Virtual Adoption: Contractual Estoppel of Parental Rights and Responsibilities
John Doe and Michelle Mother divorced in 1980, when their daughter, Dana Daughter, was 10 months old. For the next seven years, Michelle Mother and Dana Daughter moved several times; as a result, John Doe’s visitation with Dana was sporadic. Although John Doe continued to pay child support, Michelle Mother increasingly obstructed John’s visitation with Dana Daughter, and asked him to communicate with her only by letter. On several occasions, John Doe attempted mediation with Michelle Mother in order to gain reasonable visitation with Dana Daughter. However, John Doe’s efforts proved futile.
Finally, Michelle Mother, who had remarried, asked John Doe to permit her new husband, Peter Putative, to adopt Dana Daughter. In her letter to John Doe, Michelle Mother’s attorney emphasized that if John Doe consented to the adoption proceedings, then his support obligation would automatically cease. In 1989, John Doe signed the consent to adopt agreement.
For six years, John Doe and Michelle Mother did not communicate. During that period, John Doe happily remarried and hoped to start a new family. In contrast, Michelle Mother’s family life disintegrated. In 1991, Peter Putative told the family court that he no longer wanted to adopt Dana Daughter, and as a consequence, the court dismissed the petition for adoption. Michelle Mother ultimately divorced her second husband.
In 1995, Michelle Mother contacted John Doe and invited him to visit with Dana Daughter. John Doe explained to Michelle Mother that he had remarried, and declined. In 1996, Michelle Mother filed suit against John Doe, demanding seven years’ back child support. For the first time, John realized that the adoption proceedings were never finalized. Although this scenario sounds extreme, cases involving similar fact patterns typically land on the desks of family law practitioners. Despite the frequency with which this occurs, Florida courts have not directly addressed the issue.
Early Example of Virtual Adoption in Child Custody
In U.S. v. Sauvage, 91 F. 490 (W.D. Pa. 1899), the vice consul to the King of Belgium, pursuant to treaty, brought a writ of habeas corpus action in federal court on behalf of Belgian citizens Jacques de Koster and Louise Lemaire. The writ demanded that American citizens Agathon Sauvage and Maria Lemaire produce the body of Valery Gestav de Koster, the biological child of Jacques and Louise. In 1890, Louise Lemaire bore Valery out-of-wedlock in a maternity hospital in Brussels. Nine days later, Louise, who wished to keep the birth secret, turned Valery over to her sister, Maria. Although Jacques and Louise married two years later, when Maria informed Louise that she and her husband were moving to America, Louise begged her to bring Valery with them. The court found that the Sauvages raised Valery as their own child, and that Valery “knows no other mother than Maria Sauvage, and prefers to remain with them.” Accordingly, it held:
In this case the mother voluntarily gave the custody of her newborn child to her sister. It was not a surrender to a stranger, but to one, who by blood, kindred, and her own childlessness, would gladly welcome it with a store of existing affection. The child remained with the sister for two years, through the trying early years of infancy; and, when the sister came to America, the mother begged it should accompany her. For several years thereafter she made no effort to reclaim it. During all these years not one penny was contributed toward its care. These facts are convincing of a purpose on the part of the child’s mother to surrender the child to its aunt, and of her consent to its virtual adoption by her.2
This case demonstrates the long-standing acceptance of virtual adoption in the child support/custody context. Further analysis of John Doe’s case in light of more recent precedent illustrates that doctrine’s continuing importance.
Specific Enforcement
in Probate
Florida’s leading case accepting the doctrine of virtual adoption is Sheffield v. Barry, 14 So. 2d 417 (Fla. 1943). In Sheffield, the plaintiff, Cora Wittstock Barry’s biological mother, executed an adoption contract with Mrs. Wittstock when Cora was three months old. The Wittstocks raised Cora as their own, and held her out to the community as if she were actually their daughter. Throughout the remainder of her adoptive parents’ lives, Cora believed that she was the Wittstocks’ legal daughter. However, upon the Wittstocks’ deaths, Cora discovered that they never satisfied the requirements of the Florida adoption statutes; as a result, the Wittstocks never legally adopted her. Since the Wittstocks died without a will, Cora had no legal inheritance rights under Florida law because she was neither the biological offspring nor the legally adopted child of the Wittstocks.
