Neither the Illinois Adoption Act nor caselaw address whether a child may be jointly adopted by more than two people. However, it is not precluded by the Illinois Adoption Act and, with respect to another jurisdiction, OGC opined that a child could be entitled to child’s benefits under circumstances similar to those at issue here.  We believe such an adoption is valid and the child is entitled to child’s benefits on the record of the grandfather, as his adopted child, provided all other requirements are satisfied.

You asked whether an adoption of a minor child by the child’s maternal grandparents and biological father is valid under Illinois law, such that the child could be entitled to child’s benefits on the record of the grandfather, as his adopted child. We believe for the reasons stated below that such an adoption is valid and the child is entitled to child’s benefits on the record of the grandfather, as his adopted child, provided all other requirements are satisfied.

BACKGROUND

The Judgment of Adoption (“Judgment”), filed May 11, 2011, from the Circuit Court of the Seventh Judicial Circuit, Sangamon County, Illinois, sets out much of the background in this case.  It states that B. J. G., a minor child, was born to Victoria G~ and Sean G~ in February 2008, but has resided continuously with Robert and Debra G~. You explained that Robert and Debra G~ are B.J.G.’s maternal grandparents.  The Judgment states that Victoria G~ died in March 2010. It states that an interim order was issued in April 2011 that terminated the parental rights of Sean G~ and granted temporary custody of B.J.G. to the petitioners.  The Judgment decreed that B.J.G. was the adopted child of the petitioners, and for the purposes of inheritance and all other legal incidents and consequences was their child as if born to them. You explained that Sean G~ is not married and was included in the adoption of B.J.G. because he did not want his parental rights to be terminated. You stated that on May 19, 2011, Robert G~, who is entitled to disability insurance benefits (“DIB”), filed an application for child’s benefits on B.J.G.’s behalf.

DISCUSSION

To be entitled to child's insurance benefits on the account of an insured person who is receiving DIB, a child under age 18 must (a) meet the regulatory definition of the insured person’s child; (b) be dependent on the insured person; (c) be unmarried; and (d) file an application. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350. A child whom the insured person has legally adopted meets the definition of “child”. 20 C.F.R. § 404.356. The laws of the state where the adoption took place are used to determine whether the adoption was legal. Id.  For that reason, Illinois law determines whether B.J.G. is Robert G~’s legally adopted child for purposes of receiving child’s insurance benefits on his account. If the adoption was legal, B.J.G. would be deemed dependent on Robert G~ because he was under 18 at the time of the adoption proceedings, and the adoption was issued by a court of competent jurisdiction within the United States. 42 U.S.C. § 402(d)(8); 20 C.F.R. §404.362(b)(I); POMS GN 00306.137. 

The Illinois Adoption Act (“Adoption Act”) permits adoption of a minor child by a reputable person of either sex who is of legal age and not under a legal disability. 750 ILCS §§ 50/2 and 50/3. The Adoption Act expressly permits adoptions where the adopting parent is the child's biological parent or grandparent. 750 ILCS § 50/1(B). A biological parent may preserve her parental rights and also consent to an adoption by another person by joining with the other person in a petition to adopt. 750 ILCS § 50/8; In re Petition of K.M. & D.M., 653 N.E.2d 888, 898 (Ill. App. Ct. 1995).

An Illinois appellate court has held that “the [Illinois Adoption] Act must be construed to give standing to unmarried persons . . . regardless of sex or sexual orientation, to petition for adoption jointly,” Petition of K.M. & D.M., 653 N.E.2d at 899. Therefore, Illinois recognizes adoptions where adoptive parents are of the same gender and are not married to each other.  However, if an adopting parent is married at the time of the adoption, both spouses must be party to the adoption proceedings, unless the adopting parent “has . . . been living separate and apart from his or her spouse for 12 months or longer.”  750 ILCS § 50/2(a); Petition of K.M. and D. M., 653 N.E.2d at 893.

