RIVERS

                                                             Interim Decision #2802




                                 MATTER OF RIVERS

                           In Visa Petition Proceedings
                                      A-22625028
                         Decided by Board June 30, 1980

(1) Unless local law otherwise dictates (i.e. through statutory or case law giving greater
  rights to one parent than to the other), a father's natural right to the custody of a child
  he has lawfully legitimated is equal to the natural right of the mother to the child's
  custody. To the extent that Matter of Harris, 15 I&N Dec- 39 (BIA 1970) and Matter of
  Dela Rosa.

 (BIA 1974) indicated that only the mother had a natural
  right to the custody of a legitimated child, these cases are modified.
(2) The natural father of a child will be presumed to have had legal custody of that child
  at the time of legitimation, in the absence of affirmative evidence indicating otherwise.
(3) Unless there is evidence to show that the father of a legitimated child has been
  deprived of his natural right to custody, he will be presumed to have an equal right to
  custody with the child's mother, and to satisfy the legal custody requirement of
  section 101(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. 1101(b)(1)(C).
(4) Visa petition filed by a lawful permanent resident for a child born out of wedlock but
  legitimated under the law of the Virgin Islands, where the petitioner resides, held
  improperly denied by District Director on ground child was not in the legal custody of
  the father at the time of legitimation, since the father is presumed to share legal
  custody with the mother upon legitimation.
ON BEHALF OF PETITIONER:                        ON BEHALF OF SERVICE
 Wojciech P. Makowski, Esquire                    Janice Podolny
 Legal Services of the Virgin Islands             Acting Appellate Trial
 17 Estate Orange Grove                           Attorney
 Christiansted, St. Croix
 U.S. Virgin Islands 00820
By: Milholl an, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members


  This is an appeal from a decision of the District Director, dated May
14, 1979, dewing a visa petition filed on behalf of the beneficiary as the
petitioner's unmarried daughter under section 203(a)(2) of the Immigration and Nationality Act, 8 U.S.C. 1153(a)(2). Oral argument was
heard before this Board on October 4, 1979. The appeal will be
sustained.
  The petitioner is a 31-year-old native of St. Kitts, and is a lawful
                                               n
Interim Decision #2802
permanent resident of the United States. The beneficiary is an 11-year-old native and citizen of St. Kitts, and was born out of wedlock to the
petitioner and a woman he never married. The instant visa petition
was filed on February 2, 1979. It was denied on the basis of the District
Director's finding that the beneficiary could not qualify as the petitioner's legitimated child under section 101(b)(1)(C) of the Act, 8
U.S.C. 1101(b)(1)(C).
  The beneficiary of a visa petition can qualify as a petitioner's "unmarried daughter" for preference purposes only if the beneficiary
qualifies (or could once have qualified) as a "child" of the petitioner
under section 101(b)(1) of the Act. Section 101(b)(1) includes within the
definition of "child":
  a child legitimated under the law of the child's residence or domicile, or under the law
  of the father's residence or domicile, whether in or outside the United States, if such
  legitimation takes place before the child reaches the age of eighteen years and the
  child is in the legal custody of the legitimating parent or parents at the time of such
  legitimation. (section 101(b)(1)(C))..
In the present case, the District Director did not dispute, and at oral
argument the Immigration and Naturalization Service conceded, that
the beneficiary had been legitimated under the law of the Virgin
Islands, where the petitioner resides. Transcript at 13. However, the
District Director determined that the beneficiary could not qualify as
the petitioner's child under 101(b)(1)(C) because the legal custody
requirement of that section had not been satisfied. He relied for that
finding on this Board's prior decisions in Matter of Harris, 

