INTRODUCTION
Adoption is generally the process by which, a child born to another person is taken by another to be taken care of. The person who adopts the other child has intended the child as their child. The act of adoption provides loving homes to those who need it. The person adopted is generally abandoned, orphaned, or surrendered. Adoption is generally by statutes and every jurisdiction has laws on adoption. These laws create an obligation that needs to be complied with for the pursuance or completion of the adoption process. Adoption is generally a legal process persistent to which that results in the creation of a parent-child relationship.
Procedures involved in adoption are exhaustive and have become more extensive. People started to have many differing views on formal adoption as to its acceptability within the culture which led to the formation of the “Doctrine of Equitable Adoption”. This doctrine protects children who have been adopted but are not in compliance with law or statutory requirements. The doctrine’s main function is towards the right to inheritance for any child adopted this way and not towards the legal treatment of a child this way.
When the biological parents can no longer take care of their children[1], they approach their family and friends to care for their children. These children become part of the family who took care of them. Temporary placements become permanent. Adoption is purely statutory and Massachusetts was the first to recognize an adoption statute in 1851[2]. It was authorized by Great Britain in after 1926.
Equitable adoption is also termed Adoption by Estoppel. This is a remedy created by the law, that applies to a child who was never formally adopted by his or her adoptive parents. It is an equitable remedy that applies to people ‘who were supposed to have adopted as a child’ legally. These children were not adopted because of the failure of the adoptive parents to comply with the formal steps necessary for adoption[3]. Equitable adoption is a theory that arose to protect the interest and well-being of the child under contract to adopt.
Equitable adoption can also be known as “Virtual adoption”, or “de facto adoption. The doctrine is a principle where a legally competent individual to adopt a child enters into a contract. The contract derives its support from part performance of the obligation to care for the children. This is not done by the regulation of law or statute. In such situations, the court applies equitable principles and recognizes them as legally adopted children for limited purposes[4].
POSITION OF CHILD ADOPTED LEGALLY AND EQUITABLY
The child when adopted legally, has uncertain rights. It being purely statutory the state imposes compelling interest and has been imposed to find stable and loving homes for adoptive children[5]. The interest of the adopted child serves to be the best consideration of the courts in adoption proceedings and the statutes are designated to ensure certainty and to ensure the prevention of adoption by unsuitable persons.
When a child gets adopted, his or her relationship with the original parents gets terminated. The adoptive parents are considered to be the natural parents in all aspects. This includes the acquisition of the status of the legal heir of the adoptive parents. He or she would have been of the same status as that of a biological child in matters of intestate succession. This doctrine isn’t a supplement to the formal adoption and also doesn’t entitle the status of a legally adopted child to these children[6].
The main function of this doctrine is to allow the adopted child to inherit from the parents’ intestate property. It is expected to fill the legal vacuum between virtual adoption and legal adoption in matters particularly concerning intestate succession. But this doctrine remains narrowly tailored.
There exist two theories concerning this issue, the theory of contract, where the court’s basis to consider the adoption is that there has been a contract between the adopted parents and the biological parents. The second theory is the theory of estoppel, where equity stops the adoptive parents from denying the fact that they have adopted the child which would turn unjust to the adopted child. The parents who have received the privileges[7] from the child’s existence within them are barred from stopping the adoption.
ELEMENTS TO PROVE EQUITABLE ADOPTION
The elements to prove the existence of virtual adoption as held in Poole v Burnett (In Re Heirs of Hedge)[8]are;
- the agreement between the natural and the adoptive parents[9];
- performance by the natural parents of the child in giving up custody[10]:
- performance by the child by living in the home of the adoptive parents[11];
- partial performance of the foster parents in taking the child into the home and treating the child as their[12];
- intestacy of the foster parents[13].
INEQUITIES OF THE EQUITABLE DOCTRINE
The doctrine applies only in cases where the parents died intestate. The adoptive children are allowed to inherit from their adopted parents but this would not be the same as the legally adopted would have been entitled to as in the case of collateral kin[14]. It is a doctrine grounded in probate law, although attempts have been made to make it available to other legal situations. For example, in cases of child custody, many courts refused to extend this doctrine while in some other cases, this has been extended.
It has been further applied to social security benefits, claims for worker’s compensation, wrongful death actions, and in cases where the adopted are adults or stepchildren[15]. In the case of Johnson v Johnson[16], virtual adoption is imposed on child support obligations. The child is the core of the proceedings and the court will aim at fulfilling the interests of the child. It ensures that their decisions reflect the well-being of the child under question. The court didn’t refuse this doctrine to probate law.
