Virtual adoption: contractual estoppel of parental rights and responsibilities.

• Author: Markus, Stuart A.
• Position: Florida

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...