Blogs from May, 2011


Adoption:  Inheriting From Both Sets of Parents.  Can You Really Have It Both Ways?

Every year, thousands of orphaned children are adopted by foster families nation-wide.  Most of them lead normal lives with their adoptive families, not giving much thought to their natural parents.  After all, in most cases, the adoptive family is the only family they ever knew. 

Now, for just a moment imagine that you are one of those children.  You live in Oregon where you were born (out of wedlock), adopted, and raised; and you just discovered the shocking reality that your natural father never knew of your existence because your natural mother withheld the news of your birth from him resulting in your adoption without his consent.  Suddenly, the pre-conceptions you had about your real father (that he abandoned you) have vanished and are now replaced with questions about what would have been.  Then, you set out on a search for your natural father and found that he is living in Florida.  You make contact with him and he is overwhelmed with joy over meeting you, so much so that he regularly travels between Florida and Oregon to visit you.  The two of you establish a father-daughter relationship over the next twenty years when your natural father dies suddenly, leaving no last will and testament.  Naturally, the question begs at you, “Can I inherit from him, even though I was adopted?” 

Historically, if a child was illegitimate, most jurisdictions in the United States required only the consent of the child’s natural mother to the adoption of the child.  The right to grant or withhold such consent was not extended to the fathers of illegitimate offspring, since they were not considered to have sufficient interest in the benefits and obligations of raising a child to determine whether the child should be released for adoption.

In 1979, this trend was reversed in Caban v. Mohammed, 441 U.S. 380, 99 S. Ct. 1760, 60 L. Ed. 2d 297 (1979).  The key issue was whether the consent of an unwed biological father need to be obtained before an adoption could be finalized.  In Caban, a mother of illegitimate children and her husband filed a petition for adoption.  The children’s natural father filed a cross-petition to adopt.  The New York Surrogate’s Court granted the mother’s petition, and the natural father appealed.  The decision was affirmed by the Supreme Court, Appellate Division, and subsequently affirmed by the New York Court of Appeals.  On appeal, the United States Supreme Court ruled that a law depriving all unwed fathers of the right to decide against adoption, whether or not they actually took care of the children in question, was unconstitutional and a form of Sex Discrimination. 

Consistent with the Caban case, the State of Florida now requires the consent of all unwed fathers of minor children prior to the termination of parental rights pending adoption, unless the father does not acknowledge paternity or participate in the rearing of the child.  Fla. Stat. § 63.062(1)(b)(5) (2008); La Follette v. Van Weelden, 309 So. 2d 197 (Fla. 1st DCA 1975).  The effect of the subsequent adoption is that, for the purpose of intestate succession, the adopted child is no longer a descendant of his or her natural parents.  Fla. Stat. § 732.108(1) (2008). 

 At least until recently, Florida courts were required to give full faith and credit to foreign adoptions, unless the decree from the other state was repugnant to the laws or policies of this State.  Mott v. First Nat’l Bank of St. Petersburg, 124 So. 36, 37 (Fla. 1929); Kupec v. Cooper, 593 So. 2d 1176, 1178 (Fla. 5th DCA 1992); Tsilidis v. Pedakis, 132 So. 2d 9, 11-12 (Fla. 1st DCA 1961).

Getting back to our hypothetical, arguably your biological mother procured your adoption fraudulently by withholding certain crucial information from your natural father (i.e., your birth).  Therefore, in theory, your real father was prevented from acknowledging paternity, participating in your rearing, and/or object to your adoption because of your mother’s fraudulent actions.  If so, the Florida probate court need not recognize your Oregon adoption and could theoretically allow you to inherit from your biological father. 

Things got muddier, however, in May of 2009 when the Second District Court of Appeal decided the case of Embry v. Ryan, 11 So. 3d 408 (Fla. 2d DCA 2009).  The Court held, for apparent public policy reasons, that Florida Courts should recognize all foreign adoptions without regard to whether the adoption was procured in a manner that was contrary to Florida law.  Apparently, the Court felt that the State has a compelling interest to preserve the family unit, and was concerned that to rule otherwise would open the floodgates for adopted children to begin attacking the validity of their adoptions. 

To date, no other Florida Court has ruled on the issue of whether adoptions procured by fraudulently preventing unwed natural fathers from asserting their parental rights should be recognized in this State, so the law remains unsettled in that area.  But, there certainly appears to be a mechanism by which one can have their cake and eat it too. 

To be continued…   (maybe).


Most Recent Posts from May, 2011