FAMILY LAW

Marriage contracted with the sole purpose of changing the immigration status of one of the parties was nevertheless a valid marriage, regardless of whether there was subsequent cohabitation or sexual relations. Pritchard v. Purcell, 11 A.S.R.2d 16.

Marriage conducted with the purpose of deceiving immigration officials may change the parties' marital status even if it does not change their immigration status. Pritchard v. Purcell, 11 A.S.R.2d 16.

Even if petitioner could prove her marriage void under applicable foreign law, action for annulment would be subject to equitable defenses and limitations applicable to annulment actions in the forum. Pritchard v. Purcell, 11 A.S.R.2d 16.

Where one party to a marriage was the victim of fraud or duress, or was without capacity to marry, subsequent voluntary cohabitation or sexual relations is evidence of ratification. Pritchard v. Purcell, 11 A.S.R.2d 16.

Refusal by one party to engage in sexual relations or to live with the other party might be evidence of a secret pre-marital intention which, if unknown to the other party, might be a fraudulent inducement to marry. Pritchard v. Purcell, 11 A.S.R.2d 16.

A marriage contracted between two people who mutually agree not to cohabit or to engage in sexual relations, or even in the mutual knowledge that one party is unable to engage in such relations, is not on that account invalid. Pritchard v. Purcell, 11 A.S.R.2d 16.

Testimony of parties who have shown a willingness to perjure themselves by entering into "immigration marriage," with respect to unverifiable event such as whether subsequent sexual relations occurred, is not "clear, convincing, and satisfactory" evidence. Pritchard v. Purcell, 11 A.S.R.2d 16.

Provided that parties to a marriage ceremony understood the ceremony, and that neither was a victim of force or fraud, their vows and affidavits should be given the legal significance they knew society meant them to have. Pritchard v. Purcell, 11 A.S.R.2d 16.

One who attacks the validity of a marriage assumes the task of overcoming one of the strongest presumptions of the law. Watson v. Watson, 11 A.S.R.2d 30.

The law presumes, absent evidence to the contrary, that an earlier marriage was dissolved by death or divorce before a later one was contracted. Watson v. Watson, 11 A.S.R.2d 30.

Presumption that the first of two marriages was ended by death or divorce is rebuttable by testimony of both parties to the first marriage, or by a showing that (1) the absent party has been seen or heard of after the date of the second marriage; (2) the other party never filed for divorce and never was served with divorce papers prior to the second marriage; and (3) a search of the records of every jurisdiction in which either party to the former marriage has lived yields no record of any divorce. Watson v. Watson, 11 A.S.R.2d 30.

Marriage by a person who was already married was "void ab initio" and could not be ratified by cohabitation with the later spouse, but subsequent dissolution of the earlier marriage by divorce removed any impediment to the later marriage; a rule against ratification of the later marriage is therefore conceptually unnecessary. Watson v. Watson, 11 A.S.R.2d 30.

Rule against ratification of formerly bigamous marriages by cohabitation after the dissolution of the earlier marriage is probably counterproductive as a rule of policy, since it often punishes the innocent and rewards the guilty. Watson v. Watson, 11 A.S.R.2d 30.

Rule that would allow ratification of formerly bigamous marriages, although not of presently bigamous ones, would not be inconsistent with society's refusal to countenance bigamy or to encourage its continuation. Watson v. Watson, 11 A.S.R.2d 30.

Lack of a good-faith belief in the validity of a marriage, in a jurisdiction such as American Samoa that does not recognize common-law marriages, precludes finding a putative marriage for inheritance purposes. Estate of Fuimaono, 21 A.S.R.2d 121.

The question of the existence of a marriage is one of fact. Estate of Fuimaono, 25 A.S.R.2d 110.

Cohabitation and reputation as husband and wife are not only relevant for purposes of common‑law marriage; they constitute evidence that a marriage ceremony in fact took place. Estate of Fuimaono, 25 A.S.R.2d 110.

The presumption arising from a long and consistent pattern of marriage-type behavior bears weight of its own. Estate of Fuimaono, 25 A.S.R.2d 110.

In American Samoa, for a man and a woman to enter into a valid marriage contract, a marriage ceremony must be performed by a duly authorized person. A.S.C.A. § 42.0101(e). Aumavae v. Aumavae, 27 A.S.R.2d 164.

Common-law marriages, if valid according to the law of the state in which they were initiated, will be recognized in other jurisdictions, even where such marriages cannot be lawfully formed. Aumavae v. Aumavae, 27 A.S.R.2d 164.

An unmarried couple who spend a short period of time in a jurisdiction without taking up permanent residence or attempting to become husband and wife in the state does not give rise to a common-law marriage. Aumavae v. Aumavae, 27 A.S.R.2d 164.

§1(2) Annulment

Marriages should only be annulled upon strict proof of invalidity. Pritchard v. Purcell, 11 A.S.R.2d 16.

Statute providing that court "may" annul illegally contracted marriages follows the general rule that annulment is an equitable remedy which may be barred by equitable defenses including estoppel, laches, or the doctrine of unclean hands. A.S.C.A. § 42.0203. Pritchard v. Purcell, 11 A.S.R.2d 16.

Where petitioner in annulment action did not wish to present any evidence other than a copy of divorce judgment obtained by respondent against another spouse five years after her marriage to petitioner, territorial statute required court to inquire about the circumstances of the marriage whose annulment was sought. A.S.C.A. § 42.0205. Watson v. Watson, 11 A.S.R.2d 30.

Evidence in annulment action to the effect that respondent secured a final divorce from her prior spouse several years after her marriage to petitioner did not establish that an interlocutory decree had not been granted before the marriage to petitioner, or that the prior spouse had not obtained an earlier divorce from respondent in another proceeding, or even that the prior spouse was still alive when respondent married petitioner. Watson v. Watson, 11 A.S.R.2d 30.

Equitable doctrines of clean hands and estoppel will not bar annulment of bigamous marriage where party seeking annulment is apparently motivated by remorse for his offense against society's moral and legal code, but these doctrines do bar an action by a party who has merely tired of his bargain and seeks annulment as a substitute for divorce. Watson v. Watson, 11 A.S.R.2d 30.

Equitable considerations in favor of granting annulment of bigamously contracted marriage despite estoppel and clean hands doctrine, including the argument that by denying annulment the court would countenance the continued perpetration of crime and that annulment might help to clarify the rights of innocent third parties, do not appear in a case where the prior marriage has been dissolved. Watson v. Watson, 11 A.S.R.2d 30.

Application of equitable principles of estoppel and clean hands to action for annulment of formerly bigamous marriage was bolstered by territorial statutes providing that court "may" annul any marriage that was illegally contracted, and setting forth strict rules against judgment by default, collusive suits, and the granting of judgment in favor of a guilty party. A.S.C.A. §§ 42.0203, 42.0204-11. Watson v. Watson, 11 A.S.R.2d 30.

The standard rule precludes annulment based on pregnancy misrepresentations when the parties engage in sexual intercourse prior to marriage. Taianamu v. Tainamu, 27 A.S.R.2d 71.

A marriage may be dissolved by divorce or annulment only on the grounds set forth by statute in A.S.C.A. §§ 42.0202 and 42.0203. A.S.C.A. §§ 42.0202, 42.0203. Taianamu v. Tainamu, 27 A.S.R.2d 71.

§ 2 Divorce

§2(1) Grounds

A statute specifying "habitual cruelty or ill usage" as a ground for divorce is not satisfied by proof of irreconcilable differences between husband and wife. A.S.C.A. § 42.0202. Chun v. Chun, 3 A.S.R.2d 23.