The only issue in this case is whether an adoption is valid in Illinois if there are more than two adopting parents. Although not controlling with respect to Illinois law, a precedential opinion from OGC Region VIII regarding a very similar issue in Colorado is instructive in this case.  In POMS PR 01310.007, we opined that Colorado law does not prohibit the adoption of a child by a woman, her mother, and her father. Therefore, we found that the woman’s father was the adopted child’s father for purposes of entitlement to child’s benefits.

As was the case in Colorado, there is neither a statutory provision nor caselaw prohibiting three people from adopting a child in Illinois.  As with the Colorado statute, the Illinois Adoption Act addresses only who may adopt and whom may be adopted, with no discussion of how many people may adopt. Indeed, the relevant statutory provisions are similar in many respects. Compare Colo. Rev. Stat. §§ 19-5-201 and 19-5-202 with 750 ILCS § 50/2, 50/3.

Although there is apparently no controlling caselaw in Illinois, Petition of K.M. & D.M. addresses the possibility of more than two people petitioning to adopt a child in Illinois, and did not find that it would be precluded. The issue in Petition of K.M. & D.M. was whether two unmarried same-sex cohabitants had standing to jointly petition for adoption. The court noted that the statute provided at 750 ILCS § 50/1(G) that statutory terms expressed in the singular were also to be construed as plural. Petition of K.M. & D.M., 653 N.E.2d at 196. It also noted that 750 ILCS § 50/20 states that the statute shall be interpreted liberally. Id. at 194.  The court therefore interpreted 750 ILCS § 50/2 to mean that same-sex cohabitants could jointly adopt and rejected the lower court’s interpretation that a couple must be married to adopt. Id. at 199. 

The court acknowledged the concern that its interpretation would give standing in adoption proceedings to any group that considered itself a family where one or more of the members was related to the child. Id. at 201. However, the court stated that the circuit court retained the safeguard of evaluating whether the granting of such a petition would be in the best interests of the child, which would prevent detrimental family arrangements. Id. Although not controlling, the court’s discussion indicates that the Adoption Act would permit the adoption of a child by his biological father and maternal grandparents.

A portion of the Adoption Act appears to suggest that only two people may adopt a child. Specifically, 750 ILCS § 50/1(B) defines “related child” to mean a child subject to adoption where either or both of the adopting parents stands in any one of several relationships to the child. Although the words “either or both” may be construed to limit the number of adopting parents to two, we do not believe that this is the best reading.  If the language were deemed controlling, it would mean that only two people could adopt a child, as opposed to one person adopting a child alone. This plainly conflicts with 750 ILCS § 50/2, which establishes who may adopt, and does not preclude adoption by a single individual. Furthermore, 750 ILCS § 50/1(B) focuses on defining “related child,” as opposed to defining an adopting parent, which diminishes its usefulness in determining who may adopt.  Finally, the court in Petition of K.M. & D.M. addressed the Adoption Act and plainly contemplated a circumstance wherein more than two people would be permitted to adopt. 

CONCLUSION

Neither the Illinois Adoption Act nor caselaw address whether a child may be jointly adopted by more than two people.  However, it is not precluded by the Illinois Adoption Act and, with respect to another jurisdiction, OGC opined that a child could be entitled to child’s benefits under circumstances similar to those at issue here. In addition, although not controlling, Illinois caselaw indicates that the Adoption Act would permit the adoption of a child by his father and maternal grandparents. 

Grace M. K~

Regional Chief Counsel, Region V

By:______________

Russell C~

Assistant Regional Counsel

When an adopting parent in Illinois is married, the adopting parent's spouse must be both a party to the adoption proceedings and a jointly adopting parent. If not, the adoption is invalid.

You asked whether, under Illinois law, if an adopting parent is married, the parent's spouse must also be an adopting parent, or whether it is sufficient if the spouse is simply a party to the adoption proceedings. We conclude that, under Illinois law, when an adopting parent is married, the adopting parent's spouse must be both a party to the adoption proceedings and an adopting parent. If both conditions are not met, the adoption is invalid.

BACKGROUND

In 1999, an Illinois court entered a judgment of adoption of Madalynn R. M~ a/k/a Madalynn R. M~ by her single mother, Patricia L. M~, and Ms. M~'s father, Eddie L. M~. At that time, Mr. M~ was married to Sandra M~. Sandra was a party to the adoption proceedings, but was not an adopting parent. You advised that Mr. M~ had not been separated from Sandra at the time of the adoption.

