Professor Michael T. Flannery on Adult Adoption

Professor Michael T. Flannery on Adult Adoption


In this commentary, Professor Michael T. Flannery of the University of Arkansas Law School writes on the variety of reasons why an adult client may wish to adopt another adult (or be adopted as an adult). Two examples are to formalize an existing parent-child relationship or to secure inheritance rights for the adoptee. Professor Flannery writes:
 
     Although most states that recognize adult adoptions provide for some formality, some states prohibit adult adoptions based on the underlying policy of general adoption statutes--to promote and integrate family relationships. In interpreting these statutes, many courts prohibit adult adoptions when the basis for the adoption is not to fulfill this purpose, but rather is designed to establish some right or benefit that is not otherwise afforded to the parties. These policy considerations generally arise in two contexts: (1) same-sex party adoptions, in which parties seek to acquire, through adoption, marital rights that are not otherwise afforded to same-sex couples; and (2) trust beneficiary cases, in which parties seek to establish the adoptee as a qualified trust beneficiary when he or she would not otherwise be entitled to benefit from the trust. Again, state statutes--and court interpretations of such statutes--vary significantly in these contexts.
 
     Often, same-sex couples seek to adopt to acquire benefits not otherwise provided to such couples due to prohibitions on marriage. Notwithstanding fundamental issues of the right of same-sex parties to adopt, generally, some states prohibit adult adoptions in this context because of general public policy concerns that intimacy and sexuality are repugnant to the concept of parent-child relationships, regardless of age (the same issue would arise for heterosexual couples). Thus, to establish parent-child relationship status when the relationship is based on intimacy rather than a familial bond and the integration of familial rights and benefits, runs contrary to the purpose for which adoption statutes are generally applied. In fact, in providing for adult adoptions, several states expressly require that the parties must have established a functional parent-child relationship prior to seeking adoption. Whereas, typically, same-sex and otherwise intimate couples have not established such a functioning parent-child relationship, they are generally prohibited from acquiring parent-child status through adoption. But even in jurisdictions in which there is no such statutory requirement of a pre-existing parent-child bond, courts have varied in the application of general adoption statutes in this context.
 
     For example, in In re Adoption of Adult Anon., 106 Misc. 2d 792, 435 N.Y.S.2d 527 (N.Y. Fam. Ct. 1981), a 26 year-old man adopted his 22 year-old same-sex partner for purposes of securing inheritance rights, insurance benefits, and other interests. In granting the adoption, the court held that even though there may have been other means of securing these rights, if the parties met the statutory requirements, the adoption should be granted as the equivalent of entering any other civil contract grounded in public policy, as distinguished from public morality. Likewise, in In re Adult Anon. II, 88 A.D.2d 30, 452 N.Y.S.2d 198 (N.Y. App. Div. 1982), the Supreme Court of New York reversed an order denying the adoption of a 43 year-old male by his 32 year-old same-sex partner. The primary reason for seeking the adoption was to secure housing rights that required that parties be immediate family members to remain on the lease. In granting the adoption, the court recognized that adoption may serve as a legal mechanism for achieving "economic, political and social objectives rather than the stereotypical parent-child relationship." Thus, the court found that the adoption was not a fraudulent attempt to circumvent statutory prohibitions on specific relationships, but rather fulfilled the historic purpose of adoptions.
 
(citations omitted)