"Habitual cruelty or ill usage" in divorce statute includes such things as physical violence, threats, and gratuitous harassment. A.S.C.A. § 42.0204. Chun v. Chun, 3 A.S.R.2d 23.

The agreement by a spouse against whom divorce is sought not to contest the divorce does not relieve a court of its statutory duty to examine all witnesses and to dismiss the action if the petitioner has failed to prove the charge. A.S.C.A. § 42.0205-06. Chun v. Chun, 3 A.S.R.2d 23.

"Habitual cruelty or ill usage" in divorce statute does not encompass mere disagreement between the spouses, not even disagreement on matters about which the spouses have strong feelings and beliefs. A.S.C.A. § 42.0202. Lea'e v. Lea'e, 3 A.S.R.2d 51.

A divorce for habitual cruelty or ill usage may be granted in the absence of physical violence, but only when the record reflects a pattern of conduct that is so shameful or bizarre as to be unbearable, and in which it is reasonably clear who is the wrongdoer and who is the victim. A.S.C.A. § 42.0202. Lea'e v. Lea'e, 3 A.S.R.2d 51.

Husband's admission that he sometimes beat his wife required the court to dismiss his action for divorce where territorial statute requires dismissal if the plaintiff is shown guilty of one of the grounds for divorce. A.S.C.A. 42.0206(a)(5). Lea'e v. Lea'e, 3 A.S.R.2d 51.

Party's untrue statements that his wife had been delinquent in pursuing a divorce action pending in Hawaii constituted "misrepresentation" justifying relief from territorial court decision to lift stay of local divorce proceeding that had been expressly conditioned on diligent pursuit of the Hawaii action. T.C.R.C.P. Rule 60(b). Wray v. Wray, 5 A.S.R.2d 34.

Ability to litigate contested issues incident to divorce, such as custody, child care, and property division, was relevant to decision whether to vacate divorce decree even though there had been no final order with respect to those issues. T.C.R.C.P. Rule 60(b). Wray v. Wray, 5 A.S.R.2d 34.

Respondent in a divorce action asserted a meritorious defense, notwithstanding her own suit for a "no-fault" divorce in another jurisdiction, where her pleadings denied that she had committed any of the acts alleged by petitioner and required by territorial law as grounds for divorce. T.C.R.C.P. Rule 60(b). Wray v. Wray, 5 A.S.R.2d 34.

Territorial statute clearly prohibits court from granting divorce absent proof of "fault-based" statutory criteria, even in case where respondent had stipulated to default judgment and waived the right to contest the divorce action. A.S.C.A. §§ 42.0202, 42.0205-06. West v. West, 5 A.S.R.2d 88.

Party seeking divorce must prove entitlement under statutory criteria even when respondent does not answer or appeal. A.S.C.A. 42.0205, T.C.R.C.P. Rule 50(e). Fiu v. Fiu, 5 A.S.R.2d 146.

Proof of his wife's adulterous activities entitled petitioner to divorce decree when wife's counter-allegations of adultery were not proven by credible evidence. Fiu v. Fiu, 5 A.S.R.2d 146.

Spouse who did not tell her spouse about a pending criminal prosecution against her, denied it when he asked her about it, and perpetuated the lie to the evident despondency of the other spouse, was guilty of "ill usage" within meaning of divorce statute. A.S.C.A. § 42.0202(2). Suluvale v. Suluvale, 10 A.S.R.2d 28.

"Habitual cruelty or ill usage" as ground for divorce is not equivalent to "irreconcilable differences," "incompatibility," or other "no fault" grounds for divorce, but requires a finding of fault. A.S.C.A. § 42.0202(2). Suluvale v. Suluvale, 10 A.S.R.2d 28.

Under circumstances of condonation the court is required to dismiss a petition for judicial separation. A.S.C.A. § 46.0206(6). Sa'aga v. Sa'aga, 20 A.S.R.2d 18.

When condonation of a spouse's misconduct exists, earlier misconduct cannot be grounds for divorce, but if the wrongdoer continues or revives his or her misconduct, condonation may be vitiated. A.S.C.A. § 42.0207. Sesepasara v. Sesepasara, 21 A.S.R.2d 71.

In determining condonation of spousal misconduct, which bars divorce, the key elements are genuine forgiveness of the misconduct and intent to start afresh, though passage of time and renewed sexual intercourse constitute significant evidence. Sesepasara v. Sesepasara, 21 A.S.R.2d 71.

Acts of marital misconduct committed after separation may afford grounds for divorce. Stevens v. Stevens, 21 A.S.R.2d 76.

Habitual cruelty or ill usage involves such things as physical violence, threats, and gratuitous harassment, or other conduct so shameful and bizarre as to be unbearable. Taianamu v. Tainamu, 27 A.S.R.2d 71.

"Irreconcilable differences" will establish neither habitual cruelty nor ill usage. Taianamu v. Tainamu, 27 A.S.R.2d 71.

The defense of recrimination is no longer available. Lacambra v. Lacambra, 28 A.S.R.2d 114.

§2(2) Property Distribution

Court would allow assets of corporation to be garnished to satisfy judgment owed by ex-husband to ex-wife under divorce decree, where (1) business had been jointly owned and managed by husband and wife, (2) husband had formed a corporation in which he and another person owned all the shares and had secured wife's agreement to transfer the business to the corporation a few months before husband filed for divorce, (3) evidence suggested that corporation now owned assets formerly belonging to husband and wife, and (4) the amount garnished was less than the amount of payments long overdue on a property settlement which had been ordered by the court to compensate wife for her interest in the business now owned by the corporation. Dellumo v. Dellumo, 4 A.S.R.2d 48.

Spousal support is awarded for reasons of public policy and is not freely alienable by private contract. Parisi v. Parisi, 10 A.S.R.2d 106.

Court may modify a foreign alimony judgment, at least with respect to those portions of the judgment that have already come due, notwithstanding the entitlement of the foreign judgment to full faith and credit. Godinet v. Godinet (Mem.), 11 A.S.R.2d 156.

A collateral claim on behalf of carpenters who had built the marital home should not be entertained in the context of a divorce proceeding, especially where the pleadings did not alert anyone to anticipate the claim and therefore did not provide respondent with adequate notice and a meaningful opportunity to be heard. Ah Ching v. Ah Ching, 13 A.S.R.2d 34.

Dismissal of petitioner's claim against respondent in divorce action on behalf of carpenters who had built the marital home was without prejudice either to any claims which the petitioner might have to indemnification or to any claims which the carpenters themselves might have. Ah Ching v. Ah Ching, 13 A.S.R.2d 34.

Petitioner's claim to reimbursement of proceeds from sale of his separate property, which had been spent partly to feed carpenters who were constructing the marital home, would be denied; although awarded to the respondent in the divorce proceeding, the marital home benefitted the petitioner during the marriage, and the parties were not entitled to be restored to their former positions as if the marriage had never occurred. Ah Ching v. Ah Ching, 13 A.S.R.2d 34.

Although the California family court which granted divorce judgment retained jurisdiction to enforce the judgment and the parties to that judgment could move to enforce it in that California court, High Court was not precluded from enforcing the judgment under the Uniform Enforcement of Foreign Judgments Act where both parties currently resided in American Samoa. A.S.C.A. § 43.1701 et seq. Huff v. Huff, 15 A.S.R.2d 83.

Where a party to a divorce decree issued by the High Court which provided for a property settlement later sought to modify the decree when the parties no longer lived in American Samoa, the Court asserted jurisdiction regarding the property issue since the property in question was still located in American Samoa. Mahoney v. Mahoney, 16 A.S.R.2d 109.

