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O'Neal v. Wilkes - 263 Ga. 850, 439 S.E.2d 490 (1994)


The first essential of a contract for adoption is that it be made between persons competent to contract for the disposition of the child. A successful plaintiff must also prove some showing of an agreement between the natural and adoptive parents, performance by the natural parents of the child in giving up custody, performance by the child by living in the home of the adoptive parents, partial performance by the foster parents in taking the child into the home and treating it as their child, and the intestacy of the foster parent.


O'Neal was born out of wedlock in 1949 and raised by her mother, Bessie Broughton, until her mother's death in 1957. At no time did O'Neal's biological father recognize O'Neal as his daughter, take any action to legitimize her, or provide support to her or her mother. O'Neal testified that she first met her biological father in 1970. For four years after her mother's death, O'Neal lived in New York City with her maternal aunt, Ethel Campbell. But in 1961, Ms. Campbell brought O'Neal to Savannah, Georgia, and surrendered physical custody of O'Neal to a woman identified only as Louise who was known to want a daughter. Shortly thereafter, Louise determined she could not care for O'Neal and took her to the Savannah home of Estelle Page, the sister of O'Neal's biological father. After a short time with Page, Roswell Cook and his wife came to Savannah from their Riceboro, Georgia home to pick up O'Neal because the Cooks wanted a daughter and after Page told them about O'Neal, they came for her. O'Neal, however, was never legally adopted by Cook even if he raised her and provided for her education and she resided with him until her marriage in 1975. While she never took the last name of Cook, he referred to her as his daughter and, later, identified her children as his grandchildren. Cook died intestate. During estate proceedings, the administrator of Cook's estate and refused to recognize O'Neal's asserted interest in the estate. So in December 1991, O'Neal filed a petition in equity asking the court to declare a virtual adoption, thereby entitling her to the estate property she would have inherited if she were Cook's statutorily adopted child. The administrator argued that on the ground that Page, the paternal aunt who allegedly entered into the adoption contract with Cook, had no legal authority to do so. The trial court entered judgment in favor of appellee administrator holding that Page was without authority to contract for O'Neal's adoption. 


Did a valid adoption take place?




The Supreme Court of Georgia affirmed the trial court's judgment, holding that the trial court correctly determined that Page was without authority to contract for O'Neal's adoption. The court held that in order for a contract for adoption to be valid, it must be made between persons competent to contract for the disposition of the child. The court held that the aunt, who had physical custody of appellant but was never appointed legal custodian or guardian of appellant, had no authority to contract for appellant's adoption to decedent. The court also recognized that the consent of appellant's father was unnecessary because he had never legitimized nor supported the child.

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