B-176212, APR 9, 1973, 52 COMP GEN 675

B-176212: Apr 9, 1973

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ARE CONSIDERED DEPENDENTS OF THE MEMBER UNDER 37 U.S.C. 401. UNLESS THE CHILDREN ARE ACTUALLY ADOPTED BY THE MEMBER AFTER HE IS TRANSFERRED FROM GREAT BRITAIN. PETTY OFFICER ABATSIS AND HIS WIFE WERE ISSUED A PROVISIONAL ADOPTION ORDER FOR CHARLES MARK ABATSIS (FORMERLY KENNETH MARK POWELL) ON OCTOBER 22. THAT A SIMILAR ORDER WAS ISSUED FOR UNA MARY ABATSIS (FORMERLY MARY RYAN) ON JUNE 16. SUBSEQUENTLY THE CHILDREN WERE REGISTERED IN THE ADOPTED CHILDREN REGISTER AT THE GENERAL REGISTER OFFICE. HAVE BEEN ISSUED BY THE REGISTER OFFICE. THE APPLICATION WAS DISAPPROVED BY THE NAVY FAMILY ALLOWANCE ACTIVITY. FOR THE REASON THAT THE CHILDREN WERE NOT ADOPTED BY VIRTUE OF THE PROVISIONAL ADOPTION ORDERS.

B-176212, APR 9, 1973, 52 COMP GEN 675

MILITARY PERSONNEL - DEPENDENTS - PROOF OF DEPENDENCY FOR BENEFITS - CHILDREN CHILDREN PROVISIONALLY ADOPTED BY A NAVY MEMBER WHILE STATIONED IN GREAT BRITAIN PURSUANT TO THE ADOPTION ACT OF 1958(7 ELIZ. 2, C.5) PART V, SECTION 53, ARE CONSIDERED DEPENDENTS OF THE MEMBER UNDER 37 U.S.C. 401, SO AS TO ENTITLE HIM TO A DEPENDENTS' ALLOWANCE AND ALL OTHER BENEFITS INCIDENT TO THE DEPENDENCY STATUS WHILE THE MEMBER RESIDES IN GREAT BRITAIN IN VIEW OF THE FACT THAT ALTHOUGH THE PROVISIONAL ADOPTION ORDER ONLY AUTHORIZES CUSTODY AND REMOVAL OF THE CHILDREN FROM GREAT BRITAIN FOR ADOPTION ELSEWHERE, SECTION 53(4) OF THE ACT PROVIDES THAT THE RIGHTS, DUTIES, OBLIGATIONS, AND LIABILITIES PRESCRIBED IN OTHER SECTIONS OF THE ACT FOR AN ADOPTER SHALL EQUAL THOSE OF NATURAL PARENTS OR THOSE CREATED BY AN ADOPTION ORDER. HOWEVER, UNLESS THE CHILDREN ARE ACTUALLY ADOPTED BY THE MEMBER AFTER HE IS TRANSFERRED FROM GREAT BRITAIN, THEY MAY NOT CONTINUE TO BE REGARDED AS HIS ADOPTED CHILDREN.

TO THE SECRETARY OF THE NAVY, APRIL 9, 1973:

WE REFER FURTHER TO LETTER DATED JUNE 6, 1972, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY OF THE NAVY (MANPOWER AND RESERVE AFFAIRS), DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE SUBMISSION NO. SS-N-1158, REQUESTING AN ADVANCE DECISION REGARDING THE ENTITLEMENT OF AFMC GEORGE C. ABATSIS, U.S. NAVY, SN 201 89 24, TO DEPENDENTS' ALLOWANCE FOR HIS PROVISIONALLY ADOPTED CHILDREN.

THE RECORD SHOWS THAT IN THE BURY ST. EDMUNDS COUNTY COURT, ENGLAND, PETTY OFFICER ABATSIS AND HIS WIFE WERE ISSUED A PROVISIONAL ADOPTION ORDER FOR CHARLES MARK ABATSIS (FORMERLY KENNETH MARK POWELL) ON OCTOBER 22, 1968, AND THAT A SIMILAR ORDER WAS ISSUED FOR UNA MARY ABATSIS (FORMERLY MARY RYAN) ON JUNE 16, 1970. SUBSEQUENTLY THE CHILDREN WERE REGISTERED IN THE ADOPTED CHILDREN REGISTER AT THE GENERAL REGISTER OFFICE, LONDON, ENGLAND, UNDER THE SURNAME OF ABATSIS. CERTIFICATES OF BIRTH FOR CHARLES MARK ABATSIS, BORN AUGUST 28, 1967, AND FOR UNA MARY ABATSIS, BORN SEPTEMBER 27, 1969, HAVE BEEN ISSUED BY THE REGISTER OFFICE.

