Respondent appeals from an order of the Surrogate's Court, New York County (Kristin Booth Glen, S.), entered October 11, 2007, which granted petitioner LMB's application for immediate visitation and for vacatur of a prior order, same court and Surrogate, granting respondent ERJ's application to re-adopt John Doe.
The opinion of the court was delivered by: Catterson, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
David B. Saxe, J.P., Luis A. Gonzalez, Eugene Nardelli, James M. Catterson, JJ.
In this action, in which appellant ERJ claims she is the current, rightful adoptive parent of a Cambodian orphan, we find that the act of state doctrine may not be used in an adoption proceeding where the parties have invoked the jurisdiction of the State of New York, and all the parties including the child are domicilaries of this state. To find otherwise would be an unprecedented surrender of this Court's jurisdiction, and would allow a foreign sovereign to dictate parental rights and the legal status of New York domicilaries even on a whim.
This case involves a bitter custody battle between ERJ and LMB, over a five-year old Cambodian orphan named John Doe. Both parties claim to have legally adopted John Doe.
ERJ is an heiress to one of the largest fortunes in America. Although she is a United States citizen who resides in New York, ERJ is a person of considerable influence in Cambodia, where she has made sizeable contributions to charitable endeavors. LMB, a man of considerably less wealth, is a citizen of both the United States and Trinidad and Tobago, and has residences in both Manhattan and Florida.
In 2003, ERJ and LMB entered into a romantic relationship and shortly thereafter, the couple began to discuss adopting a child. The record also reflects that as the relationship developed, ERJ became increasingly involved with an orphanage she had established earlier that year in Cambodia.
While ERJ was on a trip to the Cambodian orphanage, she met John Doe. According to LMB, ERJ called him from Cambodia and stated, "I found your son." Although ERJ denies that she made this statement, there is no dispute that in June 2003, LMB flew to Cambodia and met John Doe. Thereafter, the parties decided that they would try to adopt the child.
Attempting to circumvent the U.S. visa restrictions on Cambodian orphans,*fn1 the parties planned that LMB, as a citizen of Trinidad and Tobago, would legally adopt John Doe and become his sole legal parent. Then, since LMB is also a U.S. citizen, John Doe would be granted U.S. citizenship as the child of a U.S. citizen. In the meanwhile, the parties obtained temporary legal status for John Doe in the U.S. by bringing him to New York*fn2 on a medical visa in August 2003. John Doe was granted a visa for a six-month stay in the United States to receive medical care. Since the expiration of a six-month extension in August 2004, John Doe has resided in the United States without legal immigration status.
In May 2004, LMB applied to the Cambodian government to adopt John Doe pursuant to Article 10 of Sub-Decree 29. Sub-Decree 29 governs the procedures for adoption by foreign nationals of orphans under the jurisdiction of the Cambodian government. It was promulgated in response to concerns about trafficking and baby-selling. Among other things, the statute provides for a "Giving and Receiving" ceremony, during which a Cambodian official delivers the child to the adoptive parent in person. This provision in Sub-Decree 29 was designed to keep Cambodian orphans out of the hands of child traffickers.
On June 23, 2004, despite the fact that LMB did not participate in a "Giving and Receiving" ceremony, the Cambodian government issued an adoption certificate,*fn3 granting "final approval" on LMB's request to adopt John Doe. On July 2, 2004, the Chief of Commune and Registrar of Prek Eng Commune, Kien Svay District, Kandal Province, issued an amended birth certificate for John Doe listing LMB as John Doe's "Father."
The parties' plan to obtain full legal status in the U.S. for John Doe failed after Trinidad denied LMB's application to re-adopt John Doe. Shortly thereafter, their romantic relationship soured and ERJ decided that she was going to adopt John Doe herself.*fn4
At this point, the record reflects a classic case of "he-said/she-said." What is undisputed however is that, on March 14, 2005, LMB signed a letter addressed to the Cambodian government (hereinafter referred to as "the March 2005 Letter"), relinquishing the permission that Cambodia had granted him to adopt John Doe. The letter was drafted by ERJ's immigration attorney and was submitted to the Cambodian government on ERJ's behalf. It stated, in pertinent part:
"In June of 2004, I was granted permission to adopt the orphan child named [John Doe], and to bring him up in Trinidad and Tobago. This permission was communicated in Letter of Approval No. 629 D.A., sent from the Office of the Council of Ministers on June 16, 2004, and Adoption Certificate No. 396 MOSALVY, issued on June 23, 2004 ... I am very grateful to the Kingdom of Cambodia for having granted this permission. It is no longer possible, however, for me to adopt the child and to bring him up in Trinidad and Tobago, as had been contemplated when this permission was granted. Therefore, I wish to relinquish the permission that was granted to me by the Kingdom of Cambodia to adopt the orphan child named [John Doe]." After LMB signed the March 2005 Letter,*fn5 ERJ submitted it to the Cambodian authorities.
Six months later, in September 2005, ERJ wrote to the Cambodian Ministry of Social Affairs, Labor, Vocation and Youth Rehabilitation (hereinafter referred to as "the MOSAVY") and requested permission to adopt the child*fn6. In October 2005, the Cambodian government issued an adoption certificate, granting "final approval" on ERJ's request to adopt John Doe. Notably, like LMB, ERJ never participated in a "Giving and Receiving" ceremony.
In January 2006, ERJ petitioned the New York County Surrogate's Court for permission to re-adopt John Doe. Her petition, signed by counsel, included ERJ's sworn statement that she had adopted John Doe in Cambodia, a copy of her Cambodian adoption certificate dated October 11, 2005 evidencing that adoption, and a copy of John Doe's Cambodian passport. ERJ also submitted John Doe's original birth certificate which lists both father and mother as "Unknown", and not the recently issued one naming LMB as John Doe's father.
Because the Surrogate believed that this was a re-adoption, and because John Doe had already been determined an orphan, no notice to any other party was required, and none was given. On April 12, 2006, with no opposition, and no reason to doubt the bona fides of the petition, the Surrogate granted the readoption of John Doe by ERJ.
Four months later, in August 2006, LMB commenced this proceeding seeking, inter alia, vacatur of ERJ's order of adoption and immediate visitation with John Doe. LMB asserted that ERJ's "re-adoption" petition had been procured by a fraud on the court insofar as ERJ had not revealed the fact that the Cambodian authorities had listed LMB on John Doe's birth certificate as his adoptive father.
The Surrogate reopened the case. Then, after months of conflicting affidavits and memoranda of law as to, inter alia, whether Cambodia grants full and final adoptions, she concluded that a full-scale trial of those issues was necessary.
In the meantime, in December 2006, purporting to shed light on the issues before the Surrogate, ERJ submitted two documents from Cambodian governmental entities. The first document was issued by the MOSAVY (hereinafter referred to as "the MOSAVY ...