Petition to modify the property settlement agreement in a divorce decree on the ground of mistake was denied where the language of the agreement unambiguously stated that one party would pay a fixed sum to another and did not condition such payment on the successful sale of the property in question. Mahoney v. Mahoney, 16 A.S.R.2d 109.

Petition to modify the property settlement provision in a divorce decree on the ground of mistake was denied where the provision was part of a final divorce decree that had settled the property rights of the parties for at least ten years. Mahoney v. Mahoney, 16 A.S.R.2d 109.

Court orders providing for property settlements, unlike orders for alimony, may not be modified by the court to reflect changes in the circumstances of the parties. Mahoney v. Mahoney, 16 A.S.R.2d 109.

The "order in aid of judgment" statute requires the court, upon application from a judgment debtor, to order a payment schedule which "shall allow the debtor to retain such property and such portion of his income as may be necessary to provide the reasonable living requirements of the debtor and his dependents," specifically including traditional, Samoan family obligations. A.S.C.A. § 43.1501. Samoa Products, Inc. v. A`asa, 17 A.S.R.2d 66.

All assets of the marital estate, including assets held outside of the Territory, are subject to the court's jurisdiction, although the court may not have jurisdiction to enforce an award of real property in another forum. Rocha v. Rocha, 20 A.S.R.2d 63.

Absent fraud, marital property does not include property that has been reasonably expended by one of the spouses for his or her own use or as a gift. Rocha v. Rocha, 20 A.S.R.2d 63.

That one spouse transferred money to a parent, apparently motivated by the filing of a divorce action, does not detract from the trial court's acceptance that the transfer was a bona fide gift. Rocha v. Rocha, 20 A.S.R.2d 63.

The presumption that property owned at the time of divorce is not separate property may be negated by testimony concerning gifts during the marriage or transfers prior to the marriage. Rocha v. Rocha, 20 A.S.R.2d 63.

Even if the trial court's decision concerning the value of the marital estate was perhaps mistaken in some particulars, it was not clearly erroneous. Rocha v. Rocha, 20 A.S.R.2d 63.

A foreign divorce decree was not recognized when (1) the decree was not properly authenticated, (2) the foreign jurisdiction lacked a legitimate interest in the parties' marital status, (3) the sole purpose of seeking a divorce in a foreign court was to evade American Samoa's laws, and (4) the divorce proceedings were ex parte and did not give reasonable notice to the defendant. Stevens v. Stevens, 21 A.S.R.2d 76.

The appropriate remedy for a lack of financial support from an estranged spouse is a lawsuit against him at common law, not a self‑help resort to the assets of his corporation. Transpac Corp. v. Drabble, 25 A.S.R.2d 66.

A divorce decree which is final between the parties does not, and cannot, foreclose the possibility of ownership interests by others who were not parties to the decree, and a trial court is properly empowered to adjudicate those interests. Reine v. Taotoai, 25 A.S.R.2d 136.

A divorce decree prevails over a separation agreement as the final word on the issue of ownership of marital property. Pen v. Pen, 30 A.S.R.2d 119.

§2(3) Child Custody

Even if territorial law precludes granting a divorce, a court has authority in equity to issue orders on the care, custody and control of the parties' minor children and on both child and spousal support while the parties are separated. Sesepasara v. Sesepasara, 21 A.S.R.2d 71.

Other things being equal, children of tender years should remain together and their custody given to the mother; other factors are a good home, congenial surroundings, and intelligent attention and direction in matters affecting the health, education, growth and development of the children. Stevens v. Stevens, 21 A.S.R.2d 76.

The court has exclusive original jurisdiction when the question of legal custody is incidental to the determination of a cause in the court. A.S.C.A. § 45.0115(d). Aumavae v. Aumavae, 27 A.S.R.2d 164.

The court has the inherent power, due to its authority to protect children, to make an order relative to the custody and support of a child born as an issue of an invalid marriage. Aumavae v. Aumavae, 27 A.S.R.2d 164.

In a state where the welfare of the child is the primary consideration in shaping a custody decree and where the custody decree is not irrevocable or unchangeable, the custody decrees of that state's courts are ordinarily not res judicata in that state or elsewhere, except as to the facts before the court at the time of judgment. In re A Minor Child, 28 A.S.R.2d 33.

§2(4) Child Support

Where a party to a divorce decree issued by the High Court which provided for custody and support of the parties' minor children and a property settlement later sought to modify the decree when the parties no longer lived in American Samoa, the Court declined to exercise jurisdiction on the issues of child support and custody, since the courts of domicile or residence could more effectively enforce terms ensuring the children's welfare and best interests and had a more substantial interest in doing so. Mahoney v. Mahoney, 16 A.S.R.2d 109.

The court, in its role as parens patriae, can inquire into a situation in which minor children were deprived of financial support due to deductions made from their father's paychecks. Sa'aga v. Sa'aga, 20 A.S.R.2d 18.

It is generally unlawful to garnish more than 25% of an individual's disposable earnings, or to deduct earnings unless the employee has agreed in writing. 15 U.S.C. § 1673; A.S.C.A. § 32.0333. Sa'aga v. Sa'aga, 20 A.S.R.2d 18.

§2(5) Service of Process

When a petitioner files an affidavit that personal service cannot be made upon a respondent in a divorce action within American Samoa, due to nonresidency or unknown residency, service of process may be made by publication or registered mailing. A.S.C.A. §§ 43.0501-43.0504; T.C.R.C.P. 4(e), 12(a). Pula v. Pula, 24 A.S.R.2d 93.

When personal service cannot be made upon a respondent in a divorce action within American Samoa, a petitioner may apply for an order authorizing issuance of a notice for service by publication, supported by an affidavit or another acceptable, verified statement of nonresidency or unknown residency. A.S.C.A. §§ 43.0501-43.0504; T.C.R.C.P. 4(e). Pula v. Pula, 24 A.S.R.2d 151.

§ 3 Children

§3(1) Best Interests of the Child

The court should not grant a termination or relinquishment of parental rights unless it is proven by clear and convincing evidence to be in the best interest of the child. In re Three Minor Children (Mem.), 3 A.S.R.2d 4.

In assessing the best interests of a child for the purposes of a proceeding to terminate parental rights so that the child can be adopted, the court must consider the prospective adopting parents' ability to support the child until the child's majority and may therefore consider the ages of the child, of the natural parents, and of the prospective adopting parents. In re A Minor Child, 4 A.S.R.2d 181.

Petition for termination or relinquishment of parental rights should not be granted where no benefit to child would result. In re A Minor Child, 7 A.S.R.2d 115.

Before granting a petition for relinquishment of parental rights and obligations, a court must consider the best interests and welfare of the child and the reasons relinquishment is sought, and must be satisfied that the parents have been counseled and fully advised of the consequences and also that relinquishment is in the best interest of all parties concerned. In re Two Minor Children, 11 A.S.R.2d 91.

Where natural parents provide an adequate home environment and are fit and suitable parents, and seem able to provide for the child as well as the grandparents who are seeking to adopt the child, granting petition for relinquishment of parental rights and obligations may not be in the best interest of the child. In re Two Minor Children, 11 A.S.R.2d 91.

Petition by natural parents to relinquish their parental rights was denied where petitioners failed to show they were unable to provide for the child, or that relinquishment was in child's best interests considering the age difference between the child and grandparents wishing to adopt her. In re A Minor Child, 13 A.S.R.2d 33.

Petitions to terminate legal rights and obligations of natural parents in order to facilitate adoption by much older prospective adopting parents were not in the best interest of the children, where natural parents were much younger, had potential to be good providers, and appeared to have strong bonds with the children. In re Two Minor Children, 13 A.S.R.2d 94.