ON JULY 15, 1970, THE MEMBER FILED AN APPLICATION FOR DEPENDENTS' ALLOWANCES FOR BOTH CHILDREN, SUPPORTED BY COPIES OF THE PROVISIONAL ADOPTION ORDERS AND CERTIFICATES OF BIRTH. THE APPLICATION WAS DISAPPROVED BY THE NAVY FAMILY ALLOWANCE ACTIVITY, CLEVELAND, OHIO 44199, ON AUGUST 14, 1970, FOR THE REASON THAT THE CHILDREN WERE NOT ADOPTED BY VIRTUE OF THE PROVISIONAL ADOPTION ORDERS. ON SEPTEMBER 21, 1970, THE ACTIVITY REAFFIRMED THE PRIOR DETERMINATION.

OUR DECISION IS REQUESTED AS TO WHETHER A BRITISH PROVISIONAL ADOPTION ORDER MAY QUALIFY THE SUBJECT OF SUCH ORDER AS A DEPENDENT WITH RESPECT TO PAYMENT OF TRAVEL ALLOWANCES AND TO ALL OTHER BENEFITS INCIDENT TO THE STATUS OF A DEPENDENT ADOPTED CHILD. IT IS STATED THAT IT CONCEDED THAT CHARLES AND UNA ABATSIS ARE IN FACT DEPENDENT UPON PETTY OFFICER ABATSIS FOR SUPPORT.

THE PROVISIONAL ADOPTION ORDERS IN QUESTION READ IN PERTINENT PART AS FOLLOWS:

IT IS ORDERED THAT THE APPLICANTS) BE AUTHORISED TO REMOVE THE INFANT FROM GREAT BRITAIN FOR THE PURPOSE OF ADOPTING HIM/HER UNDER THE LAW OF OR WITHIN THE COUNTRY IN WHICH THE APPLICANTS ARE DOMICILED AND THAT THE APPLICANTS) DO HAVE THE CUSTODY OF THE INFANT PENDING HIS/HER ADOPTION AS AFORESAID.

EACH ORDER ALSO PROVIDES FOR AN ENTRY TO BE MADE IN THE ADOPTED CHILDREN REGISTER.

THE ADOPTION ACT OF 1958(7 ELIZ. 2, C.5), PART V, SECTION 53 STATES AS FOLLOWS:

PROVISIONAL ADOPTION BY PERSONS DOMICILED OUTSIDE GREAT BRITAIN. (1) IF THE COURT IS SATISFIED, UPON AN APPLICATION BEING MADE BY A PERSON WHO IS NOT DOMICILED IN ENGLAND OR SCOTLAND, THAT THE APPLICANT INTENDS TO ADOPT AN INFANT UNDER THE LAW OF OR WITHIN THE COUNTRY IN WHICH HE IS DOMICILED, AND FOR THAT PURPOSE DESIRES TO REMOVE THE INFANT FROM GREAT BRITAIN EITHER IMMEDIATELY OR AFTER AN INTERVAL, THE COURT MAY, SUBJECT TO THE PROVISIONS OF THIS SECTION, MAKE AN ORDER (IN THIS SECTION REFERRED TO AS A PROVISIONAL ADOPTION ORDER) AUTHORISING THE APPLICANT TO REMOVE THE INFANT FOR THE PURPOSE AFORESAID, AND GIVING TO THE APPLICANT THE CUSTODY OF THE INFANT PENDING HIS ADOPTION AS AFORESAID.

(2) AN APPLICATION FOR A PROVISIONAL ADOPTION ORDER MAY BE MADE, IN ENGLAND TO THE HIGH COURT OR THE COUNTY COURT, AND IN SCOTLAND TO THE COURT OF SESSION OR THE SHERIFF COURT.

(3) A PROVISIONAL ADOPTION ORDER MAY BE MADE IN ANY CASE WHERE, APART FROM THE DOMICILE OF THE APPLICANT, AN ADOPTION ORDER COULD BE MADE IN RESPECT OF THE INFANT UNDER PART I OF THIS ACT, BUT SHALL NOT BE MADE IN ANY OTHER CASE.