ENOUGH IS NOT ENOUGH
All five elements should be proved beyond the doubt of law to establish the adoption. If any of the elements are not proved entirely, the doctrine fails. In the case of Urick v McFarland[17], there existed a parent-child relationship, the absence of an agreement to adopt led to dissatisfaction with the elements of the virtual adoption, and the claim under this doctrine was rejected. Proving the existence of the agreement by the child is the main problem persisting in many of these cases.
The doctrine is directed toward only probate law mainly towards intestate succession. In certain cases, the adoption virtually has been a result of the divergence which is due to cultural variations that necessitate adoption[18].
NEED FOR LEGISLATION
These elements to be proved are uncertain. And the decisions of the court vary according to the facts and circumstances of the case and certain cases contradict one another. There exists no solid foundation and the views of the courts to not accept it, as it is not in compliance with the law, poses a problem for its application. Due to the existence of such inconsistencies, the adoption of legislation saves better.
SUGGESTIONS
The legislation in equitable adoption eradicates its non-acceptability between different jurisdictions. Any legislation formed should include certain elements such as,
- The primary mutual agreement between the adoptive parent and the biological parent to care for the child as their own, although proving it turns out to be difficult, it is necessary for the prevention of misuse of the doctrine with specific yardsticks to measure the conformability.
- The conduct of the adoptive parents should reflect their pure intention to care for their adopted child as their child.
- It should not be persistent for the fact of establishing it to the regulatory or monitoring bodies but should exist for certain years.
- The claim of equitable adoption should be brought before the court of law within the specified period.
- This should lead to the creation of a legal parent-child relationship although it is an equity principle to a certain extent.
The formulation is not to make the adoption legal but to recognize the doctrine as legal, as there are uncertainties stuck to it.
CONCLUSION
There has been considerable progress in the doctrine but there are still ambiguities and inconsistencies, with regards to its application. As it was to protect the welfare of the child, the child is allowed to inherit in intestate proceedings. There have been continuous claims to extend it to other areas of consideration also. Although the recognition of an act not in compliance with the statute seems to be unlawful. Since the object is true, the path being to protect the child’s interest, the Doctrine can be applied thereto.
Author(s) Name: Magizhini M (The Tamilnadu Dr. Ambedkar Law University, School Of Excellence in Law)
Reference(s):
[1]Michael J. Higdon, ‘When Informal Adoption Meets Intestate Succession: The Cultural Myopia of the Equitable Adoption Doctrine’ (2008) 43(223) Wake Forest Lake Review <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1009981> accessed 15 January 2024
[2]John Francis Brosnan, ‘The Law of Adoption’ (1992) 22(4) Columbia Law Review <https://www.jstor.org/stable/1111303> accessed on 15 January 2024
[3] Ibid
[4]Raymond C. McGarvey, Jr. v State of Maryland 533 A.2d 690 (Md. 1987)
[5] The 2023 Florida Statutes (including Special Session C), s 63.022(1)(a)
[6]Grant v. Sedco Corporation, 364 So. 2d 774 (Fla. Dist. Ct. App. 1978)
[7]James C. Mordy, ‘Adoption: Right of Inheritance in Absence of Legal Adoption: Specific Performance of Contract to Adopt and Other Remedies’ (1949) 47(7) Michigan Law Review <https://www.jstor.org/stable/1284379> accessed on 15 January 2024
[8]470, So. 2d 740 (Fla. 5th Dist. Ct. App. 1985)
[9]Michael J. Higdon, ‘When Informal Adoption Meets Intestate Succession: The Cultural Myopia of the Equitable Adoption Doctrine’ (2008) 43(223) Wake Forest Lake Review
[10] Ibid
[11] Ibid
[12] Ibid
[13] Ibid
[14]Holt v Burlington Northern Railway Company 685 S.W.2d 851 (Mo. Ct. App. 1985)
[15]James C. Mordy, ‘Adoption: Right of Inheritance in Absence of Legal Adoption: Specific Performance of Contract to Adopt and Other Remedies’ (1949) 47(7) Michigan Law Review <https://www.jstor.org/stable/1284379> accessed on 15 January 2024
[16]Johnson v. Johnson, 2002 ND 151, 652 N.W.2d 315
[17] 625 So. 2d 1253 (Fla. Dist. Ct. App. 1993)
[18]Calista Corp. v. Mann, 564 P.2d 53 (Alaska 1977)