Petition of the natural parents to relinquish their parental rights in favor of the grandparents was denied as not in the best interests of the child where grandparents were both 75 years old and parents would eventually have to resume the care of the child when grandparents could no longer do so. In re A Minor Child, 14 A.S.R.2d 54.

Legal termination of natural parents' rights and obligations is appropriate only when it would serve the best interests of the child. In re A Minor Child, 14 A.S.R.2d 82.

In the absence of extraordinary circumstances a child's best interests are not served by terminating the obligations of young able‑bodied parents to support him. In re A Minor Child, 14 A.S.R.2d 82.

A legal termination of parental rights can be granted only if it is in the best interests of the children; absent a showing that the children will be better off, an adoption petition is properly denied. In re Two Minor Children, 15 A.S.R.2d 28.

A legal adoption was deemed not in the child's best interest, even though the prospective adopting parents love and could provide more than adequate financial support for the child, and the child appears to have been informally adopted. In re a Minor Child, 17 A.S.R.2d 86.

A legal adoption was deemed not in the child's best interest when her parents were thirty-years-old and the prospective adopting parent is her 64-year-old grandfather, who is a widower and will be almost eighty years old by the time the child reaches majority. In re a Minor Child, 17 A.S.R.2d 87.

In a petition to relinquish parental rights to a child, a court is required to first consider the best interest and welfare of the child, as well as the best interest of all concerned. A.S.C.A. §§ 45.0102, 45.0402. In re Two Minor Children, 19 A.S.R.2d 32.

When a change in legal status is not in the child's best interest, customary Samoan adoption may continue to inure. In re a Minor Child, 20 A.S.R.2d 49.

Relinquishment of parental rights must be predicated on the best interests of all concerned, but disruption of natural family relationships may not be in the children's long-term best interests. A.S.C.A. § 45.0402(e). In re Three Minor Children, 23 A.S.R.2d 113.

The best interests of all persons concerned, particularly those of the minor child, must be served by the outcome of proceeding for the relinquishment of a parent‑child relationship. In re a Minor Child, 25 A.S.R.2d 70.

In the absence of evidence to the contrary, the law favors preservation of the children's natural circumstances. In re Two Minor Children, 26 A.S.R.2d 117 (Trial Div. 1994).

When a court obtains jurisdiction over a minor, its power to modify the custody arrangements in the interest of that child are equal to those of the state issuing the original decree. In re A Minor Child, 28 A.S.R.2d 33.

Relinquishment of parental rights must be based on the best interests of all concerned, but the child's best interests are paramount. In re Two Minor Children, 28 A.S.R.2d 113.

It is not in the children's best interests to divest the natural parents of their parental rights and obligations based on immediate financial pressures. In re Two Minor Children, 28 A.S.R.2d 177.

Formal adoptions based principally on impecunious circumstances are not in the children's best interests, the overriding concern. In Re Three Minor Children, 29 A.S.R.2d 52.

In determining the divestiture of parental rights for the purpose of subsequent adoption, a child's best interests come first. A child’s interests are not best served by legally severing the parent-child relationship when the child is living with her natural parents, who provide her support. In Re A Minor Child, 29 A.S.R.2d 53.

§3(2) Involuntary Relinquishment of Parental Rights - Termination

In actions for the termination of parental rights, strict attention must be paid to compliance with statutes and also to ensuring that the natural parent has actual notice of the proceeding, a fair opportunity to be heard, and an understanding of the legal consequences. In re Three Minor Children (Mem.), 3 A.S.R.2d 4.

The statutory procedure for involuntary termination of parental rights should not be used in place of a voluntary relinquishment merely to avoid bringing the natural parents to court. In re Three Minor Children (Mem.), 3 A.S.R.2d 4.

Although the territorial statute dealing with involuntary termination of parental rights does not require the presence of the natural parents in court, it is quite difficult for the court to determine the best interest of the child unless the natural parents testify. In re Three Minor Children (Mem.), 3 A.S.R.2d 4.

Natural father's parental rights cannot be terminated without compliance with statutory requirements, including that diligent efforts be made to give actual notice. In re A Minor Child, 4 A.S.R.2d 181.

A party seeking the termination of parental rights must provide notice to the child's natural father, either by the statutorily approved method, or by publication if permitted by court order. In re A Minor Child, 4 A.S.R.2d 181.

Proceedings to terminate parental rights upon ground that the children are neglected and dependent are adversarial in nature, in contrast to relinquishment proceedings which are voluntary. A.S.C.A. §§ 45.0115, 45.0103, 45.0401. In re Two Minor Children, 8 A.S.R.2d 75.

Court would not terminate parental rights on ground that the children are neglected and dependent where, although the parents had not provided for the children, they left the children in the care of grandparents due to economic necessity and have shown no deliberate disregard for their parental duties. In re Two Minor Children, 8 A.S.R.2d 75.

Court will not order relinquishment of parental rights until it is satisfied that the relinquishing parent has been counseled and fully advised of the consequences of relinquishment. A.S.C.A. § 45.0402(d). In re Two Minor Children, 8 A.S.R.2d 75.

Parental rights should not be terminated without the testimony of each natural parent unless it is genuinely impossible to obtain such testimony or there is clear and convincing evidence that the parents genuinely understand and consent to the termination. In re A Minor Child, 7 A.S.R.2d 125.

Even where court has jurisdiction over natural parents against whom termination of parental rights is sought, termination should not be granted unless the court is convinced that parents genuinely understand and consent to termination, or that termination is in the best interest of the child notwithstanding a lack of parental understanding or consent. In re Three Minor Children, 10 A.S.R.2d 57.

Legal termination of parental rights has important and irrevocable legal consequences that are often quite different from those of Samoan customary informal adoption, in which children often return to their natural parents. In re Three Minor Children, 10 A.S.R.2d 57.

Termination of rights and obligations of natural parents who were in their thirties, and legal adoption of the children by their great-aunt, a 68-year-old widow who was not the primary provider of financial support for her household, was not in the best interest of the children. In re A Minor Child, 11 A.S.R.2d 107.

Untruthful testimony by petitioner in proceeding for termination of parental rights cast into doubt her testimony concerning her inability to give the natural parents actual notice of the proceeding and their earlier willingness to let their child be raised by her. In re A Minor Child, 11 A.S.R.2d 107.

Where grounds for petition to terminate parental rights were simply that the child's grandmother had taken care of her since birth, the petition failed to show circumstances of a "neglected or dependent child" as required by territorial statute. A.S.C.A. §§ 45.0401(a)(1) & (a)(3). In re A Minor Child, 12 A.S.R.2d 15.

Petition by child's grandmother to terminate the parental rights of her daughter and son-in-law should be denied, even if it could be construed as a voluntary petition for relinquishment by the natural parents, where the court could neither ascertain whether absent natural parents were counseled and advised of consequences nor conclude that the child's best interests (considering age, income, prospects, and composition of both households) would be served. In re A Minor Child, 12 A.S.R.2d 15.

Relinquishment of parental rights must be predicated on the best interests of all concerned. A.S.C.A. § 45.0402(e). In re Three Minor Children, 25 A.S.R.2d 1.

Western Samoan courts are in a better position to meaningfully assess the natural circumstances of a Samoan baby who was born in Western Samoa to Western Samoan domiciled parents and, therefore to, judge whether it is in his best interests and welfare to sever his legal relationship to his parents. In re a Minor Child, 26 A.S.R.2d 105.

The involuntary parental rights termination proceeding under A.S.C.A. § 45.0103(19) is not to be used to avoid the necessity of having the natural parents attend court. A.S.C.A. § 45.0103. In re a Minor Child, 27 A.S.R.2d.