(4) SUBJECT TO THE PROVISIONS OF THIS SECTION, THE PROVISIONS OF THIS ACT, OTHER THAN THIS SECTION AND SECTIONS SIXTEEN, SEVENTEEN AND NINETEEN, SHALL APPLY IN RELATION TO A PROVISIONAL ADOPTION ORDER AS THEY APPLY IN RELATION TO AN ADOPTION ORDER, AND REFERENCES IN THOSE PROVISIONS TO ADOPTION, TO AN ADOPTION ORDER, TO AN APPLICATION OR APPLICANT FOR SUCH AN ORDER AND TO AN ADOPTER OR A PERSON ADOPTED OR AUTHORISED TO BE ADOPTED UNDER SUCH AN ORDER SHALL BE CONSTRUED ACCORDINGLY.

IT IS STATED IN THE LETTER OF THE ASSISTANT SECRETARY OF THE NAVY THAT SECTIONS 16 AND 17 VEST THE ADOPTED PERSON WITH CERTAIN RIGHTS OF INHERITANCE FROM THE ADOPTING PARENTS AND DIVEST HIM OF CERTAIN RIGHTS OF INHERITANCE FROM HIS NATURAL PARENTS. SECTION 19 ESTABLISHES THE ADOPTED PERSON AS A CITIZEN OF THE UNITED KINGDOM WHEN THE ADOPTER HOLDS SUCH CITIZENSHIP. PURSUANT TO SECTION 53(4), SUPRA, OTHER PROVISIONS OF THE ACT APPLY TO A PROVISIONAL ADOPTION ORDER IN THE SAME MANNER AS THEY APPLY TO AN ADOPTION ORDER. CONSEQUENTLY, IT IS SAID, SECTIONS 13(1), (2), AND (3) OF THE ACT DEFINE THE RIGHTS, DUTIES, OBLIGATIONS, AND LIABILITIES OF THE ADOPTING AND NATURAL PARENTS IN RESPECT TO THE PROVISIONALLY ADOPTED CHILDREN.

THOSE SECTIONS STATE:

(1) UPON AN ADOPTION ORDER BEING MADE, ALL RIGHTS, DUTIES, OBLIGATIONS AND LIABILITIES OF THE PARENTS OR GUARDIANS OF THE INFANT IN RELATION TO THE FUTURE CUSTODY, MAINTENANCE AND EDUCATION OF THE INFANT, INCLUDING ALL RIGHTS TO APPOINT A GUARDIAN AND (IN ENGLAND) TO CONSENT OR GIVE NOTICE OF DISSENT TO MARRIAGE, SHALL BE EXTINGUISHED, AND ALL SUCH RIGHTS, DUTIES, OBLIGATIONS AND LIABILITIES SHALL VEST IN AND BE EXERCISABLE BY AND ENFORCEABLE AGAINST THE ADOPTER AS IF THE INFANT WERE A CHILD BORN TO THE ADOPTER IN LAWFUL WEDLOCK; AND IN RESPECT OF THE MATTERS AFORESAID (AND, IN SCOTLAND, IN RESPECT OF THE LIABILITY OF A CHILD TO MAINTAIN HIS PARENTS) THE INFANT SHALL STAND TO THE ADOPTER EXCLUSIVELY IN THE POSITION OF A CHILD BORN TO THE ADOPTER IN LAWFUL WEDLOCK.

(2) IN ANY CASE WHERE TWO SPOUSES ARE THE ADOPTERS, THE SPOUSES SHALL IN RESPECT OF THE MATTERS AFORESAID, AND FOR THE PURPOSE OF THE JURISDICTION OF ANY COURT TO MAKE ORDERS AS TO THE CUSTODY AND MAINTENANCE OF AND RIGHT OF ACCESS TO CHILDREN, STAND TO EACH OTHER AND TO THE INFANT IN THE SAME RELATIONS AS THEY WOULD HAVE STOOD IF THEY HAD BEEN THE LAWFUL FATHER AND MOTHER OF THE INFANT AND THE INFANT SHALL STAND TO THEM IN THE SAME RELATION AS TO A LAWFUL FATHER AND MOTHER.

(3) FOR THE PURPOSE OF THE LAW RELATING TO MARRIAGE, AN ADOPTER AND THE PERSON WHOM HE HAS BEEN AUTHORISED TO ADOPT UNDER AN ADOPTION ORDER SHALL BE DEEMED TO BE WITHIN THE PROHIBITED DEGREES OF CONSANGUINITY; AND THE PROVISIONS OF THIS SUBSECTION SHALL CONTINUE TO HAVE EFFECT NOTWITHSTANDING THAT SOME PERSON OTHER THAN THE ADOPTER IS AUTHORISED BY A SUBSEQUENT ORDER TO ADOPT THE SAME INFANT.

