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Johnson v. Johnson9/14/2000
f those states has recognized "equitable adoption" in a case such as this. The majority ignores jurisdictional implications and comity by attempting to apply a newfound theory of equitable adoption to circumstances that occurred wholly outside this state.
[ ] Although North Dakota has recognized equitable adoption, previous recognition has been limited strictly to matters of inheritance, and then only to cases where the deceased had not expressed a different intent through a valid will.
[ ] The majority places North Dakota among an extremely small minority of states that have recognized equitable adoption for child support , and ignores the cases and the persuasive analysis of the courts that have rejected the concept. The majority establishes precedent embraced by no other court. Specifically, the majority not only suggests imposition of a child support obligation under the auspices of equitable adoption, but it suggests such imposition of a support obligation may be imposed from a non-parent to a non-parent based on a misconceived notion of equity.
[ ] The majority decision builds a foundation upon unsupported ground, and the crumbling result undoubtedly will be impairment of the marital and familial relations of countless non-traditional North Dakota families. The willingness of families to provide foster care or to care for the children of other family members is jeopardized by the majority's holding. The majority creates a mechanism for deadbeat dads or misfit moms seeking to saunter away from child support obligations or, if they resume taking care of their children, to sue for child support from those who, out of the generosity of their hearts, have cared for their children.
[ ] Because this radical departure in jurisprudence is unsupported by the law, is contrary to our statutes and case law, is an abrogation of jurisdiction and comity, and is constitutionally infirm, I dissent.
I.
[ ] The North Dakota legislature has enacted detailed statutory guidelines for adoption proceedings. By recognizing equitable adoption for child support , the majority invades the province of the legislature and abandons our precedent. As detailed below, the statutory basis for adoptions provides stability and certainty of law, as well as protection of a child's best interests.
[ ] "Only a court may issue a final decree of adoption and then, only if it determines that statutory grounds for doing so have been satisfied." Matter of Adoption of K.A.S., 499 N.W.2d 558, 566 (N.D. 1993) (citing N.D.C.C. § 14-15-19(3)). The majority concludes, at 17, "longstanding North Dakota precedent recognizes the doctrine of equitable adoption." As indicated, equitable adoption has been recognized in this state, but its recognition has been strictly for inheritance issues where the deceased has not expressed a contrary intent by will. Applying the intestate probate law to child support is as infirm as applying the uniform commercial code to decide whether someone has committed murder, or applying oil and gas law to decide fault in an automobile accident.
[ ] Our legislature has set forth the statutory scheme for adoption by enacting the Revised Uniform Adoption Act. N.D.C.C. ch. 14-15. A review of our statutes exemplifies how these important statutory provisions accomplish protection of adoptive children as well as the child's natural parents. "In this state there is no common law in any case where the law is declared by the code." N.D.C.C. § 1-01-06. By creating child support obligations under the auspices of equitable adoption, the majority is creating common law and invading the province of the legislature.
A.
[ ]
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