Can A Virtual Adoption Be Undone?

April 23, 2015

Authored by: Luke Lantta

The inheritance rights of adopted children have a long, complex history in many jurisdictions.  In Georgia, add into the adoption equation the equitable doctrine of “virtual adoption.”  In a virtual adoption, the ‘adopting parent’ orally agrees to adopt the child of another as his or her own without actually legally adopting the child and all parties act on the oral agreement to adopt.   Virtual adoption is not legal or statutory adoption.  It is an equitable remedy that is applied only upon the death of the ‘adopting parent’ to avoid an unfair result to the ‘adopted child’ by the application of intestacy laws.

As might be expected, these virtual adoption situations are very fact specific.  There must be evidence of an actual oral agreement to adopt and evidence that all the parties acted on that agreement.  The people involved don’t actually have to use the word “adopt” or any other technical words in the agreement.  To prove partial performance by the parties to act on the agreement, there must be evidence that the biological parent interrupted his or her actual relationship with the child.  But, what happens when biological parents later reunite with their children?

In Sanders v. Riley, the Georgia Supreme Court decided that it doesn’t matter.  A virtual adoption cannot be undone by showing that the biological parent and child later formed a relationship after the parent-child relationship was originally severed.  Once a child’s status has changed in the course of a virtual adoption and the contract to adopt has been partially performed, the child cannot later become “unadopted” simply by developing a relationship later in life with a biological parent.