§3(3) Voluntary Relinquishment of Parental Rights – Adoption

SEE SAMOAN CUSTOMS § 3(2) – Adoption

Legally adopted children become members of family and have same rights as family members to use family lands. Fao Family v. Fao, 2 A.S.R. 299.

Court will consider children adopted in accordance with Samoan custom to be members of family. Leasiolagi v. Fao, 2 A.S.R. 451.

When natural parents desire to relinquish their own rights in order that some other person can adopt their child, the statutory procedure is a voluntary relinquishment of parental rights. A.S.C.A. § 45.0402. In re Three Minor Children (Mem.), 3 A.S.R.2d 4.

The territorial statute dealing with voluntary relinquishment of parental rights requires that the natural parents be present in court. A.S.C.A. § 45.0402. In re Three Minor Children (Mem.), 3 A.S.R.2d 4.

Where child lives with natural parents as well as prospective adopting parents and the only apparent effect of a termination of parental rights would be to enable a prospective adopting parent to obtain higher Social Security benefits, the termination will be denied. In re Two Minor Children, 4 A.S.R.2d 21.

Notwithstanding the consent of child's natural parents to the termination of their parental rights and obligations so that child could be adopted by another couple, such termination would not serve the best interests of the child where (1) the prospective adopting parents were sixty-four and fifty-eight years old, (2) the natural parents were much younger, (3) the child had lived for most of his life with his natural parents, and (4) the only apparent advantage of a legal adoption would be increased Social Security benefits for the prospective adopting parents. In re A Minor Child, 4 A.S.R.2d 138.

In order for a child to leave his natural parents and live with another couple as their adopted child in accordance with Samoan custom, it is not necessary that the child be legally adopted or that the legal rights and obligations of the natural parents be terminated. In re A Minor Child, 4 A.S.R.2d 138.

The best interests of a two-year-old child would not be served by terminating the parental rights and obligations of her natural mother so that she could be adopted by her seventy-six-year-old great-grandmother. In re A Minor Child, 4 A.S.R.2d 181.

When purpose of action for relinquishment of parental rights was to allow the child to live with his grandmother, purpose could be achieved without the necessity of formal relinquishment and adoption, and the grandmother proposing to adopt was less well-equipped than natural parents to support the child throughout the period of his minority, petition to relinquish would be denied. A.S.C.A. § 45.0402. In re A Minor Child, 6 A.S.R.2d 123.

Since termination or relinquishment of parental rights also divests natural parents of legal obligations to the child, court should take account of the ages of natural parents and of proposed adoptive parents as a factor in determining who will be better able to care and provide for the child during the remaining period of minority. A.S.C.A. § 43.0403. In re A Minor Child, 7 A.S.R.2d 115.

Child would not benefit from relinquishment order where (1) proposed adoptive parent was 79, natural parents were 39 and 49, and child was 10; (2) natural parents were employed and had a family home; and (3) proposed adoptive parent received a total income of $275 per month and relied on support from other family members to maintain household. In re A Minor Child, 7 A.S.R.2d 115.

Court could not make the required finding that an order to relinquish only the mother's parental rights was in the best interests of all parties concerned where, although the mother appeared and testified that she appreciated the consequences of relinquishment, the father did not appear and the petition did not anticipate a piecemeal approach to the termination of parental rights. In re Two Minor Children, 8 A.S.R.2d 75.

Samoan parents who give their children to another family to raise, or who sign a waiver prepared by counsel for prospective adopting parents, cannot be conclusively presumed to understand and agree to the consequences of a legal termination of parental rights. In re Three Minor Children, 10 A.S.R.2d 57.

Except where it is genuinely impossible to locate natural parents whose rights are sought to be terminated, or where bringing them to American Samoa would occasion extraordinary hardship, they should be counseled by territorial child protective service and should be made available as witnesses before the court. In re Three Minor Children, 10 A.S.R.2d 57.

Parents who relinquished rights to their child so that he could be adopted by another family did not thereby terminate the child's legal relationship to his brother. Galo v. American Samoa Gov't, 10 A.S.R.2d 94.

That grandparents have cared for child since birth and that grandfather wishes to formalize his love for the child by legal adoption are not sufficient grounds to sustain natural parents' petition for relinquishment of their parental rights and obligations. In re Two Minor Children, 11 A.S.R.2d 91.

The difference in ages between grandparents of 62 and 63 years and a child of 7 years speaks against terminating the rights and obligations of the natural parents so that the grandparents can adopt the child. In re Two Minor Children, 11 A.S.R.2d 91.

Granting a petition for relinquishment of parental rights and obligations may be in the best interest of the child where natural parents have had a marriage punctuated by separations, natural father has not been responsive to his paternal obligations, and natural father opines that his father-in-law is better suited to care for the child. In re Two Minor Children, 11 A.S.R.2d 91.

Where children lived with both their natural parents and their grandparents, had close relationships with both, regarded their natural parents as their mother and father, and both parents and grandparents were financially able to provide for the children, termination of rights and obligations of the natural parents and legal adoption by grandparents was not in the best interest of the children. In re Two Minor Children, 11 A.S.R.2d 108.

For parental rights to be voluntarily relinquished, the court must be satisfied that the relinquishing parent was counseled and fully advised of the consequences and that relinquishment best serves the interests of all concerned parties. A.S.C.A. §§ 45.0401(a)(2), (d), & (f). In re A Minor Child, 12 A.S.R.2d 15.

Where prospective adopting father was almost seventy years old, had suffered a stroke and was too sick to come to court for the relinquishment hearing, and natural parents were young and healthy, child could go on living with the prospective adopting parents for as long as the arrangement was suitable to all concerned, but it would not be in the child's best interest to terminate the natural parents' obligation to provide support. In re Two Minor Children, 12 A.S.R.2d 87.

Where the only effect of a legal adoption of a child by his grandparents, aside from any possible increase in the retirement or social security benefits of the grandfather, would be to deprive the child of the legal duty of support owed by his 38-year-old employed natural father and to substitute a similar duty on the part of a 62-year-old retired grandfather, a change in legal relationships would not be in the child's best interest. In re Two Minor Children, 12 A.S.R.2d 87.

Petitions for registration of Western Samoan adoption decrees were denied where the petitions revealed nothing about the facts underlying the foreign judgments, sought a blanket declaration to the effect that Western Samoan adoption decrees were entitled to full faith and credit in American Samoa, and were conspicuously unrelated to any underlying rights at stake requiring "enforcement" in American Samoa. A.S.C.A. § 43.1701 et seq. In re Petition of Puailoa, 13 A.S.R.2d 22.

Where young and able-bodied natural parents had sent their child to live with an elderly couple because the older couple did not have anyone to do chores, court would deny legal termination of the natural parents' rights and obligations even though the elderly couple appeared to be fine people and appeared to have developed a genuine affection for the child. In re A Minor Child, 14 A.S.R.2d 82.

Informal fa`a Samoa adoptions do not require the consent of the Court because they do not affect the legal rights and obligations of the parties. In re Two Minor Children, 15 A.S.R.2d 28.

Petition of capable, healthy, and young natural parents to relinquish their rights to their minor child was denied where the grandparents wishing to adopt the child relied upon sources of income (social security, military retirement, and disability benefits) that would be reduced or curtailed upon their deaths. In re A Minor Child, 16 A.S.R.2d 9.

Petition by middle aged, able-bodied natural parents to relinquish their parental rights was denied since they failed to show relinquishment was in the best interest of their minor child where her father was gainfully employed and required to pay child support for her under a divorce decree, while her grandmother who wished to adopt her received social security benefits. In re A Minor Child, 16 A.S.R.2d 106.

