Understanding the Concept of Equitable Adoption

equitable adoption, probate law, Illinois Family Law AttorneyUnder the auspices of criminal law, intent often plays a significant role in the commission and prosecution of a crime. The same may be said about certain areas of family law, as well, as intent and good faith efforts are typically recognized by the court in a variety of applications. There is one area of family law, however, where intent may not be enough, as the Illinois Supreme Court has closed the door on equitable adoption as it relates to child custody situations and the parent-child relationship.

Equitable Adoption and DeHart v. DeHart

While most people are familiar with the concept of adoption, which grants legal parental rights to a non-biological parent, equitable adoption refers to situations in which legal adoption was never completed but the substance of the adoptive parent-child relationship is recognized by the court. The issue of equitable adoption was the centerpiece of a 2013 Illinois Supreme Court decision in DeHart v. DeHart.

The facts of the DeHart span more than half a century, and involve the actions of several individuals: Donald Dehart married a woman with a two year old son, of whom he was not the biological father. While agreeing to adopt the boy, Donald and the boy’s mother decided to keep the adoption secret, and held the child out to be Donald’s biological son. It was not until more than 50 years later that the son found that adoption had never legally been recorded.

When the mother died and Donald remarried, he drafted a will in which he stated he had no children and left none of his estate to the child he purportedly adopted. The son contested the execution of the will on the grounds that he had been equitably adopted and should be recognized as Donald’s son. Ultimately, the Illinois Supreme Court agreed, stating that “in Illinois, an equitable adoption theory should be recognized under the right circumstances.”

In re Parentage of Scarlett Z.-D.

With equitable adoption having been recognized in inheritance law, questions remained about its application in family law. The Illinois Supreme Court, however, effective answered that question earlier this year by its decision In re Parentage of Scarlett Z.-D. In this case, a woman adopted a child from Slovakia, but under Slovakian law, her unmarried partner was not permitted to be included in the adoption. With the mother as the child’s only legal parent, the couple proceeded to establish a family unit in the United States, with the woman’s partner filling the assumed, but not legal, role as father.

When the couple later broke up, the man filed sought joint custody of the child he had helped raise. Lower courts were mixed on the man’s request, but Illinois Supreme Court decided that, despite his role as the child’s father figure, he had no standing to request custody. In addition, the decision clearly stated that equitable adoption “is a probate concept to determine inheritance and does not apply to proceedings for parentage, custody, and visitation.”

The state’s high court went to say that changes to the law in this area should be accomplished through legislative action, if necessary, and not judicial decisions. Until the law is changed, however, establishment of legal parental rights is vital to any child-related matter. If you have questions about establishing legal paternity, adoptions, or any other family law issues, contact an experienced Arlington Heights family law attorney today. 

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