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Johnson v. Johnson9/14/2000
The district court concluded North Dakota law allowed specific enforcement of a contract to adopt so long as the contract was established by "clear, cogent and convincing" evidence, which left no reasonable doubt as to the agreement and the parties' intentions. Id. at 517. Finding the contract to be clearly established by evidence of the parties' conduct, the court concluded the agreement should be specifically enforced. Id.
[ ] We conclude longstanding North Dakota precedent recognizes the doctrine of equitable adoption, in that our Court has repeatedly held a contract to adopt may be specifically enforced in equity. Therefore, we hold the trial court erred in concluding the doctrine is unknown to our law.
B.
[ ] Madonna recognizes our prior case law deals with contracts to adopt only in the context of inheritance law. She argues, however, that the doctrine should also apply in the domestic context of child support and child custody. We agree.
[ ] We consider instructive several cases of other courts which have considered the issue now before us. In Wener v. Wener, the court determined a divorcing husband was obligated to pay child support for a child because he agreed with his wife, who was not the child's natural mother, to adopt the child and held the child out as his own. 312 N.Y.S.2d 815, 817-18 (N.Y. App. Div. 1970). In that case, the husband supported the child during the marriage, claimed the child as his dependent on a federal income tax return, wrote a letter to his wife expressing his love for the child, and sent the child a card which he signed "Love Dad"; however the child was never formally adopted and the parental rights of its natural parents were never terminated. Id. at 817. The court stated that, " aving agreed to adopt the child and support her, and having treated her as his own prior to the parties' separation, the [husband] may not now disavow all obligation and shift the entire burden onto [his wife]." Id. at 818. See also Lewis v. Lewis, 381 N.Y.S.2d 631 (N.Y. Sup. Ct. 1976).
[ ] The Nevada Supreme Court has also imposed a child support obligation based on a contract to adopt made between spouses. In Frye v. Frye, a child's stepfather agreed with his wife to adopt her child from a previous marriage and treated the child as his own, such that the child perceived him as her own father. 738 P.2d 505, 505 (Nev. 1987). The stepfather saw an attorney regarding the adoption, effectuated the termination of the parental rights of the child's natural father, and signed a petition to adopt indicating he wished to establish a parent-child relationship. Id. The adoption, however, was never finalized, and during divorce proceedings the stepfather denied any obligation toward the child. Id. The court concluded the stepfather intended to, and promised he would, adopt the child, and in furtherance of that promise, left the child without a legal father. Id. at 506. The court concluded the doctrine of equitable adoption allowed a child support obligation to be imposed upon the stepfather, stating that "where there is a promise to adopt, and in reasonable, foreseeable reliance on that promise a child is placed in a position where harm will result if repudiation is permitted, the courts of this state stand ready to provide such remedies as equity requires." Id.
[ ] Finally, in Geramifar v. Geramifar, the Maryland Court of Appeals recently concluded the doctrine of equitable adoption could be used to compel an adoptive parent to pay child support. 688 A.2d 475 (Md. Ct. App. 1997). In that case, the parties traveled to Iran to adopt a child, promising each other and the Republic of Iran that they would care for the boy. Id. at 478. Four mo
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