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The clear and convincing standard is the correct one to be applied in an action for equitable or virtual adoption. The court holds that in an action for equitable or virtual adoption, the following elements must be proved by clear and convincing evidence: (1) an agreement to adopt between the natural parents and alleged adoptive parents; (2) performance by the natural parents of the child in giving up custody; (3) performance by the child by living in the home of the alleged adoptive parents; (4) partial performance by the alleged adoptive parents in taking the child into their home and treating the child as their own child; and (5) intestacy of the alleged adoptive parents.
Appellant’s father, Nero Pender, raised two grandnieces. Pender died intestate. The grandnieces, having lived with Pender and his second wife until their subsequent marriages, filed a petition for determination of heirs and beneficiaries. The trial judge concluded after a bench trial that the grandnieces, by a bare preponderance of the evidence, established that they were equitably adopted by decedent, and thus entitled to inherit under the law of intestate succession. Appellant Roberta Williams, decedent’s daughter, appealed the order and alleged that the court used an incorrect standard of proof in deciding the issue.
Did the trial court use an incorrect standard of proof in adjudicating the case?
The court reversed the decision and remanded for further proceedings. The court held that the lower court incorrectly used the preponderance of evidence standard in deciding the equitable adoption matter. Pursuant to case law, the court determined that the clear and convincing standard should be applied in equitable adoption situations. The standard relied on by the lower court and the grandnieces was merely dictum in a previous equitable adoption action.