DISCUSSION

You noted that one precedential opinion states that, under Illinois law, if an adopting parent is married, the parent's spouse must be a party to the adoption proceedings, while another precedential opinion states that the adopting parent's spouse must jointly adopt the child. You asked which one of these provisions correctly states Illinois law. Technically, both opinions are correct. If an adopting parent is married, his or her spouse must be both a party to the adoption proceedings and must also jointly adopt the child. This conclusion flows naturally from the plain language of the governing statute: § 2. Who may adopt a child . . . (a) A reputable person of legal age and of either sex, provided that if such person is married and has not been living separate and apart from his or her spouse for 12 months or longer, his or her spouse shall be a party to the adoption proceeding, including a husband or wife desiring to adopt a child of the other spouse, in all of which cases the adoption shall be by both spouses jointly[.] We have researched the caselaw, and find nothing that suggests otherwise. We also verified that this law was in effect in 1999, when the M~ adoption took place. Here one of the adopting parents (Mr. M~) was married and was not living separate from his spouse. His spouse (Sandra M~), although a party to the adoption proceedings, was not an adopting parent. Therefore, Madalynn's adoption is invalid.

CONCLUSION

When an adopting parent in Illinois is married, the adopting parent's spouse must be both a party to the adoption proceedings and a jointly adopting parent. If not, the adoption is invalid. Therefore, the adoption in this case was not valid.

Donna L. C~

Regional Chief Counsel, Region V

By:______________

Charles R. G~

Assistant Regional Counsel

Illinois courts may recognize an adoption in a foreign county that is not valid in that country under the theory of equitable adoption. Since Illinois recognized the child as the legally adopted child of the NH, an evaluation of Philippines law is unnecessary. Further development to determine whether records of the court or official notice provides evidence of legal adoption in Illinois is recommended. If additional evidence is obtained, the adoption may be found valid. Additional development to assess the child's relationship with the insured in order to determine the existence of a parent/child relationship, and find the adoption to be valid under the theory of equitable adoption should be undertaken

You requested an opinion regarding whether the adoption of a child in the Philippines was a valid adoption under the law of the jurisdiction where the adoption took place; and whether Illinois would recognize such adoption. We believe that there has been a valid Illinois adoption, but advise the Agency to obtain additional verifying documentation. Alternatively, we conclude that the Philippine adoption would likely be considered valid in Illinois based on the theory of equitable adoption, although we recommend that the Agency obtain additional statements.

BACKGROUND

Kristine A. O. D. C~ (Kristine) was born on May 25, 1990, in Paco, Manila, in the Republic of the Philippines. According to an Agency contact note, Kristine's parents died, and she was living with her grandfather, who was the brother of Dolores L~. Dolores L~, and her husband, David L~, who lived in the United States, decided to adopt Kristine. They completed required paperwork which they sent to the Philippines. Dolores L~ also attended two court hearings in the Philippines regarding the adoption, one of which was held on June 11, 1993.

On November 3, 1993, the Regional Trial Court for the Republic of the Philippines in Manila issued a decision in which Kristine was judicially declared the legally adopted child of the petitioners, Dolores L~ and David L~. The Court indicated that the petitioners had fully complied with the jurisdictional requirements, and it ordered an amendment to the Birth Certificate of Kristine to conform to the decree of adoption.

An amended Birth Certificate, dated December 3, 1993, from the Republic of the Philippines, indicated Dolores L~, United States Citizen, as Kristine's mother, and David L~, United States Citizen, as Kristine's father.

The evidence provided contains a State of Illinois Record of Foreign Birth issued by the Department of Public Health - Division of Vital Records on June 3, 2002. The document indicates that Kristine A. D. C~ L~, born on May 25, 1990, in Manila, Philippines, is the child of David L~ and Dolores D. C~ (maiden name).

Dolores L~ became entitled to retirement benefits effective January 2004, based on a January 2004 application. At the same time, Dolores filed a claim for child's insurance benefits on behalf of Kristine L~.