SECTION 401, TITLE 37, U.S. CODE, PROVIDES THAT "DEPENDENT" WITH RESPECT TO A MEMBER OF A UNIFORMED SERVICE, INCLUDES HIS UNMARRIED LEGITIMATE CHILD, INCLUDING A STEPCHILD, OR AN ADOPTED CHILD, WHO IS IN FACT DEPENDENT ON THE MEMBER.

IN 30 COMP. GEN. 210(1950), WE HELD THAT IN ORDER FOR AN OFFICER TO BE ENTITLED TO INCREASE ALLOWANCES AUTHORIZED TO BE PAID TO HIM ON ACCOUNT OF "ADOPTED CHILDREN" THERE MUST BE SHOWN TO BE A LEGAL ADOPTION, THAT IS, ONE ACCOMPLISHED ACCORDING TO STATUTE.

IN THIS CONNECTION WE REFERRED TO REPORT NO. 1359 OF THE COMMITTEE ON MILITARY AFFAIRS, UNITED STATES SENATE, 70TH CONGRESS, SECOND SESSION, ON H.R. 12449, WHICH LATER BECAME THE ACT OF FEBRUARY 21, 1929, PUBLIC LAW 791, 45 STAT. 1254, WHICH FIRST ADDED THE WORDS "ADOPTED CHILDREN" TO THE DEFINITION OF THE TERM "CHILDREN" FOR THE PURPOSE OF PAYMENT OF INCREASED ALLOWANCES. AT PAGE 2 OF THE REPORT IT WAS SAID THAT:

IT IS EVIDENT THAT IT WAS THE INTENT OF CONGRESS TO INCLUDE SUCH (LEGALLY ADOPTED MINOR) CHILDREN IN THE ACTS REFERRED TO, AS SUCH ADOPTED CHILDREN ARE, TO ALL INTENTS AND PURPOSES, LEGITIMATE CHILDREN OF THE ADOPTING PARENT AND CONSTITUTE OBLIGATIONS TO SUCH PARENT EQUAL IN RESPECT TO NATURAL CHILDREN.

IN 44 COMP. GEN. 417(1965), WE HELD THAT BASIC ALLOWANCE FOR QUARTERS AS A MEMBER WITH DEPENDENTS WAS AUTHORIZED ON ACCOUNT OF AN ADOPTED CHILD EFFECTIVE UPON THE ISSUANCE OF AN INTERLOCUTORY ORDER OF ADOPTION. THE PERTINENT STATUTE PROVIDED THAT SUBJECT TO A PROBATIONARY PERIOD AND THE PROVISIONS OF THE FINAL ORDER OF ADOPTION, THE ADOPTED CHILD WOULD BE FOR ALL INTENTS AND PURPOSES THE CHILD OF THE ADOPTING PARENT FROM THE DATE OF ENTRY OF THE INTERLOCUTORY ORDER.

THE EFFECT OF AN ADOPTION DECREE IS TO TRANSFER TO THE ADOPTIVE PARENT THE RIGHT TO THE EXCLUSIVE CUSTODY OF THE CHILD, THE RIGHT TO CONTROL ITS EDUCATION, THE DUTY OF OBEDIENCE OWED BY THE CHILD, AND ALL OTHER LEGAL CONSEQUENCES AND INCIDENTS OF THE NATURAL RELATION, SUBJECT, HOWEVER, TO SUCH LIMITATIONS AND RESTRICTIONS AS MAY BE BY STATUTE IMPOSED. WHILE PROCEEDINGS FOR CUSTODY OF A CHILD ARE USUALLY FOR CUSTODY DURING MINORITY AND SUBJECT TO MODIFICATION FROM TIME TO TIME, A DECREE OF ADOPTION TERMINATES THE RELATIONSHIP BETWEEN THE NATURAL PARENTS AND THE CHILD AND IS PERMANENT AND CONTINUES FOR LIFE. THE NEWLY AFFILIATED CONNECTION BETWEEN THE CHILD AND THE ADOPTING PARENT IS EXPECTED TO ENDURE AS A RESULT OF THE ADOPTION PROCEEDINGS, AS INDICATED BY THE FACT THAT THE SURNAME OF THE CHILD IS USUALLY CHANGED TO THAT OF THE ADOPTIVE PARENT. AM JUR 2D ADOPTION SEC. 84.

THE CASES CITED IN THE ASSISTANT SECRETARY'S LETTER, RE R. (AN INFANT)(1962) 3 ALL E.R. 238, RE M. (AN INFANT)(1964) 2 ALL E.R. 1017, AND RE G. (AN INFANT)(1962) 2 ALL E.R. 173, APPEAR TO SUPPORT THE VIEW THAT A PROVISIONAL ADOPTION ORDER IS NO MORE THAN A CUSTODY ORDER. HOWEVER, IN NONE OF THESE CASES WAS THE QUESTION OF THE RELATIONSHIP RESULTING FROM THE ORDER AT ISSUE, NOR WAS THERE CONSIDERATION OF THE EFFECT OF PART V, SECTION 53(4) OF THE ADOPTION ACT OF 1958, IN REGARD THERETO.

