Child Custody and Equitable Adoption in Illinois

Adoption is one part of family law that doesn’t get much press, perhaps because it isn’t as contentious as the division of assets and debts in a divorce or as emotional as a hotly contested custody battle.  Whatever the reason, adoption is typically an area of lightness amidst the often challenging aspects of other family law issues.


However, for an adoption to be legal and proper, parents must take necessary steps. An adoption petition must be filed, and the court must enter a judgment of adoption, terminating the biological parents’ rights and finding that the adoption is in the best interests of the child.


There is an exception to the rule, called “equitable adoption,” which typically arises in probate cases where there is a contested will. In the case of DeHart v. DeHart, the Supreme Court of Illinois was faced with determining when equitable adoption should be recognized in Illinois. The DeHart Court found that “equitable adoption theory should be recognized under the right circumstances even in the absence of a statutory adoption or a contract for adoption.” The Court further held that requirements for an equitable adoption claim are: (1) a plaintiff must prove intent to adopt; (2) a plaintiff must show that the decedent acted consistently regarding such intent in forming a “close and enduring familial relationship” with the plaintiff.


Thus, under the theory of equitable adoption, a child who has not been formally adopted may be granted particular rights (such as inheritance rights) that a child who has been formally adopted would have. Would the same concept apply to a divorce or child custody case? That is the question decided in the case of the Marriage of Mancine and Gansner.


In that case, the husband, Nicholas Gansner, sought custody of a minor child who had been adopted by his wife, Miki Loveland Mancine, but whom he had never formally adopted. Neither Gansner nor Mancine were the biological parents of the child, William, but Mancine had adopted him prior to their marriage with the intention that Gansner would adopt William after their wedding.


Gansner, who was an attorney himself, apparently knew all he needed to do was file a form petition to adopt William. Yet for whatever reason, he never began the process. However, Mancine and Gansner adopted another child together, and Gansner became the legal father of that child.  When Mancine filed for divorce and Gansner pursued custody of William, the trial court found that Gansner did not have standing to seek custody of William. Gansner appealed, and the appellate court found that, among other things, Gansner was “not a parent” to William.  Legally, Gansner had been aware that William was not his biological son and that the formal adoption proceedings were necessary for him to assert a custody claim.


However, Gansner fought for custody of William under the theory of equitable adoption. The Appellate Court in Mancine and Gansner found that equitable adoption “should have no application in the context of statutory proceedings of adoption, divorce proceedings, or parentage.” The court noted:

“[Gansner] was well aware of the adoption requirements and chose not to pursue them. Further, [Mancine] is the legal parent of William and to recognize Nicholas as having ‘equitably adopted’ William would violate [Mancine’s] constitutional right to raise her children. To apply the concept of equitable adoption in the context of our statutory proceedings of adoption, parentage and divorce would undermine the entire family law structure enacted by our legislature and create uncertainty and protracted litigation.”

The appellate court held that, “equitable adoption was recognized in DeHart for an adult seeking inheritance in a probate proceeding, and it has no application in the statutory proceedings of adoption, divorce, and parentage.”


While a will contest involving equitable adoption is a contest under common law, adoption and divorce are proceedings pursuant to statute. The Mancine court noted that equitable adoption is a claim for adult children who believed that he or she had been adopted and for inheritance purposes, not for parents who wish “to impose a parent-child relationship on a child and seeks uncognizable custody rights to the child.”


So while in many areas of law, the courts may impose a legal relationship between parties when it is just and equitable under the circumstances, in the area of adoption, Illinois courts have drawn a clear line:


“No matter how much [Gansner] argues that [Mancini] ‘held out’ William as [Gansner’s[ adopted son or as part of their ‘family,’ the fact remains that at all times [Gansner] knew that William was not in fact yet adopted by him and that he in fact had to file an adoption petition but failed to do so.”


Ultimately, the laws created by the Illinois legislature provide the process and procedure to become an adoptive parent to a child. If one does not follow these, he or she will not have standing to seek child custody.   In order to avoid such a situation in the future and to ensure that your adoption is legal and enforceable, contact our office today.

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