On October 16, 2003, Ms. G~ filed a claim for child's insurance benefits on behalf of Steven, on the account of Ms. L~, his adoptive mother and biological grandmother.

DISCUSSION

In order to be eligible for child's insurance benefits (CIB) on a wage earner's account, a claimant must show that she is the wage earner's child. 42 U.S.C. §§ 402(d), 416(e); 20 C.F.R. § 404.350. The regulations define a child as a natural child, legally adopted child, stepchild, grandchild, or equitably adopted child. 20 C.F.R. § 404.354. In order to determine whether a claimant is a legally adopted child, SSA applies the adoption laws of the State or foreign country where the adoption took place. 20 C.F.R. § 404.356.

In addition, a claimant may be eligible for CIB as an equitably adopted child if the insured individual agreed to adopt the child but the adoption did not occur. The agreement to adopt must be one that State law would recognize so that the claimant would be eligible to inherit a child's share of the insured's personal property if the insured were to die intestate. 20 C.F.R. § 404.359.

As explained below, it appears that the State of Illinois recognized Kristine as the legally adopted child of Dolores and David L~; therefore, an evaluation of Philippines law is unnecessary. In addition, it appears that even if this adoption did not conform with the adoption laws of Illinois (or the Philippines), Kristine may still be eligible for benefits as an equitably adopted child.

A. If Additional Development Supports the Existence of an Illinois Judgment of Adoption, This Adoption Should Be Considered Valid Under State Law.

According to Illinois Law,

When it appears from a certificate of adoption transmitted to the State Registrar of Vital Records, pursuant to the provisions of Section 16 of this Act, that the child was born outside of the United States or its Territories, then, upon submission to the State Registrar of Vital Records of evidence as to the child's birth date and birthplace provided by the original birth certificate, or by a certified copy, extract, or translation thereof or by other document essentially equivalent thereto (the records of the U.S. Immigration and Naturalization Service or of the U.S. Department of State to be considered essentially equivalent thereto), the State Registrar of Vital Records shall make and file a Record of Foreign Birth. The Record of Foreign Birth shall include the actual place and date of birth, the child's name and parentage as ordered in the judgment of adoption and any other necessary facts.

410 Ill. Comp. Stat. Ann. 535/16.1(2002) (emphasis added). In the present case, a Record of Foreign Birth was issued by the State of Illinois on June 3, 2002. Thus, based on the language of the statute, it can be presumed that a certificate of adoption was transmitted to the State Registrar of Vital Records in order for that office to issue the Record of Foreign Birth. Also, it can be presumed that a judgment of adoption had been ordered.

Section 16, which is referenced in the above statute, states:

For each adoption ordered by any court in this State, the clerk of the court shall promptly furnish the State Registrar of Vital Records a certificate of adoption on a form prescribed and furnished by the State Registrar of Vital Records. The record shall include all facts necessary to locate and identify the original certificate of live birth of the person adopted and provide information necessary to establish a new certificate of birth, shall include the social security numbers of the adoptive parents, and shall identify the judgment of adoption and be certified by the clerk of the court.

410 Ill. Comp. Stat. Ann. 535/16 (2002). In reading these two statutory sections together, a court in Illinois would have had to chronologically first issue a judgment of adoption in order for the Record of Foreign Birth to be issued.

Although the evidence we were provided does not include an Illinois judgment of adoption, when we contacted the claimant's attorney, she informed us that she believed a judgment of adoption was entered by an Illinois court on May 16, 2002. As this information appears to be consistent with the procedures outlined in the statutes above, it seems likely that a judgment of adoption was issued by an Illinois court in this matter. Because we have not received this document, the Agency may want to contact Dolores L~ for any court records she may have or the official notice she received from the Illinois court. Pursuant to POMS GN 00306.155, however, the Agency should be cautious not to directly solicit a copy of the adoption decree. Assuming this information indicates Dolores L~ to be the mother of Kristine L~, pursuant to an Illinois adoption, the Agency should find that Kristine was legally adopted pursuant to the laws of the state of Illinois, as an Illinois court recognized the adoption as valid and issued a judgment of adoption. Accordingly, Kristine would then be eligible for CIB on Dolores L~'s account.

