In re Marquez (An infant) [1992] FMSC 25; 5 FSM Intrm. 381 (Pon. 1992) (17 November 1992)

[1992] FMSC 25; 5 FSM Intrm 381 (Pon 1992)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION

FSM CIVIL ACTION 1992-052

IN THE MATTER OF THE ADOPTION OF SUSAN MARQUEZ
An infant

KERESIO BILLY AND SUSAN DEFANG BILLY
Petitioners

V

SEBASTIAN DEFANG AND ALBERTINA MARQUEZ
Respondents

OPINION: November 17, 1992

BEFORE: Andon L. Amaraich, Associate Justice

APPEARANCES: For the Petitioners: Maketo Robert, Attorney at Law; For the Respondents: pro se

HEADNOTES

Civil Procedure - Filings
Telecommunication facsimile are an unacceptable means of filing with the FSM Supreme Court. In re Marquez, [1992] FMSC 25; 5 FSM Intrm. 381, 383 n.1 (Pon. 1992).

Custom and Tradition; Domestic Relations - Adoption
6 F.S.M.C. 1614 exempts adoptions effected in accordance with local custom from the domestic relations law of the Federated States of Micronesia. Customary adoptions are an alternative to court-ordered adoptions which are established by the code. In re Marquez[1992] FMSC 25; , 5 FSM Intrm. 381, 383 (Pon. 1992).

Custom and Tradition; Domestic Relations - Adoption
Parties who wish to adopt a child have a choice of method of adoption: They may adopt according to local custom, or they may adopt according to the laws of the Federated States of Micronesia. What a petitioner may not do is seek the court's involvement in a customary adoption. In re Marquez[1992] FMSC 25; , 5 FSM Intrm. 381, 383 (Pon. 1992).

Domestic Relations - Adoption
6 F.S.M.C. 1615 grants the court jurisdiction to confirm customary adoptions. For the court to hear a petition to confirm a customary adoption, there must first be a challenge to the validity of that adoption. Furthermore, the challenge must either cause "serious embarrassment" to one of the parties, or affect their property rights. Mere speculation or gossip will not suffice. In re Marquez[1992] FMSC 25; , 5 FSM Intrm. 381, 383-84 (Pon. 1992).

Domestic Relations - Adoption
Before the court may confirm a customary adoption, there must have occurred a customary adoption. Thus, a threshold question is whether the customary adoption taken place. In re Marquez[1992] FMSC 25; , 5 FSM Intrm. 381, 384 (Pon. 1992).

Domestic Relations - Adoption; Evidence
Evidence that a customary adoption has taken place may be offered via affidavits from the natural parents of the child, consenting and attesting to the customary adoption. In re Marquez[1992] FMSC 25; , 5 FSM Intrm. 381, 384 (Pon. 1992).

Custom and Tradition; Domestic Relations - Adoption
A petition to confirm a customary adoption which fails to indicate that the customary adoption has occurred is premature and unreviewable. In re Marquez[1992] FMSC 25; , 5 FSM Intrm. 381, 385 (Pon. 1992).

COURT'S OPINION

ANDON L. AMARAICH, Associate Justice:

This is a petition to confirm a customary adoption. The petitioners are Susan and Keresio Billy. The respondents are Sebastian Defang, brother of Susan Billy, and Albertina Marquez. Mr. Defang and Ms. Marquez are the natural, unwed parents of Susan Marquez, the infant. Respondent Albertina Marquez has consented in writing to the customary adoption. Respondent Sebastian Defang has not.

I. THE HEARING

The Court scheduled a hearing for September 17, 1992, at 10:00 a.m., to consider the petition for adoption. Neither the parties nor counsel for petitioners, Mr. Maketo Robert, appeared. A few minutes before the hearing, the Court received a telefax from Mr. Robert requesting a continuance on the grounds that petitioners would not be available and that Mr. Robert had a scheduling conflict.^[1] No further communications have been received.

Despite the dilatory conduct of the parties in this case, the Court has chosen to address the petition before it, due to the issues concerning adoption which are presented. The Court hereby dismisses the petition for reasons set forth below.

II. THE PETITION

The petition was apparently made pursuant to 6 F.S.M.C. 1612. However, the relevant law appears in sections 1614 and 1615. It is those sections which govern the petition and which the Court will apply.