Powerless to institute a legal adoption at that late time, the court distinguished between “an action for specific performance to enforce the original contract thus placing the plaintiff in a position to profit from an intestate estate and specific performance to declare adoption effectual because legal proceedings to that end should have been instituted.”3 Consequently, it exercised its equitable jurisdiction to hold that the Wittstocks virtually adopted Cora Barry.
Florida virtual adoption cases involve survivorship rights where the adoptive parents failed to satisfy the statutory requirements of a legal adoption. In order to establish virtual adoption, Florida law demands the proof of five elements: 1) an agreement between the biological and adoptive parents; 2) performance by the biological parents in giving up custody; 3) performance by the child in living with the home of the adoptive parents; 4) partial performance by the adoptive parents in taking the child into their home and treating the child as their own; and 5) intestacy of the adoptive parents.4
Since virtual adoption is premised on specific performance of a contract, these five elements limit this doctrine’s application to the estate of deceased adoptive parents. Hence, virtual adoption is insufficient to establish a legal claim for wrongful death5 or workers’ compensation benefits.6 Thus, as in Sheffield, the virtually adopted person cannot specifically enforce the contract to adopt; his or her remedies are confined to “specific enforcement of the benefits that would accrue from such adoption.”7
Additionally, courts require proof of an actual agreement to adopt; as a consequence, virtual adoption cannot arise by implication.8 Some jurisdictions outside of Florida demand proof of an agreement to adopt by a clear and convincing standard.9 The policy behind this actual agreement element is that “if this rule is relaxed, then couples, childless or not, will be reluctant to take into their homes orphan children, and for the welfare of such children, as well as for other reasons, the rule should be kept and observed.”10 However, Florida courts are pragmatic and understand that “these elements may have to be established by circumstantial evidence for often all parties but the child are deceased.”11
Child Care and Custody — Doctrinal Support
There is ample support for the proposition that where two parents virtually adopt a child, both are responsible for child support in the event of divorce. In California, virtual adoption is established law in this context. In Clevenger v. Clevenger, 189 Cal. App. 2d 658, 11 Cal. Rptr. 707 (Cal. Ct. App. 1961), the wife, Mrs. Clevenger, became pregnant while her husband was away in the service, and it was undisputed that Mr. Clevenger was not her son’s biological father. Despite these facts, Mr. Clevenger accepted the child and raised him as his own son. However, Mr. Clevenger never legally adopted, nor agreed to adopt the child. Eleven years later, when Mrs. Clevenger filed for divorce and child support, Mr. Clevenger argued that he had no duty to support the child because he was not the child’s legal or biological father. In searching for a theory to uphold the lower court’s decision to award child support, the court expounded:
There is an innate immorality in the conduct of an adult who for over a decade accepts and proclaims a child as his own, but then, in order to be relieved of the child’s support, announces, and relies upon, his bastardy. This is a cruel weapon, which works a lasting injury to the child and can bring in its aftermath social harm. The weapon should garner no profit to the wielder; the putative father should earn no premium by the assertion of the illegitimacy of the child. If any legal hypothesis can prevent such an inducement to publication of illegitimacy, we should adopt that theory.12
Based on both promissory and equitable estoppel grounds, the court accepted virtual adoption as that theory. However, since the evidence adduced at trial failed to demonstrate the probability of an express agreement to adopt, the court held it inapplicable in that case.
Conversely, in the case of In Re Marriage of Valle, 53 Cal. App. 2d 837, 126 Cal. Rptr. 38 (Cal. Ct. App. 1975), the court found the doctrine of virtual adoption estopped the putative father from evading his child support responsibilities. There, Mr. and Mrs. Valle agreed to adopt Mr. Valle’s brother’s natural children, and brought them from Mexico to the United States. However, when Mrs. Valle filed for divorce and child support six years later, Mr. Valle argued that since he was neither the legal nor biological parent of the two children, he had no duty to support them. The court rejected this contention, explaining Clevenger held that “if the facts would establish an express agreement for the maintenance of the child or an estoppel as to the child the husband would be liable for child support.”13 Thus, the court accepted two forms of virtual adoption — either an express contract for adoption or a promissory estoppel in relation to the child. The elements of the latter form require: a showing that 1) the putative father represented to the child that he was his father; 2) the child relied upon the representation by accepting and treating the putative father as his father; 3) the child was ignorant of the true facts; and 4) the representation was of such duration that it frustrated the realistic opportunity to discover the natural father and to reestablish the child-parent relationship between the child and the natural father.14
In Valle, the court found ample evidence to support both an agreement between the natural and putative parents to adopt, as well as an estoppel between the child and Mr. Valle. Accordingly, it held that Mr. Valle was estopped from denying paternity, and required him to support his virtually adopted child.