B. If Additional Development Supports the Existence of Parent/Child Relationships Between Dolores L~ and Kristine L~, Illinois May Alternatively Give Legal Effect to the Adoption Under the "Equitable Adoption" Theory.

Assuming that the Illinois judgment of adoption is not forthcoming, we cannot determine without further inquiry into the 1993 adoption laws of the Philippines, whether Kristine's adoption was valid under Philippine law. However, Kristine may nonetheless be entitled to CIB as the equitably adopted child of Dolores L~.

Pursuant to 20 C.F.R. § 404.359,

You may be eligible for benefits as an equitably adopted child if the insured has agreed to adopt you as his or her child but the adoption did not occur. The agreement to adopt must be one that would be recognized under State law so that you would be able to inherit a child's share of the insured's personal property if he or she were to die without leaving a will.

Thus, the basis for equitable adoption is an express or implied contract to legally adopt the child, generally a contract between the adopting parents and the child's natural parents or the person or agency having custody and control of the child. POMS GN 00306.180A.1. As we have previously advised, Memorandum from Regional Chief Counsel, Chicago, to Assistant Regional Commissioner - Management and Operations Support, Chicago, MOS-Foreign Adoption - Validity of adoption in India by parent domiciled in Illinois, (March 25, 2003), Illinois courts may recognize an adoption in a foreign country that is not valid in that country under the theory of equitable adoption.

A review of Illinois case law reveals that Illinois courts have applied contract law to determine whether there was a valid and enforceable contract to adopt in those cases in which an adoption is alleged, but the statutory adoption procedures have not been followed. See In Re Estate of Edwards v. Edwards, 435 N.E.2d 1379, 1381 (Ill. App. 3d 1982).

In accordance with contract law, Illinois has recognized equitably adopted children as legitimate heirs for the purpose of intestate succession. In Dixon National Bank v. Neal, 125 N.E.2d 463 (Ill. 1955), the Illinois Supreme Court observed: "it has become the settled rule of law that to be entitled to a decree for specific performance of a contract for adoption it is necessary that the contract be proved as alleged by evidence that is clear and convincing." The court determined that the common thread among Illinois cases in which contracts to adopt were found valid for the purpose of determining intestate succession was the existence of either a written memorandum of the alleged agreement to adopt, or the testimony of a surviving witness who was present and heard the making of the agreement to adopt. 125 N.E.2d at 465, citing Weiss v. Beck, 115 N.E.2d 768, 772 (Ill. 1953). Further, the D~ court expressly noted that "in some jurisdictions an invalid adoption proceeding has been enforced as a valid contract to adopt." 125 N.E.2d at 466.

In Winkelmann v. Winkelmann, 178 N.E. 118 (Ill. 1931), appellee sought a decree that she was the legally adopted daughter of W~, who died intestate, and entitled to inherit his personal property. The court concluded that an agreement to adopt was made because W~ thought he had adopted the appellee and that he had complied with the law in that respect; W~ treated the appellee as his daughter; the appellee bore W~'s name; W~ took care of the appellee the same as he would his own daughter; and the appellee treated W~ as her father. Furthermore, the terms of the contract to adopt were reasonable, clear, and specific; the contract was not repugnant to public policy; and the surrender of the child to W~ by her natural father was a valuable consideration for the contract. 178 N.E. at 121. See also Monahan v. Monahan, 153 N.E.2d 1, 4 (Ill. 1958) (where oral contract to adopt was "clearly established" and "fully performed" by the adopted child, "to allow the contract to remain unenforced is unfair, unjust, and inequitable."). In M~, the court found clear and convincing evidence of a contract based on evidence that the M~ attempted to consult an attorney when the child was seven years old, but mistakenly believed they needed the father's consent and were unable to locate him; the M~ and the child referred to each other as "Son" and "Mom and Dad;" many relatives believed the child had been adopted by the M~; the child conducted himself as a dutiful child; the M~ held themselves out as the child's parents; the M~ indicated to others that the child's natural mother had given the child to them to adopt and agreed to execute any necessary consent. 153 N.E.2d at 2-4.