A. SECTION 1614

Section 1614 exempts adoptions effected in accordance with local custom from the domestic relations law of the Federated States. It states that "[n]othing contained in this chapter...shall apply to any...adoption effected in accordance with local custom, nor shall any restrictions or limitations be imposed...." 6 F.S.M.C. 1614. The clear implication of section 1614 then is that customary adoptions are an alternative to court-ordered adoptions which are established by the code. Parties who wish to adopt a child have a choice of method of adoption: They may adopt according to local custom, or they may adopt according to the laws of the Federated States of Micronesia. What a petitioner may not do, under section 1614, is seek the Court's involvement in a customary adoption.

Section 1614 does expressly provide one exception to the rule of the Court's non-involvement in customary adoptions. That exception is section 1615 of the Code. For customary adoptions pursuant to 1615 only, section 1614 does allow the Court to rule on customary adoption.

B. SECTION 1615

Section 1615 grants the court jurisdiction to hear petitions to confirm customary adoptions "[w]hen...the validity thereof is questioned or disputed by anyone in such a manner to cause serious embarrassment to or affect the property rights of any of the parties or their children...." 6 F.S.M.C. 1615. The prerequisites for jurisdictions are therefore clear. In order for the court to hear a petition to confirm a customary adoption, there must first be a challenge to the validity of that adoption. Furthermore, the challenge must either cause "serious embarrassment" to one of the parties, or their children, or affect their property rights. Mere speculation or gossip will not suffice. If the conditions in section 1615 are present, then the Court may entertain a petition such as the one before it.

C. CUSTOMARY ADOPTION

Before the Court may confirm a customary adoption, there must have occurred a customary adoption. Therefore, a threshold question must be answered affirmatively before the court may entertain a petition for confirmation: Has the customary adoption taken place?

In order for the Court to adduce that the customary adoption has taken place, the petition must offer sufficient evidence thereof. Evidence that the customary adoption has taken place may be offered via affidavits from the natural parents of the child, consenting and attesting to the customary adoption. Other forms of evidence may also provide sufficient proof that the customary adoption has occurred. Once the Court is satisfied that the customary adoption has occurred, it may consider the petition to confirm.

III. APPLICATION

It remains to be determined whether or not the petition before the Court satisfies the prerequisites established above, which would permit confirmation of the customary adoption of Susan Marquez. The Court finds that the petition does not satisfy those prerequisites. Specifically, the Court finds that the petition fails to establish that a customary adoption has taken place.

The petition states that "Susan Defang Billy and Keresio Billy desires to adopt Susan Marquez under custom,...and both respondents Sebastian Defang and Albertina Marquez agreed to and gave their consent to such adoption." Sworn Petition for Confirmation of Customary Adoption of Infant, at 2, item 6 (May 18, 1992). However, only Albertina Marquez's affidavit consenting to the adoption was submitted. There is no evidence that Sebastian Defang has consented to the adoption. Furthermore, the petition fails to indicate that the customary adoption has occurred. Rather, it appears that the petition seeks confirmation of the customary adoption, without first having it. Hence, the petition is premature and unreviewable.

A question may be raised as to whether or not the consent of only one parent suffices for a customary adoption. 6 F.S.M.C. 1633 may allow for the grant of adoption upon the written consent of only one parent.² However, 6 F.S.M.C. 1633 only applies to adoptions effected under the law; it does not apply to customary adoptions. Therefore, the Court need not interpret that statute, since it does not apply to the instant petition.

The petition fails to satisfy the threshold issue of whether a customary adoption has occurred. The Court need not decide whether or not the requirements of section 1615 are met.

The petition for confirmation of the adoption of Susan Marquez is dismissed as unripe for adjudication.

ENDNOTES:

¹Telecommunication facsimile are unacceptable means of filing with this Court. FSM Civ. R. 5(e) states in pertinent part: "In absence of an order of a justice of this court, given for special cause, the office of the clerk of court shall not accept for filing any document transmitted to the clerk of court through a telecommunication facsimile."
²"No adoption shall be granted without either the written consent of, or notice to, each of the known living legal parents who has not been adjudged insane or incompetent or has not abandoned the child for a period of six months, not shall any adoption of a child over the age of twelve years be granted without the consent of the child." 6 F.S.M.C. 1633.

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^[1]Telecommunication facsimile are unacceptable means of filing with this Court. FSM Civ. R. 5(e) states in pertinent part: "In absence of an order of a justice of this court, given for special cause, the office of the clerk of court shall not accept for filing any document transmitted to the clerk of court through a telecommunication facsimile."