VP 8-I-16596
Decided by Board December 11, 1956
Nonquota status — Section 101 (a) (27) (A) and section 101 (b) (1) (C), Immigration and Nationality Act — Legitimation of children, Ohio.
Where the petitioner, a United States citizen and a resident of Ohio, obtained a decree of legitimation from the Lake County Probate Court in behalf of his 3 children born out of wedlock in Jamaica, B.W.I., the children are regarded as legitimated within the meaning of section 101 (b) (1) (C) of the act and eligible for nonquota status under section 101 (a) (27) (A) of the act. While under Jamaican law legal custody of illegitimate children is with the mother, it must be assumed that the provisions of the Ohio statute were met and that the mother consented to the application for legitimation, thereby agreeing that custody of the children would be transferred to the petitioner, their natural father.
BEFORE THE BOARD
Discussion: The matter comes forward on appeal from the order of the District Director, Cleveland, Ohio, dated August 20, 1956, revoking the petitions on behalf of the beneficiaries previously approved on June 10, 1955, for the reason that the beneficiaries are not children as defined in section 101 (b) (1) (C) of the Immigration and Nationality Act.
The petitioner, a native of Jamaica, British West Indies, and a naturalized citizen of the United States, seeks nonquota status on behalf of his 3 daughters, born October 13, 1941, April 15, 1939, and February 28, 1937, at Jamaica, B.W.I. Section 101 (a) (27) (A) of the Immigration and Nationality Act grants nonquota status to children of citizens of the United States. The term "child" is defined in section 101 (b) (1) (C) to include a child legitimated under the law of the child's residence or domicile, or under the law of the father's residence or domicile, whether in or outside the United States, if such legitimation takes place before the child reaches the age of 18 years and the child is in the legal custody of the legitimating parent or parents at the time of such legitimation.
It is conceded that the beneficiaries were born out of wedlock and that their natural father never married their mother. In fact, the father married another woman on March 22, 1944. The beneficiaries have been legitimated in accordance with a decree of the Probate Court of Lake County, Ohio, entered February 17, 1955, granting the application by the petitioner, the natural father, to have the beneficiaries legitimated pursuant to section 2105.18 of the Revised Code of Ohio. A consular report from the American Consulate General at Kingston, Jamaica, B.W.I., dated December 21, 1955, raises doubt that the beneficiaries are eligible for classification as legitimated children under section 101 (b) (1) (C) of the act in view of advice from the Attorney General's office in Jamaica to the effect that legal custody of illegitimate Jamaican children is invariably with the mother. Additional information contained in the consular report dated September 22, 1955, contains advice from a local Jamaican attorney supporting the statement made by the Attorney General's office and further stating that there is no statutory law in Jamaica concerning the custody of illegitimate children; that common law gives custody of an illegitimate child to the mother, but a Jamaican court may award custody of an illegitimate child to the father or to anyone else if it is to the child's benefit; that in the absence of a specific order from a Jamaican court, the child is considered as a part of the mother's family and not the father's.
In support of the visa petitions there has been submitted a brief, together with affidavits by the mother and by the financial manager of the petitioner in Jamaica to the effect that petitioner has been the sole source and care and support of the beneficiaries and has paid for all clothing, food, education, medical bills and other necessaries. For most of the children's lifetime, they were reared by the petitioner's mother until her death in January 1955, at which time the children's natural mother consented to stay until some suitable person could be found or the children brought to this country. In return for her duties, the mother is reimbursed by the petitioner and intends to resume the care of her aged mother when the necessary arrangements have been made to take care of the children.
The decree of the Probate Court of Lake County, State of Ohio, entered February 17, 1955, was in pursuance of the provisions of section 2105.18 of the Revised Code of Ohio which provides as follows:
2105.18 Illegitimate children deemed legitimate. * * * The natural father of a child by a woman unmarried at the time of the birth of such child, may file an application in the probate court of the county wherein he resides or in the county in which such child resides, acknowledging that such child is his, and upon consent of the mother, or if she be deceased or incompetent, or has surrendered custody, upon the consent of the person/or agency having custody of such child, or of a court having jurisdiction over the custody thereof, the probate court, if satisfied that the applicant is the natural father and that establishment of such relationship is for the best interest of such child, shall enter the finding of such fact upon its journal and thereafter such child shall be the child of the applicant as though born to him in lawful wedlock.
In the absence of any showing to the contrary, it must be assumed that the provisions of this statute were observed and that the mother consented to the application for legitimation. By such consent it would appear the mother agreed that the custody of the child should be transferred to the natural father.
Natural parents may, by agreement or conduct, deprive themselves of their natural right to care and custody of their minor children and confer it upon others, Garcia v. Cardarelli, 7 O.L.A. 262; an adult parent's right to the custody of a child over two years of age, may be relinquished by contract, forfeited by abandonment, or lost by being in a condition of total inability to afford it necessary care and support, In re Swentesky, 10 O.O. 150; a person claiming to be the father of an illegitimate child, the mother of which has abandoned and surrendered its control, is entitled to its custody without first having been adjudged the reputed father of the child, French v. Catholic Community League, 69 O. App. 442, 44 N.E. (2d) 113.
Section 101 (b) (1) (C) permits legitimation of a child either under the law of the child's residence or domicile, or under the law of the father's residence or domicile. In the instant case there has been legitimation under the law of the father's residence or domicile. In connection with such legitimation there was given, prior to the decree of the appropriate court, the consent of the mother to such legitimation and it would appear that such consent of the mother carried with it a transfer of the custody of the children so that at the time of legitimation the children were in the custody of the legitimating parent, thus satisfying the requirement of the statute. Accordingly, the visa petitions will be granted.
Order: It is ordered that the visa petitions be approved for a nonquota status on behalf of the beneficiaries.