Section 28.27 Equitable Adoption, Equitable Parentage, and Parentage by Estoppel

• Library: Family Law Deskbook and 2014 Supp

X. (§28.27) Equitable Adoption, Equitable Parentage, and Parentage by Estoppel

Equitable adoption actually has nothing to do with parentage. In fact, it comes into play only in the absence of actual parentage. Equitable adoption is an aspect of probate law. In re Estate of Van Cleave, 610 S.W.2d 620 (Mo. banc 1981). It is a concept by which a person inherits as a child of the deceased though that person is not a natural or legally adopted child of the deceased. Equitable adoption is treated here because it most commonly arises as a problem involving family relationships and is often confused with issues of parentage.

Equitable adoption is not a complete statutory adoption, and a decree of equitable adoption does not confer on the person adopted the same status created by an order made under the Adoption Code. Menees v. Cowgill, 223 S.W.2d 412 (Mo. 1949). Equitable adoption is limited strictly to property rights and does not provide a basis for an order of custody of a child. Engel v. Kenner, 926 S.W.2d 472 (Mo. App. E.D. 1996). Equitable adoption is also different from paternity by estoppel, a doctrine sometimes used to impose an obligation of child support when a child is born during the marriage of a couple but the husband is not the actual biological father. See In re Marriage of Gallagher, 539 N.W.2d 479 (Iowa 1995); In re Marriage of Halvorsen, 521 N.W.2d 725 (Iowa 1994).

Adoption did not exist at common law and is purely a creature of statute. Engel, 926 S.W.2d 472. Adoption can only be accomplished by following the prescribed statutory procedure. Menees, 223 S.W.2d 412. Equitable adoption developed through the inherent powers of a court of equity to do what the law does not provide but that good conscience demands. The courts, therefore, have recognized that, even though neither actual paternity nor a legal adoption can be established, a decree of equity may be sought to permit a person to make a claim against a decedent’s estate as a child of the decedent. See:

Mize v. Sims, 516 S.W.2d 561 (Mo. App. S.D. 1974)

Hogane v. Ottersbach, 269 S.W.2d 9 (Mo. 1954)

Menees, 223 S.W.2d 412

An equitable adoption proceeding is actually an action for specific performance of a contract. Menees, 223 S.W.2d 412. By a decree of equitable adoption, a court of equity is only enforcing a contract under which one party has completed performance and the other has not performed. For this reason, equitable adoption is frequently referred to as adoption by estoppel because...