In your memorandum dated September 30, 1982, you asked whether Kentucky recognizes
the theory of equitable adoption and whether Kentucky recognizes a contract of equitable
adoption created by the law of a State having jurisdiction to create it. The Program
Operations Manual System (POMS) GN 00306.385 (State Laws on Equitable Adoption) addresses these issues and states Kentucky would
not recognize equitable adoption under such circumstances. Your request was prompted
by a recent decision by an administrative law judge who relied upon Radar v. Celebrezze, 253 F.Supp. 325 (E.D. Ky. 1966), in concluding that Kentucky would recognize an
equitable adoption undertaken in another State.
In order to fully appreciate the distinction between Radar v. Celebrezze, supra, and the present matter, it is necessary to discuss some of the facts and
administrative proceedings in the Radar case. In Radar, the child was born in Ohio
in 1957 to the 16-year-old stepdaughter of the insured. The insured, his wife and
his stepdaughter agreed that the insured would pay all medical and hospital expenses
incident to the child's birth provided the stepdaughter (child's natural mother) agreed
that the insured could raise the child as his own to include subsequently adopting
the child. The stepdaughter agreed. On March 22, 1966 the insured applied for disability
benefits while still domiciled in Ohio and discussed the child in that application
explaining he had not yet adopted the child because he lacked the money to do so.
However, the child had been in his care and custody since she was four days old. The
insured's application was finally approved on May 24, 1962 effective December 31,
1960. At the time of approval, however, the insured, his wife and the child had moved
from Ohio to Kentucky. The child was subsequently adopted by the insured in a Kentucky
Court on August 31, 1962. Although the insured's wife and child's applications filed
after the adoption were denied, the hearing examiner determined that the insured's
original application for disability benefits filed in Ohio constituted an application
for child's benefits as well as an application for disability benefits. It was this
original application filed while the insured was domiciled in Ohio which was the basis
for the determination favorable to the child by the hearing examiner and ultimately
the Radar court.
The hearing examiner in Radar reasoned that since the insured was domiciled in Ohio
at the time of his original application for disability benefits (which the hearing
examiner also treated as an application for child's benefits,) the laws of Ohio governed
the issue of equitable adoption, and the laws of Kentucky had no bearing and were
not applicable. The hearing examiner further found that Ohio did recognize the doctrine
of equitable adoption and that an equitable adoption had taken place in Ohio in the
year 1957. Therefore, the hearing examiner concluded that the child was entitled to
child's benefits based upon the application filed by the insured on March 22, 1961.
The Appeals Council did not accept the decision of the hearing examiner and denied
the child benefits because it concluded the applicant was not the child of the insured.
Unlike the hearing examiner, the Appeals Council applied Kentucky law to determine
the child's status.
Faced with these administrative proceedings, the Radar court held that the decision
of the Appeals Council should be reversed and set aside and that the hearing examiner's
decision should be affirmed and reinstated. In so holding, the Radar court adopted
the finding of the hearing examiner that Ohio law governed because the application
was filed in Ohio. Kentucky law was totally irrelevant in the Radar case.
Although the Radar court does discuss equitable adoption in Kentucky as dicta in response
to a statement by the Appeals Council that "the doctrine of equitable adoption is
not generally recognized in Kentucky," its cited authority is not supportive of its
conclusion on equitable adoption in Kentucky for several reasons.
First, only one of the several cases cited by the Radar court involved the concept
of equitable adoption and this was Davis v. Celebrezze, 239 F.Supp. 608 (S.D.W.Va. 1965). However, this case involved the application of
the West Virginia's law of equitable adoption where the Secretary had conceded that
such a doctrine would be recognized in West Virginia under the proper circumstances.
There was absolutely no citation or reference to any Kentucky law of equitable adoption
in Davis. The Davis case is relevant only to the application of the law of West Virginia. The other cases
cited by the Radar court (Pyle v. Fisher, 128 S.W.2d 726 (1939), Edmonds v. Tice, 324 S.W.2d 491 (1959), Moore v. Smith, 14 S.W.2d 1072 (1929)), all involve valid judgments of adoption procured pursuant
to the statutory laws of Indiana, Washington and Colorado, respectively. In each of
these cases, the Kentucky Courts followed the rule set out in Pyle v. Fisher, supra, with regard to these adoption judgments:
"the status acquired by adoption in one State will be recognized in another and the
rights of the child to inherit will be given effect as to property located in the
latter State, (Kentucky), provided such rights are not inconsistent with those incident
to the status of adoption created in such State or with the laws and policies of such
State." (P. 726)
Since the three above-mentioned States which had rendered adoption judgments and the
State of Kentucky all allow an adopted child to inherit from his adoptive parents,
these Kentucky Courts found no conflict in law or policy and recognized the foreign
adoption judgments in these cases.
Unlike these cases cited by the Radar court, the present matter concerns the concept
of equitable adoption under Kentucky law and not the question of whether Kentucky
will recognize a valid adoption judgment of a sister State. It is this distinction
which renders the Radar court's reliance upon these cases involving adoption judgments
of no persuasive value on the issue of the doctrine of equitable adoption in Kentucky.
The doctrine of equitable adoption is inconsistent with Kentucky's law and policy.
Kentucky has historically refused to recognize or enforce contracts to make a child
an heir as contrary to public policy. Davis v. Jones, 22 S.W. 331 (1893). Under Kentucky law, the legislature has determined that certain
parties can make unrelated persons heirs through strict adherence to the adoption
statute and by no other means. Davis v. Jones, supra. Additionally, Kentucky Courts specifically have refused to apply any equitable
principles in adoption proceedings. Carter v. Capshaw, 60 S.W.2d, 959 (1933); Higgason v. Henry, 313 S.W.2d, 275 (1958); Goldfuss v. Goldfuss, 565 S.W.2d 441 (1978).
The right of adoption is in force in Kentucky only by virtue of statute and such adoption
laws are intended to be comprehensive and all inclusive on the subject of adoption.
Stanfield v. Willoughby, 286 S.W.2d 908 (1940); Goldfuss v. Goldfuss, supra; Carter v. Capshaw, supra. Based on continued adherence to public policies of longstanding and the absence
of any known persuasive authority to the contrary, it is the opinion of this office
that Kentucky does not recognize the doctrine of "equitable adoption" and would not
recognize such a status even if the contract of adoption were made in some other State. Pyle v. Fisher, supra.