The Contractual Nature of Adoption
Erik L. Smith
Defined generally, adoption makes the child the legal child of the persons adopting him, and they become his legal parents with all the rights and duties between them of natural parents and legitimate child. The natural parents, in turn, are relieved of all parental responsibilities for the child, and they lack all rights over the adopted child or his property.1See, for example, Birth Mother v. Adoptive Parents, 59 P.3d 1233 (Nev. 2002), par. 32. Adoption is complete legal substitution of parents.2Andrews v. Andrews, 338 S.E.2d 809 (N.C. Ct. App. 1986), disc. rev. denied, 345 S.E.2d 385 (1986), par. 1 citing Crumpton v. Mitchell, 281 S.E.2d 1 (1981); 2 Am. Jur. 2d Adoption Section 83 (1962).
In 1938, the Oregon Supreme Court held that, "The relationship created by adoption, although governed by statute, is contractual."3In Re Hayes' Estate, 86 P.2d 424, 87 P.2d 766 (Ore. 1938), par. 10 of syllabus. An Oregon Appeals Court amplified that 60 years later: "To the extent that an agreement between one party to relinquish a child for adoption and another party to adopt a child may be viewed as a contract, it is a contract with terms strictly prescribed by state law.4Does 1-7 v. State of Oregon, 993 P.2d 822 (Or. Ct. App. 1999), pars. 9-12, rev. den., 6 P.3d 1098 (2000). Adoption has been called "contractual relinquishment of custody."5See, In re Adoption Mays, 507 N.E.2d 453 (Ohio Ct. App. 1986). In 1980, the Ohio Supreme Court held that: "An agreement by a child's parents or legal guardian to surrender a child to the permanent custody of a certified association or institution described in R.C. Section 5103.15 constitutes a contract where accepted by such association or institution and when voluntarily made without fraud or misrepresentation."6In re Miller, 61 Ohio St.2d 184, 189, 399 N.E.2d 1262 (Ohio 1980).
Erik L. Smith is a certified paralegal in Columbus, Ohio and an independent legal researcher for family law and personal injury attorneys. He has appeared on NPR, CNN, and PBS regarding adoption law and has published several of his articles on the internet and in hard copy publications such as Ohio Lawyer, Air Force Law Review, Probate Law Journal of Ohio, Adoption Today, and Midwifery Today.