Petition by middle aged, able-bodied natural parents to relinquish their parental rights was denied since they failed to show relinquishment was in the best interest of the minor where petitioners, their minor child, and the grandmother wishing to adopt him all lived together, the child was aware of his natural parents, and the parents were gainfully employed while the grandmother received only social security benefits and rental income. In re A Minor Child, 16 A.S.R.2d 108.

Petitions by natural parents to relinquish their parental rights and petition by grandmother with whom their minor child resided to terminate their parental rights were denied as not in the minor's best interests, where mother was now married and capable of caring for child, father was employed and reportedly also married, and grandmother was an elderly widow whose income was insufficient to support herself and child without assistance. In re a Minor Child, 17 A.S.R.2d 31.

A petition to relinquish parental rights to a child is not ordinarily favored unless the evidence is clear and convincing that the prospective adopting parents are in a better position to secure the best interest and welfare of the minor. A.S.C.A. §§ 45.0102, 45.0402. In re Two Minor Children, 19 A.S.R.2d 32.

Petitions of healthy, young, natural parents to relinquish their parental rights and obligations in favor of elderly relatives have been consistently rejected by the High Court. A.S.C.A. §§ 45.0102, 45.0402. In re A Minor Child, 19 A.S.R.2d 97.

A Samoan customary adoption does not require Court approval or a legal termination of the rights and obligation of the natural parents. In re A Minor Child, 19 A.S.R.2d 97.

Unless relinquishment of parental rights can be found to enhance a child's best interests, the court is not permitted to grant the petition. In re a Minor Child, 20 A.S.R.2d 49.

Relinquishment of parental rights must be based in very substantial part on the best interests of all persons concerned; as such, the court refused to legally sever a minor's relationships with his natural family to have him raised by an older, single parent who is in poor health. A.S.C.A. § 45.0402(e). In re a Minor Child, 23 A.S.R.2d 129.

Termination proceedings may only be had when the child has been neglected by his parents or is homeless. In re a Minor Child, 25 A.S.R.2d 52.

Grandparents can be the primary caregivers of their grandchildren, as is often done in Samoan tradition, if all concerned agree, without legally severing the parent‑child relationship. Such severance could leave the child without legal recourse for support during a long period of dependency if the grandparents become unable to care for her. In re a Minor Child, 25 A.S.R.2d 70.

This court has been loathe to take the drastic action of severing a child's legal relationship to his or her natural parents, unless it is satisfied that the child will realize some net benefit through the change in legal status and a severance of legal ties to the natural parents and corresponding obligations of support. In re a Minor Child, 25 A.S.R.2d 89.

A change in legal status is not necessary to facilitate customary fa`a Samoa adoption. In re a Minor Child, 25 A.S.R.2d 89.

In action to voluntarily relinquish parental rights pursuant to A.S.C.A. § 45.0402, the court may not dispense with the need to have the natural parents attend court to present such a voluntary relinquishment petition, even if the reason for the natural parents’ absence is their inability to afford travel to American Samoa. A.S.C.A. § 45.0402. In re a Minor Child, 27 A.S.R.2d 160.

When natural parents voluntarily relinquish their parental rights, the appropriate action to legally terminate parental rights is an A.S.C.A. § 45.0402 petition for voluntary relinquishment of parental rights, which must be filed by the natural parents. A.S.C.A. § 45.0402. In re a Minor Child, 27 A.S.R.2d 122.

A.S.C.A. § 45.0402, the statutory provision that permits natural parents to voluntarily relinquish their parental rights, effectively requires that the natural parents be present in court. A.S.C.A. § 45.0402. In re a Minor Child, 27 A.S.R.2d 122.

In an action to voluntarily relinquish parental rights pursuant to A.S.C.A. § 45.0402, the court may not dispense with the need to have the natural parents attend court to present such a voluntary relinquishment petition, even if the reason for the natural parents’ absence is their inability to afford travel to American Samoa. A.S.C.A. § 45.0402. In re a Minor Child, 27 A.S.R.2d 160.

Although a mother is the natural custodian of her young, other factors that the court should weigh in deciding custody are a good home, congenial surroundings, and intelligent attention and direction in matters affecting the health, education, growth and development of the children. Aumavae v. Aumavae, 27 A.S.R.2d 164.

In the absence of evidence to the contrary, the law favors preservation of the children's natural circumstances. In re Two Minor Children, 26 A.S.R.2d 117.

The provisions of Title 45, A.S.C.A. § 45.0102 et seq., must be liberally construed to effectuate, in part, "the preserv[ation] and strengthen[ing of] aiga ties whenever possible," A.S.C.A. § 45.0102(2), and "secur[ing] for any child removed from the custody of his parents, the necessary care, guidance, and discipline to assist him in becoming a responsible and productive member of society." A.S.C.A § 45.0102(4). In Re A Minor Child, 29 A.S.R.2d 18.

Generally, joint petitions for adoption can only be filed by married couples. In Re A Minor Child, 29 A.S.R.2d 18.

Under the facts of the particular case, wherein the best interests of the child are at stake, the court may accept a joint petition filed by a couple with a long standing stable relationship that closely approximates common law marriage. In Re A Minor Child, 29 A.S.R.2d 18.

A.S.C.A. § 45.0420 (a) requires a petition for adoption to be filed not later that 30 days after the child is placed in the home of the adoptive applicants for the purpose of adoption, unless the court finds that there was reasonable causes or excusable neglect for not timely filing the petition. If the court does so find, “[t]he court then fixes a date for the hearing.” A.S..C.A. § 45.0420(a). In Re A Minor Child, 29 A.S.R.2d 20.

A.S.C.A. § 45.0420(d) requires that a petition for adoption be accompanied by a statement of any fee charged relative to the adoption. That statement must also include a clause that no additional fees are to be charged. In Re A Minor Child, 29 A.S.R.2d 20.

Under the statutory scheme whereby the High Court hears relinquishment and termination of parental rights actions and the District Court separately hears the subsequent adoption actions, the only way for the government to monitor the minor child's best interests throughout this process is to appoint a Guardian of the person of the minor child. See A.S.C.A. § 45.0103(16). The logical choice for any such appointment would be the Child Protective Services Agency, Department of Human Resources, which could then actively monitor the minor child and his home environment until the decree of adoption is finally issued. In Re A Minor Child, 29 A.S.R.2d 20.

The rigid statutory adoption procedures of the Juvenile Justice Act of 1980, A.S.C.A. § 45.0101 et seq., has little effective application to relinquishment or termination of parental rights or adoptions in Samoa. When compared with traditional child rearing and child placement practices in Samoa, at almost no point can the statutes be bent to fit the local situation, as required of the court under the legislature's policy declarations set forth under A.S.C.A. § 45.0102. In Re A Minor Child, 29 A.S.R.2d 20.

Although the pre - 1980 adoption statutes were subject to some abuses, they at least provided a more culturally compatible and economical statutory scheme than the present statutes. While the Juvenile Justice Act of 1980 contains several workable chapters dealing with child shelter, care, support, and juvenile delinquency adjudications, the legislature may wish to reexamine those chapters dealing with adoption proceedings, including relinquishment or termination of parental rights for purposes of adoptions, and amend these statutes to work more effectively within the unique local context of the Samoan extended family child rearing practices. In the interim, however, all petitions for adoption must be timely filed and address all of the statutory requirements of A.S.C.A. § 45.0420(a), (b), (c), and (d). In Re A Minor Child, 29 A.S.R.2d 20.

Formal adoption via the adoption statute does not preempt the field of adoption, and does not forbid Samoan customary adoption. Fanene v. Malauulu, 30 A.S.R.2d 45.

§3(4) Guardianships & Fiduciary Duties

SEE WILLS, TRUSTS & ESTATES § 11(2) – FIDUCIARIES FOR MINORS

Court's statutory responsibility to supervise litigation involving minors imposes a duty on the court to exercise its own best judgment on the fairness of attorney fee arrangements. c(Mem.), 3 A.S.R.2d 114.

