By Judge Celia G. Gamrath
Cook County Circuit Court
Adoption is a statutory doctrine that creates legal status among children and parents. However, even without a formal adoption, parents and children haveattempted to gain rights or impose responsibilities when their affiliation has simulated a parent-child relationship.
In limited circumstances, courts in other states have treated a child as a legally adopted child under the theory of equitable adoption. No Illinois court has expressly utilized this theory and, in fact, the 1st District Appellate Court has rejected equitable adoption in child custody proceedings. However, a recent 3rd District Appellate Court case has opened the door by allowing a child to pursue a cause of action for equitable adoption in the context of a will contest.
Equitable adoption, like formal adoption, requires consideration and the existence of an oral or written contract to adopt. The contract remains executory and stops short of a final, formal adoption. While a written instrument is the best evidence of a contract to adopt, the contract can be oral or implied from acts, conduct and admissions. Whether a contract exists is a question of fact. Circumstances that tend to show the existence of an equitable adoption include the benefits of love and affection to the adoptive parent, the performance of services by the child, the relinquishment of ties by the natural parent, a failed adoption proceeding, the child's reliance upon his adoptive status, the raising of the child from tender years and the public representation that the child is a natural or adopted child.
Recently, in In re Marriage of Mancine, 2012 Ill.App. 11138 (1st D. 2012), the appellate court affirmed the dismissal of a husband's petition for custody of a 3-year-old child whom the wife adopted two months before the marriage. The evidence showed that even though the parties intended for the husband to adopt the child after the marriage, the father never did. While he changed diapers, fed the child and cared for the child during the marriage, he never filed a petition to adopt the child.
In the divorce proceedings, the father sought custody of the child. His petition was dismissed because he lacked standing under Section 601(b)(2) of the Illinois Marriage and Dissolution of Marriage Act (IMDMA). The father asked the court to apply the equitable adoption theory and ignore that he never filed a petition to adopt nor formally adopted the child.
The court rejected his argument, stating that equitable adoption "is not recognized in the context of custody proceedings in Illinois." The court drew a distinction between child custody cases and intestate succession cases and held that "intent to adopt and behaving as a parent do not give rise to the legal status of a statutory adoption under Illinois law."
One month after Mancine , the 3rd District Appellate Court addressed the equitable adoption theory in the context of a will contest case filed by an equitably adopted child. In In re Marriage of DeHart, 2012 Ill.App. 090773 (3rd D. 2012), there was evidence that the decedent, Donald, acknowledged the plaintiff, James, as his son for nearly 60 years and told James he was legally adopted when he was 2 years old. In 2005, at age 84, Donald married Blanca and executed a will leaving his property to Blanca and stating in his will that he had no children. When Donald died in 2007, James challenged the will and sought a portion of Donald's estate under multiple theories, including equitable adoption. The trial court dismissed James' complaint.
The appellate court reversed, stating that while no Illinois court has expressly recognized the theory of equitable adoption, none has expressly rejected it either. The court found that James alleged facts, which would support a conclusion that Donald entered into a contract to adopt James and continued to acknowledge James as his son. The court reversed the dismissal of James' complaint, holding that James stated a cause of action for equitable adoption which, if proven, would entitle him to share in his father's estate. The court reasoned: "Given that Donald had acted as if he had, in fact, adopted James, equity would prevent Donald and his estate from taking a contrary position."
While there is a lack of uniformity in the application of the equitable adoption doctrine, courts across the country seem much more willing to apply the doctrine when it is for the child's benefit rather than for the benefit of the adoptive parent or another relative. This seems reasonable, since equitable adoption was created originally to protect the interests of children who were supposed to have been adopted, but never were.
As gleamed from DeHart, Illinois appears ready to invoke the doctrine of equitable adoption to allow an equitably adopted child to challenge a parent's will and take under the laws of intestacy. However, Illinois is not yet prepared to apply the theory in child custody proceedings. Rather, a statutory exception would have to be created to give equal standing to an equitable parent seeking custody of a child. Presently, under Section 602(b)(2) of the IMDMA, an equitable parent may seek custody only when a child is not in the physical custody of his legally adoptive or biological parent or parents.