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 J EFFREY A. P ARNESS * 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 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. 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 developed at the same speed as recent medical advances 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 becomes 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 parenthood” 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 “significant 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 the individual has assumed enumerated parental duties); NEV. REV. STAT. ANN. § 126.051 (finding a presumption of paternity when a man has, among other things, received the child into 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 child 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. 376 CAPITAL UNIVERSITY LAW REVIEW [43:373 II. TECHNOLOGY AND SOCIAL CONDUCT CHANGES Aside from formal adoption, legal parentage in the United States during the 1990s mainly arose from consensual sex and led to childcare opportunities and child support obligations for women who gave birth, as well as for married men via a statutory presumption of natural ties. 18 For unmarried parents, the birth mother was a legal parent for all purposes. 19 The biological father was only deemed an automatic legal parent for child support purposes. 20 If the unwed father wished to raise the child, with or without the birth mother, he generally had to form a “significant custodial, personal, or financial relationship” with the child. 21 For a birth mother married to a man other than the biological father, the biological father could be pursued for child support if the husband’s paternity was disestablished. 22 The unwed biological father of a child born of adultery might also be able to seek a childcare order from a court if the husband’s paternity was disestablished. 23 At birth, or long after, legal parentage prompting childcare and child support could arise from formal adoptions by heterosexual couples who are 18 See Aviel, supra note 1, at 2042. 19 See id. at 2043. 20 See Katharine K. Baker, Bargaining or Biology? The History and Future of Paternity Law and Parental Status , 14 CORNELL J.L. & PUB. POL’Y 1, 6–8 (2004). 21 See Lehr v. Robertson, 463 U.S 248, 267–68 (1983). Such a formation was necessary for the unwed biological father to have a right to voice his opinion, via his...