provide as follows: "Section 51. Two noncitizens or noncitizen and citizen; requisites of marriage contract. In order to make valid the marriage contract between two noncitizens or between a noncitizen and a citizen of the Trust Territory, it shall be necessary that: (1) The male at the time of contracting the marriage be at least eighteen years of age and the female at least sixteen years of age, and if the female is less than eighteen years of age she must have the consent of at least one of her parents or her guardian; (2) Neither of the respective parties has a lawful spouse living; and (3) A marriage ceremony be performed by a duly authorized person as provided in this chapter. [3 PN.L.R. 62] Section 52. Same; license. (1) The district administrator in each district is authorized to grant a license for marriage between two noncitizens or between a noncitizen and a citizen of the Trust Territory. Upon the filing of an application for such a license, the district administrator shall collect from the parties making the application the sum of two dollars to be remitted to the treasurer of the Trust Territory. (2) In order to obtain a license to marry, the parties shall file with the district administrator an application in writing setting forth as to each party; his or her full name, age, citizenship, residence, occupation, if any whether previously married and the manner of dissolution of such prior marriage or marriages. If the statements in the application are satisfactory and it appears that the parties are free to marry, the district administrator shall issue to the parties a license to marry. Nothing in this section shah be construed to prevent the issuance of a license to marry to two citizens of the Trust Territory." Section 53. Same; ceremony. The presence of two witnesses, at least, is requisite for the celebration of a marriage between two noncitizens or between a noncitizen in the district in which the license is issued. The marriage rite may be performed and solemnized by an ordained minister, a judge of the high court, a judge of the district court, a district administrator, or by any person authorized by law to perform marriages, upon presentation to him of a license to marry as prescribed in section 52 of this chapter. The person solemnizing a marriage may receive a fee to be stipulated by the parties, or the gratification tendered to him." Here, the marriage is claimed to be validated through the Pohnpei customary form. Under the statutes however, one who is not a citizen does not, by simple residence, become part of the local custom, no matter how much he may profess his desire to be so: The statutes are clear and unambiguous, that the legislature [3 PN.L.R. 63] imposed stricter procedural requirements in marriages involving noncitizens than in marriages involving citizens. In brief, these provisions require, inter alia, the filing for and obtaining of a marriage license, and the performance or solemnization of the marriage by an ordained minister, a judge, a governor or any person authorized by law to perform marriages. This, the natural parents did not do. What disturbs me in this instance is the imminence that it will be completely unnecessary for one who engages in this form of. marital relation, in good faith, but due to lack of knowledge and information, to seek to have such marriage, void under the statutes, to be declared valid in order for her to lay claim to whatever may remain from the estate of a deceased noncitizen partner, to whom she thought she was married under Pohnpei custom. [3-6] The question of validity of marriage is not the crux of the petitioner's relief in this matter, although it is deemed worth mentioning for any purpose that it may serve. A resulting question however, is that relating to the status of the child to the father, who is not the husband of the natural mother as held above. Con- [3 PN.L.R. 64] versely, a question may be asked, "Is the consent of Jeremias Paraiso (the alleged father) required under the adoption statutes?" I have held that he cannot be a customary husband. He is not a legal husband, too. It follows that until he fulfills the statutory requirements for marriage of noncitizens, he does not become married to the mother of the minor. While he was not married to the mother at the time of birth of the minor, can it be said that his consent is a prerequisite in this adoption. We look to the statutes for the answer to the question. The pertinent statute is 39 TTC 253, which provides in part, "No adoption shall be granted without either the written consent of, or notice to each of the known living legal parents . . ." Emphasis added. The statute is clear here that the consent of or notice to a "legal parent" is required. Consent of a legal parent is what the statute requires. The consent of any other category of parent is not required. A child born out of wedlock is an illegitimate child with respect to its relation to its father. The father of an illegitimate child is not a legal parent within the meaning of the adoption statutes, until such relationship shall have been legitimatized. Legitimation of a child may include the subsequent marriage of the putative [3 PN.L.R. 65] father to the mother and the acknowledgment by the father, the child to be his own. See In the Matter of Olson Saimon, PCA No. 155-86. In the absence of these, the consent of the father of an illegitimate child to its adoption by another is not essential, and he is not entitled to notice of adoption proceedings. Thus, even though the Court in this matter allowed the putative father to voice his consent, that consent under the determination above is not essential to this adoption, and cannot therefore affect the validity of this adoption. That allowance was made under the ignorance of the Court that the alleged father was a putative father as discussed above. It is therefore ORDERED, ADJUDGED, and DECREED: 1. The petition of Soider and Lois Henry is granted. They are hereafter jointly the adoptive parents of Selina. They shall hold toward each other the legal relation of parent and child and have all the rights and be subject to all the duties of that relationship. 2. The natural parents are hereby relieved of all parental duties toward the child, all responsibilities for it, and have no further right over it.