In a personal injury action on behalf of a minor, court would not approve a contingency fee larger than one-third of the total amount recovered. Oto v. National Pacific Insurance Co.

Trustee of minor's estate is charged with preserving funds in the estate until the minor reaches adulthood, and should give careful scrutiny to all proposed expenditures. In re Moea'i (Mem.), 3 A.S.R.2d 12.

In deciding whether to approve expenditures recommended by trustee of minor's estate, court considered the amount remaining in the trust, whether the amount requested was a substantial percentage of the amount remaining, the length of time remaining before the minor reaches adulthood, other expenditures likely to be requested, and whether the trustee had carefully scrutinized the proposed expenditure. In re Moea'i (Mem.), 3 A.S.R.2d 12.

Duty of a fiduciary to be zealous in protection of the interests of beneficiaries is at its highest when interests of beneficiaries may compete with personal interests of the fiduciary. Logoa'i v. South Pacific Island Airways, Inc., 6 A.S.R.2d 28.

Court would not approve a proposed settlement negotiated by guardian ad litem for minor children, where guardian ad litem had also negotiated on her own behalf as surviving spouse and as representa-tive of the decedent's estate, proposed settlement would have redounded primarily to the benefit of the spouse and the estate, and no facts were alleged to justify the small amount awarded to the children. Logoa'i v. South Pacific Island

Airways, Inc., 6 A.S.R.2d 28.

Court will not ordinarily approve proposed division of property among minors and their guardians without clear and convincing evidence that the proposed division is fair to the minors. In re Guardianship of Tedrow, 7 A.S.R.2d 72.

Duty of a guardian or other fiduciary to be zealous in the protection of the interests of those to whom the fiduciary duty is owed is at its highest in situations wherein these interests may compete with the personal interests of the fiduciary. In re Guardianship of Tedrow, 7 A.S.R.2d 72.

Although retention of a single attorney to represent the interests of minors and the personal interests of their guardian may sometimes be justified by convenience and financial savings, the guardian and the attorney must carefully consider potential conflicts between the interests of the guardian and those of the minors. In re Guardianship of Tedrow, 7 A.S.R.2d 72.

Joint representation of minors and their guardian by a single attorney is not appropriate where there is actual conflict between the reasonably arguable rights and interests of the guardian and those of the minors. In re Guardianship of Tedrow, 7 A.S.R.2d 72.

Court's signature on order authorizing guardian to proceed with a transaction and deposit a certain sum to the account of minors did not preclude court from subsequently deciding that the minors were entitled to a greater sum, where (1) guardian was an attorney who also represented another party to the same transaction; (2) the draft order was submitted to court by the guardian subsequent to a hearing at which court had given verbal approval of guardian's proposal to proceed with the transaction and hold the proceeds subject to the court's future orders on their disposition; (3) allocation of the proceeds among the minors and other parties to the transaction was not raised at the prior hearing; (4) at a subsequent hearing after the court had signed the order but before the transaction had actually occurred, the guardian did suggest that his other client was entitled to some of the proceeds of the transaction and the court expressed disagreement. In re Guardianship of Tedrow, 7 A.S.R.2d 72.

Funds held in trust for minors and other incompetents may be deposited in the court's registry, where they will be placed in interest-bearing accounts, no trusteeship fees will be charged, and disbursements will be subject to court approval. Judicial Memorandum No. 1-88, 7 A.S.R.2d 143.

Legal guardians are not responsible for funds deposited with the Court's registry and need not make periodic reports concerning such funds. Judicial Memorandum No. 1-88, 7 A.S.R.2d 143.

Funds held in trust may be held in interest-bearing accounts outside the registry of the court, but court may require periodic reports, bonding of guardian or trustee, and/or the continued involvement of an attorney in order to protect the interests of the beneficiary. Judicial Memorandum No. 1-88, 7 A.S.R.2d 143.

Father who spent funds belonging to minor for general family purposes rather than depositing them in court-ordered guardianship account would be required to restore the funds, plus the interest that would have accrued to the minor's estate if the funds had been deposited in the guardianship account. In re Guardianship of Sagapolutele, 8 A.S.R.2d 24.

Adult heirs were competent to decide whether to seek recovery of their share of decedent's estate from surviving spouse who had spent the funds in the estate, but minor heirs could not waive their share of the estate; accordingly, surviving spouse would be required to restore funds to minors' trust accounts. A.S.C.A. §§ 40.0334 et seq. In re Estate of Salanoa, 8 A.S.R.2d 26.

When parents who had accepted appointment as guardians ad litem for their minor child relinquished their parental rights to the child, parents and their attorney continued to have a fiduciary relationship requiring vigorous protection of the child's interests in connection with the lawsuit, especially insofar as these interests might conflict with their own. Galo v. American Samoa Gov't, 10 A.S.R.2d 94.

For guardians ad litem and their counsel to request that minor child receive no share in settlement award was inconsistent with their fiduciary obligation to him, especially where the result of disregarding the child's interests was to leave more money to be distributed among other family members including the guardians themselves. Galo v. American Samoa Government, 10 A.S.R.2d 94.

Attorney for guardians ad litem of minor child should have advised guardians of their fiduciary obligation rather than acquiescing in their request to eliminate the child from distribution of settlement award. Galo v. American Samoa Government, 10 A.S.R.2d 94.

Parents' intention to make use of settlement award in a way that would benefit the whole family was insufficient reason to award parents a greater portion of the settlement, and children a lesser portion, than reflected the injuries actually suffered by the various parties. Galo v. American Samoa Government, 10 A.S.R.2d 94.

Court presented with settlement of claims of minor children has the obligation not to approve the proposed settlement unless the children's interests are adequately protected. Moananu v. American Samoa Government (Mem.), 11 A.S.R.2d 100.

Where minor children were the only plaintiffs whose claims against the principal defendant had not been dismissed, their interests were not adequately protected by a settlement in which they were awarded less than their father and guardian ad litem. Moananu v. American Samoa Government (Mem.), 11 A.S.R.2d 100.

Recognition of a cause of action for collateral harm to parent arising out of his minor child's injuries would practically guarantee a conflict of interest in every settlement negotiation arising out of such injuries, since zealous representation of the child's claims would deplete the fund available to compensate the fiduciary. In re Guardianship of Falelua, 13 A.S.R.2d 83.

A guardian is a fiduciary, whose duty to be zealous in the protection of the interests of those to whom the fiduciary duty is owed is at its highest in situations wherein these interests may compete with the personal interests of the fiduciary. Stephens v. Stephens, 30 A.S.R.2d 165.

As a fiduciary, a guardian is charged with unscrupulous unselfishness, and is legally bound to perform his or her fiduciary duties in the best interests of his or her charge. Stephens v. Stephens, 30 A.S.R.2d 165.

§3(5) Rights in Court

SEE CRIMINAL PROCEDURE § 4(10) - JUVENILES

Adoption of child subsequent to natural parent's injury and death does not affect child's right to receive death benefits under workmen's compensation laws, since legal relationship of natural parent and child existed at time of injury and death. Star-Kist Samoa, Inc., v. Workmen's Compensation Commission, 7 A.S.R.2d 149.

Under statute providing that minors shall have one year after the termination of their disability to commence any action, a claim by a minor against the government is not barred so long as action is begun within one year after attainment of majority or appointment of a guardian ad litem, notwithstanding the two-year statute of limitations otherwise applicable to actions against the government. A.S.C.A. §§ 43.0126, 43.1204. Utu v. National Pacific Insurance Co., 9 A.S.R.2d 88.