 (BIA 1970) and Matter of Dela Rosa, 

 (BIA 1974).
   Iri Dela Rosa and Harris, we strictly interpreted the legal custody
requirement of section 101 (h)(1)(C), holding that legal custody would
vest only "by virtue of either a natural right or a court decree." We
further stated in those cases, the general rule that the mother of an
illegitimate child has the primary right to the custody of that child.
Based upon this we found that the fathers in the two cases had not met
the legal custody requirement. Strong dissents by two Board members
were registered in both of these cases. After careful consideration, we
have determined that the legal custody rule set forth in Dela Rosa and
Harris requires modification.
  While it is true that the mother of an illegitimate child is presumed
to have custody of that child, the same is not true where the child has
been legitimated. Cases construing the prior California law regarding
legitimation (Section 230 of the California Civil Code) hold that once
the natural father has legitimated. his child, the child's
 status becomes that of the legitimate child of both of its natural parents, and
 the ... rights of the child and of the, parents thenceforth are the same as they would be
 had the child been born of the marriage of its natural parents ... neither of such

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  parents has a superior right to [the child's] custody...
In Re Navarro, 

,

 (Dist. Ct. Ap.
Cal. 1946). See also In Re Richard, 

, 

(1975); Donnally v. Blackenstein, 

, 

(Dist. Ct. Ap. Cal. 1959).1 The petitioner's attorney at oral argument
contended that it is also true in the Virgin Islands that each parent of a
legitimated child had equal rights in and obligations to the child. In
support of this contention, counsel has submitted on appeal the unpublished decision of a Virgin Islands judge in a child custody case. The
judge makes clear in his decision that "as between the mother and
father" of a child born out of wedlock, each has an equal right to
custody.' We agree with the reasoning expressed in the cited cases, and
we therefore hold that where a child born out of wedlock has been
properly legitimated, neither parent will be presumed to have a
greater right than the other to the legal custody of that child.
   As previously stated, Dela Rosa, supra, and Harris, supra,require
either a court order or some "natural right" of custody to exist before a
finding can be made that a father has "legal custody" for purposes of
section 101(b)(1)(C). We have determined that our prior view of
"natural right" was too restrictive in that it recognized only a mother's
natural right in a child. We now hold that unless the local law
otherwise dictates (i.e. through statutory or case law giving greater
rights to one parent than to the other), the father's "natural right" to
the custody of a child he has legitimated is equal to the "natural right"
of the mother to the child's custody. To the extent that Dela Rosa,
supra, and Harris, supra, indicated otherwise, they are hereby modified. By legitimating his child, the father has evinced his concern for
and interest in his natural offspring. At that point, we can see no
reason why the mother should have a greater right to the child than
the father. The paramount consideration should then be, as always, the
best interest of the child. See Dcmnally, supra. It is not for us, or for the
   ' The citation of cases construing section 230 of the California Civil Code is appropriate in this ease, as section 230 is identical to Title 16, section 462 of the Virgin Islands
Code. Both statutes provide:
      The father of an illegitimate child, by publicly acknowledging it as his own, receiving it as such, with the consent of his wife, if he is married, into his family, and
      otherwise treating it as if it were a legitimate child, thereby adopts it as such; and
      such child is thereupon deemed for all purposes legitimate from the time of its birth.
We note that in 1975 section 230 was replaced by the Uniform Parentage Act in
California.
  * Counsel could cite no published eases on this point, and WP have searched the Virgin
Islands law, and have found nothing published on the issue. For cases from other
jurisdictions following the California legal custody rule, see e.g. In re Sution,

, 

 (1949); Allisonv. Bryan„ 

, 97P. 282 (1908). See also 10 Am. Jur.
3d &slat cls § 66; 10 C.J.S. Bastards, § 14, 17c
Interim Decision #2802

Immigration and Naturalization Service, to say what that is. The
determination of whether, for example, such a child would be better off
in the United States or in his native country, is to be made by the
child's natural parents, or if necessary by a probate court, not by
immigration officials.
   We do not by our decision in this case write the legal custody
requirement out of the statute. What we do is change the presumption:
rather than require affirmative evidence that the mother of a legitimated child has been deprived of custody, we will presume that the
father has not been divested of his natural right to equal custody in the
absence of affirmative evidence indicating otherwise. We believe that
this interpretation of the legal custody requirement will give better
effect to Congress' humane and remedial intent in including a legitimated child within the definition of child. See generally Matter of
K—W—S—, 

