O’Neal v. Wilkes
439 S.E.2d 490 (1994)
O’Neal was born out of wedlock in 1949. When her mother died in 1957, she bounced around a few different homes (one of which was her paternal aunt, Page) until she eventually settled in with Roswell Cook and his wife, who wanted a daughter.
- O’Neal was never statutorily adopted, but was raised by the Cooks, was referred to as a daughter, and her children were referred to as his grandchildren.
- When Cook died intestate, O’Neal filed a petition in equity asking the court to declare virtual adoption.
On motion, the lower granted JNOV in favor of Wilkes, administrator of Cook’s estate:
- The paternal aunt who allegedly entered into the adoption contract with Cook had no legal authority to do so.
Whether the court correctly determined that Page was without authority to contract for O’Neal’s adoption.
- After O’Neal’s mother died, no guardianship petition was filed by her relatives, nor was there any evidence that any person petitioned to be appointed as her legal custodian.
- Thus the court characterized Page’s relationship as “not a legal obligation but a familial obligation.”
- For these reasons, she had no authority to contract for O’Neal’s adoption.
Rule: The right to consent to adoption is specifically retained by a child’s parent or guardian.
Dissent: “I would hold that where a child has fully performed the alleged contract over the course of many years or a lifetime and can sufficiently establish the existence of the contract to adopt, equity should enforce the contract over the objection of the adopting parents’ heirs that the contract is unenforceable because the person who consented to the adoption did not have the legal authority to do so.”