New York law similarly recognizes virtual adoption in the child support context. In Wener v. Wener, 35 A.D.2d 50 (N.Y. App. Div. 2d 1970), the Weners were married and childless for six years when they agreed to adopt and raise the child of a Florida woman. However, no legal adoption proceedings were instituted on the child’s behalf. Thirteen months later, the Weners separated and Mr. Wener filed a petition for divorce. Mrs. Wener asked for child support. As is the case in Florida, the New York statutes require child support only for formally adopted or biological children. Nonetheless, the court accepted the implied promise-equitable estoppel (virtual adoption) approach to this problem. It argued that:
[h]aving agreed to adopt the child and support her, and having treated her as his own prior to the parties’ separation, the plaintiff may not now disavow all obligation and shift the entire burden onto the defendant. It may be reasonably inferred from the evidence that the defendant would not have acquired the child and brought her into their home in the absence of the plaintiff’s consent to adoption. Therefore, the plaintiff’s primary obligation rests upon a dual foundation of an implied contract to support the child and equitable estoppel.15
These cases support the proposition that the Sheffield test for virtual adoption should be applied in the child support context.
Virtual Adoption Principle Applied to John Doe
In the case of John Doe, Dana Daughter’s virtual adoption by Peter Putative is clearly established. There is an agreement to adopt Dana Daughter, specific performance by John Doe in surrendering his parental rights to Michelle Mother and Peter Putative, performance on the part of Dana Daughter by living in Peter Putative’s home, and partial performance by Michelle Mother and Peter Putative in taking Dana Daughter into their home and treating her as their legally adopted child. Although a court cannot compel Peter Putative to adopt Dana Daughter, if the reasoning of Sheffield is accepted, Dana Daughter should be entitled to specific enforcement of the benefits that would accrue from her virtual adoption.16
Likewise, Dana Daughter should be entitled to child support under the Clevenger test for virtual adoption. First, John Doe executed an express agreement permitting Michelle Mother and Peter Putative to terminate his parental rights and allowed Peter Putative to adopt Dana Daughter. Implicit in this agreement is a duty on the part of Peter Putative to support Dana Daughter. Moreover, if Peter Putative represented to Dana Daughter that he was her legally adopted father, and Dana Daughter was ignorant of the truth, then she should be entitled to child support under Clevenger’s promissory-equitable estoppel theory because that representation, along with the adoption contract, deprived her of the opportunity to continue and develop a relationship with her biological father, John Doe. Thus, Peter Putative should be estopped from denying his child support responsibility under either of these forms of virtual adoption.17
Although these cases support the proposition that Peter Putative has a duty to support Dana Daughter, it does not necessarily follow that John Doe can enforce that contract in defense of Michelle Mother’s action for arrears. Here, the established rule that “parents may not contract away the rights of their children to support; nor may they waive a child’s right to support by acquiescing in the obligated parent’s nonpayment of support,”18 is problematic.