Even an agreement signed by only the natural parent and the institution placing the child, but not by the adoptive parents, was found to create a valid contract to adopt when considered together with circumstances which otherwise tended to show the existence of a parent/child relationship. Soelzer v. Soelzer, 47 N.E.2d 458 (Ill. 1943). However, in a case where no money or other consideration was received for raising the child, no agreement to adopt was alleged, and no attempt to legally adopt was asserted, an Illinois court declined to find a valid contract to adopt. See, e.g., Estate of Staehli v. LaRaviere, 407 N.E.2d 741, 744 (Ill. App. 3d 1980). Thus, Illinois courts have generally examined the nature of the relationship between the purported adopted child and the purported adoptive parent in determining the validity of an alleged contract to adopt.

The cases discussed above suggest that the decision issued by the Regional Trial Court of the Republic of the Philippines would constitute persuasive evidence of a valid contract to adopt Kristine L~. See Memorandum from Regional Chief Counsel, Chicago, to Assistant Regional Commissioner - Management and Operations Support, Chicago, MOS-Foreign Adoption - Validity of adoption in India by parent domiciled in Illinois, at 5 (March 25, 2003), According to the Regional Trial Court decision, the court expressly stated that the petitioners had "fully complied with all the jurisdictional requirements;" and the court judicially declared Kristine legally adopted by Dolores and David L~. Further, as Kristine left the home of her grandfather in the Philippines (her parents were deceased, and she was in the care of her grandfather), and returned to the United States with the L~s in accordance with the adoption decree, such appears to be sufficient consideration to support the existence of a contract to adopt. See Dixon National Bank, 125 N.E.2d at 467. Further, Kristine's birth certificate in the Philippines was amended to reflect Dolores and David L~ as Kristine's mother and father; Kristine's last name was changed to L~; and the L~s participated in court proceedings in Illinois to have a Record of Foreign Birth issued, which also reflected them as Kristine's mother and father. Illinois courts would likely consider these factors to support a valid contract to adopt. However, with regard to an important consideration to Illinois courts, we have no information addressing the nature of Kristine's relationship with Dolores L~ and whether friends and/or relations generally regarded her as Dolores L~'s legally adopted child. We recommend that such additional information be obtained before a final determination as to the validity of Kristine's adoption under Illinois law can be made under the theory of equitable adoption. Provided that the information developed on this issue supports the existence of a parent/child relationship, we believe Illinois would recognize the adoption of Kristine L~ to be valid under the theory of equitable adoption, such that she could be entitled to benefits.

CONCLUSION

Assuming that additional evidence is obtained, the adoption in the instant case may be found valid, such that Kristine could be entitled to benefits on the account of Dolores L~. We recommend that further development should be undertaken in order to determine whether records of the court or official notice provides evidence of legal adoption in Illinois, such that the adoption in question may be considered valid. Alternatively, further development should be undertaken to assess Kristine's relationship with Dolores L~ in order to determine the existence of a parent/child relationship and find the adoption to be valid under the theory of equitable adoption.

The adoption of a minor child by the child's biological mother and maternal grandmother was valid under Illinois law and created a co-parent relationship. The adoption was valid because the grandmother was divorced, and the mother had been living apart from her husband for more than a year. The fact that the adopting parents maintained separate households at the time of the adoption does not bar a finding of a valid adoption.

You asked whether an adoption of a minor child by the child's biological mother and maternal grandmother was legal and created a co-parent relationship under Illinois law. We conclude that the adoption was valid because the grandmother was divorced, and the mother had been living apart from her husband for more than a year.

BACKGROUND

Wage earner Patricia A. L~ is the mother of Bridgit R. G~ (n. G~). Ms. L~ has been divorced since 1982 (L~ Statement of 3/16/04). She became entitled to disability insurance benefits (DIB) in September 1989.

