Virtual Adoption: Contractual Estoppel of Parental Rights and Responsibilities

John Doe and Michelle Mother divorced when their daughter, Dana Daughter, was 10 months old. Michelle Mother made it difficult for John to see Dana, and eventually asked him to let her new husband, Peter Putative, adopt Dana. John agreed, thinking he wouldn’t have to pay child support anymore. But the adoption never happened. Years later, Michelle asked John for back child support. This kind of situation happens a lot, but Florida courts haven’t dealt with it directly. In U.S. v. Sauvage, a court case from 1899, a mother in Belgium gave her child to her sister to raise. The sister then moved to America with the child, and the mother did not try to get the child back for several years. The court decided that the sister had virtually adopted the child with the mother’s consent. This shows that virtual adoption has been accepted for a long time in child custody cases. In a Florida case called Sheffield v. Barry, a girl named Cora was raised by a family who wasn’t her biological parents. They made a contract to adopt her, but never completed the legal adoption process. When they died, Cora couldn’t inherit their stuff because she wasn’t legally their daughter. The court decided to use its power to enforce the adoption contract and treat Cora as if she had been legally adopted by the family. In Florida, virtual adoption cases involve survivorship rights for children who were raised by someone who was not their biological parent. To establish virtual adoption in Florida, five elements must be proven: an agreement between the biological and adoptive parents, the biological parents giving up custody, the child living with the adoptive parents, the adoptive parents treating the child as their own, and the adoptive parents dying without a will. However, virtual adoption cannot be used to claim wrongful death or workers’ compensation benefits. Courts also require proof of an actual agreement to adopt, and both parents are responsible for child support in the event of divorce, even without a legal adoption. An example of this is seen in the Clevenger v. Clevenger case in California, where a man was required to pay child support for a child he raised as his own, even though he never legally adopted the child. In the Valle case, a man agreed to adopt his brother’s kids and brought them to the United States. When his wife later asked for child support after they got divorced, he said he didn’t have to pay because he wasn’t the kids’ legal or biological dad. But the court said he couldn’t avoid his responsibility because he had basically promised to be their dad, and the kids had relied on that. So, he had to support them like a real dad would. In New York, a married couple who agreed to raise a child as their own, but didn’t go through with a legal adoption, were still required to provide child support after they separated. The court decided that since they had agreed to raise the child and had treated her as their own, they couldn’t avoid their responsibility to support her. This shows that the virtual adoption test should be used for child support cases. John and Michelle agreed to let Peter adopt their daughter, Dana. Since he agreed to adopt her, Peter has to support Dana like a real parent would. Even if John and Michelle tried to say they didn’t need support, Peter still has to help Dana out. In virtual adoption cases, the doctrine of laches can be used to protect the biological parent from having to pay child support arrears. This defense can only be used in extreme circumstances where certain conditions are met. In John Doe’s case, his ex-partner’s actions in preventing him from seeing his daughter and convincing him to give up his parental rights led to the child support arrears. Because of this, John Doe did not realize he still had to pay child support. Additionally, he was prevented from developing a relationship with his daughter and had made plans for his future based on the belief he didn’t have to pay child support. Due to these extreme circumstances, the ex-partner should not be allowed to make John Doe and his new family pay the arrears. In a case like John Doe’s, it is important for Florida courts to consider virtual adoption when it comes to contracts for adoption and child support. This could prevent unfair situations where one parent tries to avoid financial responsibility for their child. The legal concept of laches can also be used to prevent these unfair situations. Florida family law practitioners should advocate for these principles to be applied. Stuart A. Markus is a top lawyer at a law firm in Miami, focusing on family law. He got his law degree from the University of Miami after earning his bachelor’s degree there. He used to be the national president of a law society.

Source: https://www.floridabar.org/the-florida-bar-journal/virtual-adoption-contractual-estoppel-of-parental-rights-and-responsibilities/