Role of Laches in a Virtual Adoption Case
In virtual adoption cases, the doctrine of laches can be advanced to shield the biological parent from liability for child support arrears.19 This equitable defense is only available in extreme circumstances where the following elements are present: 1) conduct on the part of the defendant, or on the part of one under whom he claims, giving rise to the situation of which the complaint is made; 2) the plaintiff, having had knowledge of the defendant’s conduct, and having been afforded an opportunity to sue, is guilty of not asserting her rights; 3) lack of knowledge on the defendant’s part that the plaintiff will assert the right on which she bases her suit; and 4) injury or prejudice to the defendant in the event relief is accorded to the plaintiff.20
John Doe’s virtual adoption case satisfies these criteria. Michelle Mother’s action in preventing John Doe from visiting Dana Daughter, and inducing him to sign the agreement to terminate his parental rights, gave rise to the alleged child support arrears. Thus, Michelle Mother’s affirmative conduct, in requiring John Doe to sign the agreement to adopt, constitutes not only a voluntary relinquishment of her right to demand child support, but also a per se failure to assert that entitlement. Moreover, because of Michelle Mother and Peter Putative’s agreement to adopt Dana Daughter, John Doe reasonably believed that he was absolved of any obligation to support Dana Daughter. Finally, John Doe was prejudiced by Dana Daughter’s virtual adoption in two fashions. First, he had no opportunity to develop a relationship with Dana Daughter and was estranged from her as a result. Second, John Doe changed his position by marrying and planning a family with his new wife with the understanding that he would not be obligated to pay child support. Under these extreme circumstances, the doctrine of laches should estop Michelle Mother from compelling John Doe and his new family to pay windfall arrears.
Conclusion
Florida courts should apply the doctrine of virtual adoption to the contract to adopt/child support context. In a case like John Doe’s, it is not fair to permit Michelle Mother and Peter Putative to contractually terminate John Doe’s paternal relationship with Dana Daughter, and thereafter assert a claim for back child support. Virtual adoption and laches can not only prevent this result, but also can justify the imposition of at least a partial support obligation upon Peter Putative. Accordingly, the Florida family law practitioner should advocate for the application of these equitable principles. q
1Virtual adoption is synonymous to equitable adoption and adoption by estoppel. Urick v. McFarland, 625 So. 2d 1253, 1254 (Fla. 2d D.C.A. 1993) (explaining that virtual adoption “is in the nature of promissory estoppel or breach of an oral contract to adopt”).
2 Sauvage, 91 F. at 493.
3 Sheffield, 14 So. 2d at 419.
4 Miller v. Paczier, 591 So. 2d 321 (Fla. 3d D.C.A. 1991).
5 Grant v. Sedco Corp., 364 So. 2d 774 (Fla. 2d D.C.A. 1978).
6 Tarver v. Evergreen Sod Farms, Inc., 533 So. 2d 765 (Fla. 1988).
7 In Re Adoption of R.A.B., 426 So. 2d 1203 (Fla. 4th D.C.A. 1983). Essentially, these five elements impose a privity requirement. Virtual adoption is cognizable against the adoptive parents’ estate, but not against other parties such as the state of Florida or the virtually adoptive parents’ other relatives.
8 Paczier, 591 So. 2d at 321.
9 Benjamin v. Cronan, 93 S.W. 2d 975 (Mo. 1936).
10 Id. at 981, cited in Jan Ellen Rein, Relative by Blood, Adoption, and Association, Who Should Get What and Why, 37 Vand. L. Rev. 711, 792 n. 296 (1984).
11 Habacker v. Young, 474 F. 2d 1229 (5th Cir. 1973).
12 Clevenger, 189 Cal. App. 2d at 664.
13 Valle, 53 Cal. App. 3d at 841 (emphasis added).
14 Id.
15 Id. at 53.
16 See In Re Adoption of R.A.B., 426 So. 2d 1203 (Fla. 4th D.C.A. 1983).
17 Compare with Pierce v. Pierce, 645 P. 2d 1353, 1355 (Mont. 1982) (arguing that virtual adoption is inapplicable where a stepfather seeks to establish custodial rights against the wishes of the child’s natural mother.).
18 Lang v. Lang, 252 So. 2d 809 (Fla. 4th D.C.A. 1971).
19 In the real John Doe case, the court absolved John doe of liability on laches grounds.
20 Dean v. Dean, 665 So. 2d 244 (Fla. 3d D.C.A. 1995) (holding that the doctrine of laches barred wife’s claim for back child support where wife waited 30 years to file suit.).
Stuart A. Markus is the senior partner in the law firm of Markus & Winter, P.A., Miami. He concentrates his practice in family law. He earned a J.D. from the University of Miami after receiving his B.E. from the University of Miami. He is past national president of the TAU Epsilon Rho Law Society.
Michael Metta is a third-year law student at the University of Miami, where he is the research and writing editor of the Business Law Journal. Mr. Metta clerks for Markus & Winter, P. A.
This column is submitted on behalf of the Family Law Section, Martin L. Haines III, chair, and John S. Morse, editor.
