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Kaliski v. District Director

Facts

Vasa Kaliski was born in Yugoslavia in 1908. Between 1932 and 1941, he lived with but never married Magdelena Rotsenk because she was Catholic and he was Greek Orthodox. In 1934, Magdelena gave birth to their son Milivoj who lived with them until 1941. In that year, while serving in the Yugoslav army, Kaliski was taken prisoner by the Germans and was interned in a prisoner-of-war camp in Germany until his release in 1945. He lived in resettlement camps in Germany until 1951 when he emigrated to the United States. He established domicile in California in 1953 and became a citizen in 1971. On January 3, 1973, Kaliski filed a petition with INS to obtain a preferential immigrant visa for his son who still lives in Yugoslavia. INS and the Board rejected the petition because Milivoj was not legitimated under Yugoslav law before his eighteenth birthday.

Vasa Kaliski was born in Yugoslavia in 1908. Between 1932 and 1941, he lived with but never married Magdelena Rotsenk because she was Catholic and he was Greek Orthodox. In 1934, Magdelena gave birth to their son Milivoj who lived with them until 1941. In that year, while serving in the Yugoslav army, Kaliski was taken prisoner by the Germans and was interned in a prisoner-of-war camp in Germany until his release in 1945. He lived in resettlement camps in Germany until 1951 when he emigrated to the United States. He established domicile in California in 1953 and became a citizen in 1971. On January 3, 1973, Kaliski filed a petition with INS to obtain a preferential immigrant visa for his son who still lives in Yugoslavia. INS and the Board rejected the petition because Milivoj was not legitimated under Yugoslav law before his eighteenth birthday.

Issue

There are three issues presented here: (1) Was California law applicable in this case when neither Kaliski nor his son had any contact with California before the son's eighteenth birthday? (2) Was Kaliski's son legitimated under California law before his eighteenth birthday, as required by section 1101(b)(1)(C)? (3) Must the case be remanded to INS for further findings of fact?

There are three issues presented here: (1) Was California law applicable in this case when neither Kaliski nor his son had any contact with California before the son's eighteenth birthday? (2) Was Kaliski's son legitimated under California law before his eighteenth birthday, as required by section 1101(b)(1)(C)? (3) Must the case be remanded to INS for further findings of fact?

Rule

Under section 230 of the California Civil Code, the father of an illegitimate child may legitimate the child by receiving the child into his family and acknowledging the child as his own. The California Supreme Court, in In re Lund's Estate, held that an illegitimate child was legitimated by the father under section 230 even if the legitimating acts occurred before either the father or the son had any contact with California, as long as the father later established his domicile in California.

Under section 230 of the California Civil Code, the father of an illegitimate child may legitimate the child by receiving the child into his family and acknowledging the child as his own. The California Supreme Court, in In re Lund's Estate, held that an illegitimate child was legitimated by the father under section 230 even if the legitimating acts occurred before either the father or the son had any contact with California, as long as the father later established his domicile in California.

Analysis

The district court held that Kaliski legitimated Milivoj under California law by raising him during the first seven years of his life. California law was held to be applicable because Kaliski later established his domicile in California. INS contends that California law should not be applied here because neither the father nor the son had any contact with the state before the son's eighteenth birthday and the legitimating acts did not occur in California. However, the court found that under 8 U.S.C. 1101(b)(1)(C), an immigrant qualifies as a 'child' by being legitimated under the law of the father's domicile, and both required events occurred in this case.

The district court held that Kaliski legitimated Milivoj under California law by raising him during the first seven years of his life. California law was held to be applicable because Kaliski later established his domicile in California. INS contends that California law should not be applied here because neither the father nor the son had any contact with the state before the son's eighteenth birthday and the legitimating acts did not occur in California. However, the court found that under 8 U.S.C. 1101(b)(1)(C), an immigrant qualifies as a 'child' by being legitimated under the law of the father's domicile, and both required events occurred in this case.

Conclusion

The district court correctly ruled that California law was applicable and that Milivoj was legitimated under the law of California before his eighteenth birthday. The judgment of the district court is AFFIRMED.

The district court correctly ruled that California law was applicable and that Milivoj was legitimated under the law of California before his eighteenth birthday. The judgment of the district court is AFFIRMED.

Who won?

Kaliski prevailed in the case because the court found that he had legitimated his son under California law, which was applicable despite the lack of prior contact with the state.

Kaliski prevailed in the case because the court found that he had legitimated his son under California law, which was applicable despite the lack of prior contact with the state.

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