O’Neal v. Wilkes

The Facts

  • O’Neal was born in 1949 to Bessie Broughton, who died in 1957.
  • O’Neal’s father never recognized her as his daughter, nor did he ever legitimize her or provide support to her or her mother.
  • O’Neal first met her natural father in 1970.
  • After mother’s death in 1957, O’Neal lived with her aunt, Ethel Campbell, in NY for 4 years.
  • In 1961, Campbell took O’Neal to GA and gave physical custody to “Louise”, who wanted a daughter.
  • Louise determined she could not care for O’Neal and took her to Estelle Page, O’Neal’s natural paternal aunt.
  • Roswell Cook and his wife wanted a daughter, so Page let them have O’Neal.
  • Roswell and his wife divorced in the 1970s.
  • Roswell raised O’Neal until her marriage in 1975, though he never officially adopted her.
  • O’Neal never took the last name “Cook”, though Roswell referred to her as his daughter and her children as his grandchildren.
  • Roswell died intestate in Nov. 1991.
  • Firmon Wilkes was appointed administrator and refused to recognize O’Neal’s interest in the estate.

Procedural History

  • O’Neal file a petition to have the court declare a virtual adoption, thereby entitling her to the estate property she would have inherited if she were Cook’s statutorily adopted child.
  • A jury found for P.
  • D succeeded on a JNOV that declared the paternal aunt had no legal authority to enter into any kind of adoption with Roswell.

The Issue

Was there a valid contract to adopt Hattie O’Neal by Roswell Cook? (Did the paternal aunt have legal authority to contract for O’Neal’s adoption?)

The Rule

  • For a virtual adoption, the P must show:
    • The contract was made between persons competent to contract for the disposition of the child
    • 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
    • Intestacy of the foster parent

The Holding/Disposition

  • No, JNOV affirmed

Court’s Reasoning

  • P rightly argues that natural father’s consent was not necessary¬† as he never recognized her or legitimized her or supported her in any way.
  • A “legal custodian” in GA is a person to whom legal custody has been given by court order and who has the right to physical custody of the child and to determine the nature of the care and treatment of the child and the duty to provide for the care, protection, training, and education and the physical, mental, and moral welfare of the child.
  • A legal custodian does not have the right to consent to the adoption of a child.
  • Familial obligation resulting in a custodial relationship is not enough and is characterized as something less than a legal custodian, which would further has no right to consent to adoption.
  • Thus, the familial ratification of the contract held no legal effect


  • Virtual adoption is based on the principle of equity meaning that “equity considers that done which ought to have been done”
  • Because Roswell had taken O’Neal into his home and O’Neal had performed all the duties growing out of the substituted relationship of parent and child upon the faith that the foster parent stands in loco parentis and that upon his death O’Neal will sustain the legal relationship to his estate of a natural child, O’Neal should be able to appeal to a court of equity to consummate Roswell’s omission of duty in the matter of a formal adoption.
  • The adopting parents and probably their heirs know of the defect in the contract and yet voice no objection to the contract while the child fully performs the contract and the adopting parents reap the benefits thereof
  • To now hold the contract unenforceable is to permit a virtual fraud against the child and should not be countenanced in equity
  • The purpose of requiring consent by a person with the legal authority to consent to an adoption, where such a person exists, is to protect that person, the child, and the adopting parents.
  • Since this arises out of the death of the adopting parents, the interests of the person with the right to consent and of the adopting parents are not in jeopardy.
  • However, the interests of the child are now unfairly and inequitably harmed
  • Where there is no person w/ the legal authority to consent to the adoption, such as in O’Neal’s case, the only reason to insist that a person be appointed the child’s legal guardian/custodian before agreeing to the contract to adopt would be for the protection of the child

Equity ought to intervene on the child’s behalf in these types of cases and require the performance of the contract is it is sufficiently proven.

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