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Johnson v. Johnson9/14/2000
s of contractual assent." Id.
[ ] The contract to adopt must be supported by consideration. The existence of consideration is a question of law. Matter of Estate of Jorstad, 447 N.W.2d 283, 285 (N.D. 1989). Good consideration may consist of a benefit to the promisor or a detriment to the promisee. N.D.C.C. § 9-05-01; Maragos v. Norwest Bank Minnesota, N.A., 507 N.W.2d 562, 565 (N.D. 1993). Antonyio testified he agreed to adopt Jessica in order to preserve marital harmony. This form of non-economic consideration is similar to that which has been held valid in equitable adoption cases in the inheritance context. See Locke, Annotation, Modern Status of Law as to Equitable Adoption or Adoption by Estoppel, 97 A.L.R.3d 347, § 2 at 355 (e.g. love and affection accruing to the adoptive parent from the child, giving by the child of companionship and obedience).
[ ] We adhere to our statement in Geiger, however, that a contract to adopt "does not, in and of itself, create the status of parent and child between the child and the promisor." 271 N.W.2d at 573. Application of the doctrine of equitable adoption in the domestic context, unlike its application in inheritance cases, contemplates an ongoing relationship between living parties and, therefore, something more than the agreement to adopt is required.
[ ] The inquiry includes whether there exist indicia of a true parent-child relationship between the child and the alleged equitable parent. See 2 Am. Jur. 2d, Adoption § 55 at 933-34 (1994). Some of the facts and circumstances considered by courts include representations by the alleged equitable parents to the child that she was their natural child; representations to the child that she had been adopted; holding the child out to the community as their child; baptizing the child as their daughter in the family's church; claiming the child as a dependent on income tax returns; having the child use the alleged equitable parent's last name; referring to the alleged equitable parents as mom and dad; signing cards and letters to the child "Love, Dad"; incomplete efforts to adopt the child and the natural parents' consent to the adoption of the child. See Locke, Law as to Equitable Adoption, at 358; 2 Am. Jur. 2d, Adoption § 55 at 934 (1994). An additional factor tending to establish that a child was equitably adopted is the distant relationship with the natural parents. See In re Marriage of Valle, 53 Cal. App. 3d 837, 126 Cal. Rptr. 38 (Cal. Ct. App. 1975); see also 2 Am. Jur. 2d, Adoption § 55 at 934 (1994).
[ ] Antonyio argues even if the doctrine of equitable adoption may be applied to impose a child support obligation, Madonna does not have standing to seek that remedy because she is not Jessica's natural parent. We disagree. "Standing is a concept utilized to determine if a party is sufficiently affected so as to insure that a justiciable controversy is presented to the court." Billey v. North Dakota Stockmen's Association, 1998 ND 120, 7, 579 N.W.2d 171. Madonna is a party to the contract to adopt and, in her counterclaim below, she requested that the trial court determine she and Antonyio equitably adopted Jessica, making her their child and imposing parental obligations upon both of them. The substantive circumstances of this case, a divorce in which child support was requested, are identical to the other cases in which husbands have been held to have equitably adopted children for the purposes of imposing child support. See Wener, 312 N.Y.S.2d 815; Frye, 738 P.2d 505; Geramifar, 688 A.2d 475. Further, the circumstances presented by this case are similar to those in Geramifar, in that there, the parties never initiated adoption proceedings and neither party was a natural p
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