Most of the time, when a child is adopted, it is done through a court proceeding that requires confirmation that the parents are dead, or have agreed to surrender their rights, or had their rights terminated by the courts, and confirming the placement of the child with the proposed adoptive parent. About 40 states, however, accept that in rare cases, a child can be “equitably” adopted without going through the process, and in those cases, the child may get the rights of a child of the otherwise unofficial foster parent. This question seems to be raised most often in inheritance cases.
Washington does not recognize equitable adoption at all. If your case is in Washington, it’s not even worth discussing.
Oregon doesn’t recognize it for in-state adoption, but will accept an out-of-state equitable adoption if the state where it happens does. Analyzing a claim of equitable adoption in Oregon requires a review not only of the events, but of the law where it is claimed to have occurred.
An equitable adoption, generally speaking, is a placement of a child with a proposed parent who agrees to adopt, but doesn’t complete the process before he or she dies. (In some cases, the proposed parent doesn’t bother to start the process, for whatever reason.) When this happens, and the child is, in fact, effectively brought up as the proposed parent’s child, the child may be able to claim that he or she is effectively adopted. It does, however, take strong evidence to make the claim. Depending on the state, this may include a determination of an actual agreement, or a statement by the proposed parent that the biological parents relied on, or proof that the child was treated as an adopted child would be treated. Simply placing the child with a member of an extended family usually isn’t enough.
It should be noted that in a recent case, the Utah Supreme Court ruled that it would no longer recognize equitable adoption because it thought the state’s probate laws effectively abandoned the idea. Utah’s probate law is similar to the law in most states, so this may raise questions whether a particular state continues to accept equitable adoption.
If you think that a claim of equitable adoption may be appropriate, or if you expect one to be presented that you oppose, you should definitely discuss this with a lawyer. It’s likely to require an expensive court fight, and you should be prepared to consider the costs, benefits, and chances of success or failure before deciding whether to pursue the claim, oppose it, or settle it.