Formalities for Informal Adoptions

• Author: Jeffrey A. Parness
• Position: Professor Emeritus, Northern Illinois University College of Law. B.A., Colby College; J.D., The University of Chicago. An early draft was presented at the Tenth Annual Wells Conference on Adoption Law, sponsored by the National Center for Adoption Law and Policy and the Capital University Law Review on March 6, 2014 in Columbus, Ohio.
• Pages: 373-405

FORMALITIES FOR INFORMAL ADOPTIONS

JEFFREY A. PARNESS *

I. INTRODUCTION

Until recently in the United States, legal parentage, prompting both

childcare opportunities and child support obligations, chiefly arose within

opposite sex marriages and from state-supervised formal adoptions.1 The

sex had to be consensual,2 and the adoptions had to meet varying statutory

requirements—birth parent consent or governmental proceedings to

terminate birth parents’ interests and state inquiries into the suitability of

the prospective adopters.3 When children were born of sex outside of

marriage, their natural parents were typically noted on the birth

certificates, again prompting childcare and child support.4

Legal parentage has evolved swiftly since the 1990s to reflect changes

in both human reproductive technologies and social conduct.5 Today,

assisted reproduction may lead to single parents, same sex parents, or birth

mothers (i.e., gestational carriers) who never contemplated parenthood.6

Copyright © 2015, Jeffrey A. Parness.

* Professor Emeritus, Northern Illinois University College of Law. B.A., Colby

College; J.D., The University of Chicago. An early draft was presen ted at the Tenth

Annual Wells Conference on Adoption Law, sponsored by the National Center for

Adoption Law and Policy and the Capital University Law Review on March 6, 2014 in

Columbus, Ohio.

1 See Rebecca Aviel, A New Formalism for Family Law, 55 WM. & MARY L. REV.

2003, 2042–43 (2014).

2 See id. at 2042.

3 See generally UNIF. ADOPTION ACT (1994), 9 U.L.A. 11 (1999).

4 See UNIF. PARENTAGE ACT (amended 2002) § 201, 9B U.L.A. 24 (Supp. 2014).

5 See id. at art. 7, introductory cmt., 9B U.L.A. 73 (Supp. 2014) (explaining that the

development of assisted reproductive technology in the past thirty years has “enabled

childless individuals and couples to become parents”). See also Leslie Joan Harris, The

Basis for Legal Parentage and the Clash Between Custody and Child Support, 42 IND. L.

REV. 611, 618–19 (2009) (explaining how today’s parentage laws partially originated from

demographical changes: “In 1970, about 10% of all children were born to unmarried

women; by 2000, about one-third were.”).

6 See Lauren Gill, Note, Who’s Your Daddy? Defining Paternity Rights in the Context

of Free, Private Sperm Donation, 54 WM. & MARY L. REV. 1715, 1735, 1742 (2013)

(explaining how the law has not develo ped at the same speed as recent medical advan ces

and social changes; and, how sperm donor agreements are not always enforceable and may

result in conflicting parentage claims). See also UNIF. PARENTAGE ACT art. 7, 9B U.L.A. 73

(continued)

374 CAPITAL UNIVERSITY LAW REVIEW [43:373

Social conduct today produces many more children born of non-martial

sex, whose natural fathers are neither listed on birth certificates nor attain

parenthood under law.7

These changes have prompted new avenues of legal parentage which

involve neither sex nor formal adoption. These avenues may be statutory

or common law. They go by varying names, including “de facto

parenthood,” “presumed parentage,” and “equitable adoption.”8 Herein,

they are collectively referred to as informal adoptions. Parenthood usually

results for those who become second (or occasionally third) parents to

children with existing and continuing parents.9

Informal adoptions typically arise for those who have acted in a

parental manner for some time.10 While both children and their existing

parents frequently benefit from informal adoptions, this is not always

true.11 For example, children may gain love and financial support while

(Supp. 2014) (explaining the various types of parents which can result from children of

assisted reproduction); § 201, 9B U.L.A. 24 (Supp. 2014); § 809, 9B U.L.A. 90 (Supp.

2014) (explaining how if a gestation agreement is invalidated, the birth mother beco mes the

legal parent).