WHILE BY ITS TERMS A PROVISIONAL ADOPTION ORDER ONLY AUTHORIZES CUSTODY AND THE REMOVAL OF A CHILD FROM GREAT BRITAIN FOR THE PURPOSE OF ADOPTION ELSEWHERE, PART V, SECTION 53(4) OF THE ADOPTION ACT OF 1958, WITH THE EXCEPTION OF PROVISIONS RELATING TO INHERITANCE AND CITIZENSHIP, PROVIDES THAT THE PROVISIONS OF THE ACT SHALL APPLY IN RELATION TO A PROVISIONAL ADOPTION ORDER AS THEY APPLY IN RELATION TO AN ADOPTION ORDER. THEREFORE, THE RIGHTS, DUTIES, OBLIGATIONS AND LIABILITIES SPECIFIED IN SECTIONS 13(1), (2), AND (3) OF THE ACT, SUPRA, WHICH VEST IN AND ARE EXERCISABLE BY AND ENFORCEABLE AGAINST THE ADOPTER AS IF THE INFANT WERE A CHILD BORN TO THE ADOPTER IN LAWFUL WEDLOCK, APPLY TO A PROVISIONAL ADOPTION ORDER WHILE THE PARTIES CONCERNED RESIDE IN GREAT BRITAIN.

IN VIEW OF THE FOREGOING, AS AN OTHERWISE QUALIFIED PERSON NOT DOMICILED IN GREAT BRITAIN IS NOT ELIGIBLE FOR AN ADOPTION ORDER, IT APPEARS TO US THAT A PROVISIONAL ADOPTION ORDER IS OF A DUAL NATURE. BY ITS TERMS IT GRANTS AUTHORITY TO THE RECIPIENT TO LAWFULLY OBTAIN THE CUSTODY OF A MINOR AND TO REMOVE HIM FROM GREAT BRITAIN FOR THE PURPOSE OF ADOPTION UNDER THE LAW OF, OR WITHIN THE COUNTRY OF THE APPLICANT'S DOMICILE. APPARENTLY, ENTRY IN THE ADOPTED CHILDREN REGISTER AND THE ISSUANCE OF A NEW BIRTH CERTIFICATE SERVES BOTH TO INDICATE THE EXPECTED PERMANENCY OF THE RELATIONSHIP AS WELL AS TO FACILITATE ADOPTION ELSEWHERE.

WHILE THE CHILD AND THE PERSON WHO IS GRANTED A PROVISIONAL ADOPTION ORDER CONTINUE TO RESIDE IN GREAT BRITAIN, THE ABOVE STATUTORY PROVISIONS SEEM TO ESTABLISH SUBSTANTIALLY THE SAME LEGAL RELATIONSHIP (EXCEPT FOR PURPOSES OF INHERITANCE AND CITIZENSHIP) AS WOULD BE CREATED BY AN ADOPTION ORDER.

THEREFORE, WHILE THE MATTER IS NOT FREE FROM DOUBT, IT IS CONCLUDED THAT THE CHILDREN IN QUESTION MAY BE REGARDED AS THE MEMBER'S ADOPTED CHILDREN WITHIN THE CONTEMPLATION OF 37 U.S.C. 401 WHILE THE MEMBER CONTINUES TO RESIDE IN GREAT BRITAIN.

IT IS CLEAR, HOWEVER, IN VIEW OF THE PROVISIONAL NATURE OF THE ORDERS IN QUESTION, THAT AFTER THE MEMBER IS TRANSFERRED TO A PERMANENT STATION OUTSIDE OF GREAT BRITAIN, THERE WOULD BE NO BASIS TO CONTINUE TO REGARD THESE CHILDREN AS THE MEMBER'S ADOPTED CHILDREN UNLESS THEY ARE ACTUALLY ADOPTED.

THEREFORE, IF OTHERWISE QUALIFIED, GEORGE C. ABATSIS, AFCM, U.S. NAVY, IS ENTITLED TO DEPENDENTS' ALLOWANCES FOR CHARLES MARK ABATSIS, AND UNA MARY ABATSIS, WHO MAY BE CONSIDERED TO BE HIS ADOPTED CHILDREN WHILE RESIDENT IN GREAT BRITAIN.

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