KOSRAE STATE COURT
FEDERATED STATES OF MICRONESIA
Cite as Mongkeya v. Tolena & Totiana, (Kosrae 1995)

[Kos.St.pg 01]

KANAKO MONGKEYA, ON
behalf of herself and her
daughter Eunolina Mongkeya
 Petitioner

vs,

MILES TOLENOA AND
TOTIANA MILES,
Respondents.

CIVLIL CASE NO. 17-95

WRIT OF HABEAS CORPUS


     This is an action originally petition this Court to issue a writ of habeas corpus, commanding respondents herein to produce Eunolina Mongkeya before this Court at a time and place specified therein.

FACTS

     1. Petitioner Kanako Mongkeya gave birth to Eunolina Mongkeya on October 31, 1993 at the Kosrae State Hospital while petitioner was living with the respondents.

     2. In March of 1994 petitioner moved out from the residence of the respondets with her daughter subject child to her adoptive mother's (Biolla Mongkeya) residence.

     3. After learning that petitioner left with the minor to Biolla's residence, Arlinda C. Tolenoa went to Biolla's home and seized the minor child against the will of the petitioner and took the child away.

[Kos. St. pg 02]

     4. The minor child was born out of wedlock, however, the father of the mi,or is believed to be the brother of Arlinda C. Tolenoa.

     5. In June of 1994, the petitioner met the subject minor child at Tafunsak Municipal Office and took her home.
     6. In the same evening the respondents went to petitioner's residence and seized the minor child.

     7. Since June of 1994, the subject minor child has been with the respondents.

     8. At one time in 1995 respondent Totiana left for Guam with the minor subject child to be reunited with respondent Miles Tolenoa.

     9. Petitioner has testified that she is capable of taking care of or raising minor child since she has experience in raising her other minor child.

     10. The subject minor child has returned from Guam and was present at the hearing.

     11. The interests of the minor subject child was hotly contested at the hearing.

     12. There has been no decree confirming customary adoption by the respondents.

DISCUSSION

     Under Kosrae law, writs of habeas corpus are governed by Chapter 34 of Title 6 of the Kosrae Code. May 19, 1995 was the first time the respondents through their counsel filed an answer to the complaint.

     Under KC Section 6.3105, it provides in part, that:

     If an adoption has occurred in accordance with tradition and its validity is in       question or dispute, an interested party may

[Kos. St. pg 03]

         file a petition under oath in the Court for a decree confirming the ...adoption.


This appears to be the case at hand. The natural mother, with her minor subject child lived at respondents' residence after birth and upon leaving the respondents' residence with the minor subject child, the respondents went Pnd seized the minor subject child without the consent of the natural mother There has been no adoption case on the subject minor child in our court by these respondents to determine her adoption status. There being no confirmation of adoption yet on the minor subject child, the validity of such is in dispute.

CONCLUSION

     It is sufficiently clear that Eunolina has not been legally or customarily adopted by the respondents. And since petitioner is the natural mother of Eunolina Mongkeya, the natural father abondoned the minor subject child and forfeited his rights to the child's custody, and that petitioner is not unfit to provide parental care for said child, petitioner's right to the custody of Eunolina Mongkeya is superior.


     The court hereby issue its writ of habeas corpus, commanding the two respondents to return Eunolina Mongkyea to petitioner Kanako Mongkeya no later than 4:30, June 16, 1995.

     SO ORDERED the 13 th day of June, 1995.

                                        /s/
                                   ________________
                                   Lyndon L. Cornelius
                                   Chief justice
     Entered this I3th day of June, 1995.

                                        /s/     
                                   ________________________
                                   Chief Clerk of Court, Kosrae

                                                                                                                                                                                                                                                                                                           
limit in the area in which he is traveling by more than ten miles per hour; PROVIDED FURTHER that there shall be no maximum speed limit for police officers in the immediate pursuit of suspected violators of the law.

(2) This section shall not operate to relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the roadway.

Source: S.L. No. 2L-132-82 702, 7/9/82

 

71 PC 5-103. Use of emergency warning devices. Authorized emergency vehicles shall not utilize any emergency warning equipment except when responding to an emergency. The pursuit of actual or suspected violators of the law by police shall be considered an emergency. When responding to an emergency, the driver of an emergency vehicle shall utilize emergency warning devices when necessary to warn pedestrians and other drivers of his approach.

Source: S.L. No. 2L-132-82 703, 7/9/82

 

71 PC 5-104. Duties owed emergency vehicles.

(1) When an emergency vehicle using warning equipment is proceeding on an emergency call, all traffic shall immediately pull to the right side of the road if possible, clear intersections, and stop until all emergency vehicles have passed.

(2) No motor vehicle, except an authorized emergency vehicle or a vehicle of duly authorized members of the police or fire department, shall follow within 300 feet of any emergency vehicle that is responding to an emergency call.

Source: S.L. No. 2L-132-82 704, 7/9/82

 

71 PC 5-105. Prohibition of emergency warning equipment on unauthorized vehicles.