Court presented with a settlement involving minor children would not approve a fee to an attorney from another jurisdiction who had not applied for admission pro hac vice and whose services, if any, constituted the unauthorized practice of law. Moananu v. American Samoa Government (Mem.), 11 A.S.R.2d 100.

Court presented with a settlement involving minor children would not approve a contingent fee agreement which was said to have been reduced to writing but of which all copies had inexplicably disappeared, but would base the fee award upon quantum meruit. Moananu v. American Samoa Government (Mem.), 11 A.S.R.2d 100.

Widow who signed document conveying house belonging to her late husband had no power to convey the interest of the surviving children of the deceased. Gi v. Temu, 11 A.S.R.2d 137.

Case in which (1) child's injuries were unlikely to have a shattering effect on the parent-child relationship; (2) the parent and guardian ad litem might herself have contributed to the injuries; and (3) the parent/guardian had waived any claim in her personal capacity by submitting a stipulated judgment requesting in effect that the entire settlement be deposited in a trust account for the child, was inappropriate for the recognition of a new cause of action for loss of filial companionship. In re Guardianship of Falelua, 13 A.S.R.2d 83.

The personal representative in a wrongful-death action shall be the named plaintiff, but the action shall be brought on behalf of the surviving spouse, parents, children or other next of kin, as the court may direct. A.S.C.A. § 43.5001(b). Saufo`i v. American Samoa Government, 16 A.S.R.2d 71.

Siblings are ordinarily entitled to recover for wrongful death even though a parent may be living, provided that they can show the requisite injury. Saufo`i v. American Samoa Government, 16 A.S.R.2d 71.

"Minors and insane persons" have one year from the termination of such disability within which to commence an action, regardless of any otherwise-applicable statute of limitations. A.S.C.A. § 43.0126. Afatasi v. Ho Ching, 17 A.S.R.2d 173.

Resulting in an attractive nuisance, the actions and omissions of a school's employees amounted to a serious breach of their duty to take care for the schoolchildren's safety when they left a long-abandoned trailer on the premises and failed to remove an air-conditioning unit or replace its missing support braces. Moors v. American Samoa Gov't, 19 A.S.R.2d 67.

Unlike its quite differently phrased and structured counterpart in the Federal Tort Claims Act, the statute of limitations applicable to American Samoa's Government Tort Liability Act has been held to be subject to tolling during the minority of an injured person. A.S.C.A. § 43.1204. Randall v. American Samoa Gov't, 19 A.S.R.2d 111.

The wrongful death statute did not envision granting relief to every relative who can claim some parental role in the decedent's lifetime while there are surviving parents with compensable loss. Utu v. American Samoa Government, 20 A.S.R.2d 53.

While motorists must be vigilant when encountering children, the fact that an injury occurred does not automatically give rise to strict liability without fault. Estate of Tuilesu v. Asifoa, 20 A.S.R.2d 60.

A suit against police officers for assault, unlawful entry, and wrongful arrest was dismissed when hospital records showed a minor's injuries took place four months after the complaint was filed and when the credible evidence showed that his mother consented to the search of the house and that the minor was brought to the police station by another youth. Sepulona v. Mau, 22 A.S.R.2d 90.

An "equitable," "virtual," or "de facto" adoption for inheritance purposes exists when a decedent performs parental duties towards a child in his household and that child performs filial obligations in return, exactly equivalent to a formally-adopted child. Estate of Fuimaono, 23 A.S.R.2d 33.

Drivers whose conduct might result in injury to a child have a duty to exercise proportional vigilance and caution. Sciascia v. Lutali, 23 A.S.R.2d 38.

Drivers have an overriding duty to pedestrians, especially children, and a duty to refrain from careless driving. A.S.C.A. §§ 22.0406, 22.0701. Sciascia v. Lutali, 23 A.S.R.2d 38.

Pedestrian, a minor, was comparatively negligent in crossing the road into the unavoidable path of a vehicle and in failing to yield the right-of-way to vehicles when crossing at a point other than a crosswalk. A.S.C.A. §§ 22.0401(c)-(d), 43.5101. Sciascia v. Lutali, 23 A.S.R.2d 38.

A damage award to a minor shall be deposited directly into the depositary of the High Court of American Samoa and placed in an interest-bearing account with the minor as beneficiary; disbursements are to be made only on application by the guardian ad litem and with the approval of one of the Justices. Sciascia v. Lutali, 23 A.S.R.2d 38.

Disability under the law ceases when a minor reaches the age of majority or is otherwise earlier emancipated through marriage. A minor is no longer disabled for statute of limitations purposes when a guardian ad litem is named. Pasesa v. Laumatia, 28 A.S.R.2d 37.

The statute of limitations begins to run against a minor when a guardian ad litem is appointed and files suit on the minor's behalf. A.S.C.A. § 43.0120(2). Pasesa v. Laumatia, 28 A.S.R.2d 37.

§ 4 Legitimacy & Inheritance

Although the common law equated illegitimacy with disinheritance and the legitimation of offspring is essentially a statutory development, disinheritance constitutes impermissible discrimination when paternity or maternity is a genuinely-established fact. Estate of Fuimaono, 21 A.S.R.2d 121.

When parents perform their parental duties towards those acknowledged as their children, and those children perform their filial obligations in return, a de facto right of inheritance should be recognized in principle. Estate of Fuimaono, 21 A.S.R.2d 121.

If husband and wife are not cohabitating when a child is conceived, the conclusive presumption that the child is the legitimate child of the marriage is inapplicable. In such cases, a disputable presumption of legitimacy exists, but is overcome where there is a complete lack of any sexual access between the couple at the time of conception. In re a Minor Child, 25 A.S.R.2d 2.

The law of American Samoa may recognize equitable adoption for purposes of inheritance from the individual estate of the equitable adoptive parent. This doctrine may be applied in the absence of proof of a specific contract to adopt. Estate of Fuimaono, 25 A.S.R.2d 110.

Equitable adoption requires a finding that the equitably adopted child has stood from an age of tender years in a position exactly equivalent to a formally adopted child. Estate of Fuimaono, 25 A.S.R.2d 110.

When an individual lives as a member of a family's household, a presumption arises that the services for which compensation is sought were rendered gratuitously. This is true even when persons living in the same household are not related by blood or affinity. Farapo v. Schuster, 26 A.S.R.2d 112.

While mature consenting single adults can pretty much do whatever they want with respect to their relationships, there are some legal drawbacks to consensual cohabitation. Children of consensually cohabitating unions are not legally legitimate until and unless that couple eventually marries. See A.S.C.A § 42.0501. In Re A Minor Child, 29 A.S.R.2d 18.

§ 5 Family Purpose Doctrine

SEE TORTS § 8(2) – FAMILY PURPOSE DOCTRINE

§ 6 Records

Registrar of Vital Statistics has no authority to issue corrected birth certificate under present statute. Utu v. Beebe, 4 A.S.R. 762.

Where a person has exhausted all administrative remedies available to correct birth certificate and where failure to correct certificate would serve to damage to do damage to child named therein, court will invoke equity powers to instruct Registrar of Vital Statistics to issue corrected birth certificate. Utu v. Beebe, 4 A.S.R. 762

Court will deny petition to change name of child to that of deceased husband of mother when child is only eight years old but such dismissal shall be without prejudice to bringing of petition at later time when child is of sufficient age to understand nature of proceedings. In Re Sikalea, 4 A.S.R. 755.

In the absence of statutory abrogation of the common-law right to change one's name, courts should encourage petitions to make a public record of these changes and so abuse their discretion in denying such petitions without any substantial reason. Application of Mamea, 24 A.S.R.2d 66.

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