7 See Harris, supra note 5, at 618. See also Gill, supra note 6, at 1745–46 (explaining

that a father’s biological ties to a child are not always dispositive with regards to

determining parentage and that courts today are more accepting of nontraditional families).

8 See generally UNIF. PARENTAGE ACT § 204, 9B U.L.A. 27 (Supp. 2014) (describing

various ways by which a man may be presumed to be the parent of a child). See also Gill,

supra note 6, at 1745 (describing how the law now recognizes “de facto parentho od” as a

factor other than biological ties in order to determine parental rights); Adam Stephenson,

Arizona Juvenile Law Legal Research: Resources and Strategies, 2 PHOENIX. L. REV. 193,

266–67 (2010) (referring to the doctrine of “equitable adoption”).

9 See Pamela Laufer-Ukeles & Ayelet Blecher-Prigat, Between Function and Form:

Towards a Differentiated Model of Functional Parenthood, 20 GEO. MASON L. REV. 419,

421–22 (2013) (explaining how formal parenthood has begun to breakdown and how

“unrelated third parties” who are “significan t caregivers” are becoming recognized as

functioning parents).

10 See id. at 422–23 (explaining how functioning parents act in parental roles by

performing duties such as caregiving, providing emotional and financial support, and

providing education, medical support, and guidance).

11 See id. at 438–40 (explaining how children benefit from informal adoptions by

receiving care from their long-term care givers and how formal parents benefit from

informal adoptions by having additional help for child care). But see id. at 440, 446

(describing how informal parenthood can potentially infringe on parental privacy, and how

recognizing informal parenthood creates a hierarchical structure of parenting rights amongst

the respective parents).

2015] FORMALITIES FOR INFORMAL ADOPTIONS 375

simultaneously their parents may see their superior parental rights

diminish.

Beyond parental acts, state laws governing informal adoptions vary

widely.12 Some state laws require existing parents to explicitly consent to

shared childcare,13 while others require informal adopters to act parentally

over a specified period of time.14 Still others require a specified period of

shared residence.15 This Article will suggest that these types of additional

requirements inadequately protect the interests of children, existing

parents, informal adopters, and the public at large.16 Perhaps not every

interested party can be made happy, but a better job can be done in

balancing competing interests.

After reviewing the relevant technology and changes in conduct, as

well as the state laws governing informal adoption, this Article will

suggest some additional formalities that would more adequately balance

the legitimate competing interests.17

12 See, e.g., ALA. CODE § 26-17-204 (LexisNexis 2009); DEL. CODE ANN. tit. 13, § 8-

201 (2014); D.C. CODE § 16-831.01–02 (2001); NEV. REV. STAT. ANN. § 126.051

(LexisNexis 2010); TENN. CODE ANN. § 36-2-304 (2014).

13 See, e.g., TENN. CODE ANN. § 36-2-304 (allowing a biological father to rebut an

informal father’s rights by establishing his parentage).

14 See, e.g., DEL. CODE ANN. tit. 13, § 8-201 (allowing a person to establish “de facto

parent status” by performing various parental activities for “a length of time sufficient to

have established a bonded and dependent relationship with the child”); D.C. CODE § 16-

831.01 (describing how a “de facto parent” is an individual who takes on full responsibility

for the child and holds himself out as the child’s parent); § 16-831.02 (allowing a third

party to file for custody of a child when th e individual has assumed enumerated paren tal

duties); NEV. REV. STAT. ANN. § 126.051 (finding a presumption of paternity when a man

has, among other things, received the child i nto his home, held the child out to be his own,

and provided emotional and financial support for the child).

15 See, e.g., NEV. REV. STAT. ANN. § 126.051 (finding a presumption of paternity when

a man cohabited with the mother for six months before conception and continued to cohabit

throughout the time of conception); D.C. CODE § 16-831.01 (establishing a “de facto”

parenthood when a man has lived with the ch ild for at least ten of the twelve months before

filing for custody); § 16-831.02 (allowing a third party to file for custody of a child when he

has lived in the same household as the child for at least four of the six months before filing

for custody).

16 See infra Part IV.

17 See infra Part V.