 (BIA 1958,1961; A.G. 1961).
   The primary purpose behind the legitimation requirements of section 101(b)(1)(C) is to prevent the circumvention of the immigration
laws. We do not see how today's ruling will in any way promote or
encourage fraud. The requirement that the child be legitimated under
the applicable law remains in full force. By taking , the steps necessary
to legitimate his child, prior to a time when any immigration benefit
was sought, the beneficiary's natural father has shown the existence of
a genuine parental relationship to his daughter. This is not a situation
where there has been an ad hoc legitimation of a child solely to secure
immigration benefits. Moreover, where there has been ad hoc legitimation in order to circumvent the immigration laws, a visa petition could
still be properly denied. This situation would generally occur when the -
rights of other parties, such as adoptive parents, stepparents, or a
natural mother who has been awarded custody, have intervened. Such
is not the situation here, or in the majority of cases.
   Under our prior interpretation of legal custody, it was difficult for a
father who had gone to the trouble of legitimating his child, and who
undoubtedly was the child's natural father, to qualify as the child's
father under the immigration laws. Previously, if a father, as in this
case, legitimated his child at an early age, but long before seeking
immigration benefits through or on behalf of that child, he would be
likely to find himself unable to satisfy the legal custody requirement
when he later sought an immigration benefit. In a rare case, the
mother may have abandoned the child, or otherwise relinquished all
custody. (See e.g. Matter of Buenaventura,

 (BIA 1977)).
In the usual case, however, this would not have occurred, and the
father would find that it was simply too late to satisfy the requirements of 101(b)(1)(C), as he had long ago legitimated the child but had
not at that time had legal custody under Dela Rosa, supra, and Harris,
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supra, perhaps only because he did not then know of that requirement,
 and of our strict interpretation of it. We believe that Congress, whose
 overriding purpose has been to encourage family unity, would prefer a
 rule that does not make legitimation under the immigration laws so
burdensome.
   Under Dela Rosa, supra, and Harris, supra, legal custody for purposes of section 101(b)(1)(C) required, in effect, actual physical custody
of a child, and custody to the exclusion of everyone else, including the
child's mother. Yet we have not had such a restrictive definition of
legal custody under section 101(b)(1)(E), which defines adopted children. The cases have been clear that a parent may have legal custody of
an adopted child while not residing with that child, and where in fact
the parent and child may be thousands of miles apart. See Matter of
Cho,

 (BIA 1977); Matter ofM—, 8 MN Dec. 118 (BIA
1958; A.G. 1959). Moreover, in light of our holding that the natural
parents of a child who has been legitimated have equal rights to the
custody of that child, the exclusive custody aspect of our prior holdings
is inappropriate.
   In sum, today's decision recognizes the natural rights of a legitimated child's father. We are not saying that the father's rights are
now paramount, only that his rights together with the equal rights of
the mother are paramount to the rights of any other party. Under our
decision today, a father of an illegitimate child will no longer have to
know in advance of section 101(b)(1)(C)'s legal custody requirement in
order to satisfy that requirement. Unless there is evidence to show
that the father of a legitimated child has been deprived of his natural
right to custody, he will be presumed to share custody with the mother,
and to satisfy the legal custody requirement of section 101(b)(1)(C).
   In the present case, the petitioner has indisputably legitimated the
beneficiary under the applicable law, and there is nothing whatsoever
to indicate that his natural right to custody has vested in someone else.
He therefore qualifies as the father of the beneficiary for immigration
purposes. His appeal will accordingly be sustained, and the visa petition will be approved_
   ORDER, The appeal is sustained, and the visa petition is approved.