Bridgit married James G~ in May 1997, and remains married to him (B. G~ Statement of 3/16/04). However, James was incarcerated in 2000, and Ms. G~ has lived apart from him since that date. On April 9, 2002, Ms. G~ gave birth to Steven C. A. W~. On Steven's birth certificate, the father's name was left blank. However, Lawrence J. W~ later acknowledged that he was Steven's father, and James G~ has affirmed that he is not Steven's father (B. G~ Statement of 3/16/04).

On August 20, 2003, Ms. L~ and Ms. G~ filed a verified Petition for Adoption ("Petition") with the Seventh Judicial Circuit Court in Jersey County, Illinois ("Circuit Court"), stating that they wished to adopt Steven as co-parents (Petition). On October 6, 2003, the Circuit Court issued a Judgment for Adoption ("Judgment"), which granted Ms. L~'s and Ms. G~'s Petition, and changed Steven's name to Steven C. A. G~ (Judgment of 10/6/03). The Judgment stated that Lawrence W~ filed a final and irrevocable consent to the adoption on September 11, 2003, and that the adoption terminated Lawrence's parental rights (Judgment 9 & Order A). The Judgment also stated that Ms. G~ consented to the adoption of her biological child by her mother, Ms. L~ (Judgment 10). The Judgment ordered that Steven "shall be to and for all legal intents and purposes, the child of the Petitioners, Bridgit R. G~ and Patricia A. L~, daughter and mother; and for purposes of inheritance and all other legal incidents and consequences, it shall be the same as if the child had been born to the Petitioners" (Judgment Order B).

On October 16, 2003, Ms. G~ filed a claim for child's insurance benefits on behalf of Steven, on the account of Ms. L~, his adoptive mother and biological grandmother.

DISCUSSION

To be entitled to child's insurance benefits on the account of a wage earner who is receiving DIB, a child under age 18 must (a) meet the regulatory definition of "child;" (b) be dependent on the wage earner; (c) be unmarried; and (d) file an application. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350. A child whom the wage holder has legally adopted meets the definition of "child." 20 C.F.R. § 404.356. The laws of the state where the adoption took place are used to determine whether the adoption was legal. Id. For that reason, Illinois law determines whether Steven is Ms. L~'s legally adopted child for purposes of receiving child's insurance benefits on her account. If the adoption was legal, Steven would be deemed dependent on Ms. L~ because he was under 18 at the time of the adoption proceedings, and the adoption was issued by a court of competent jurisdiction within the United States. 42 U.S.C. § 402(d)(8); 20 C.F.R. §404.362(b)(i); POMS GN 00306.137.

The Illinois Adoption Act permits a reputable person or persons of either sex to adopt a minor child, as long as they are of legal age and not under a legal disability. 750 ILCS § 50/2, 50/3. The Adoption Act expressly permits adoptions where the adopting parents are the child's biological parent and grandparent. 750 ILCS § 50/1(B). A biological parent may preserve her parental rights and also consent to an adoption by another person by joining with the other person in a petition to adopt. 750 ILCS § 50/8; In re Petition of K.M. & D.M., 653 N.E.2d 888, 898 (Ill. App. Ct. 1995). Thus, as the Circuit Court acknowledged (Judgment 10), the fact that Ms. G~ joined with Ms. L~ in the verified Petition to adopt Steven constitutes her consent to the adoption.

Illinois courts hold that "the [Illinois Adoption] Act must be construed to give standing to unmarried persons . . . regardless of sex or sexual orientation, to petition for adoption jointly," Petition of K.M. & D.M., 653 N.E.2d at 899. Therefore, Illinois recognizes adoptions where both adoptive parents are of the same gender and are not married to each other. However, if an adopting parent is married at the time of the adoption, both spouses must be party to the adoption proceedings, unless the adopting parent "has . . . been living separate and apart from his or her spouse for 12 months or longer." 750 ILCS § 50/2(a); Petition of K.M. and D. M, 653 N.E.2d at 893.

The record in this case indicates that at the time of Steven's adoption in October 2003, Ms. L~ was 53 years old and unmarried, having been divorced since 1982. Ms. G~ was 25 years old and married, but had been living apart from her husband since his incarceration in 2000. The Judgment of Adoption expressly stated that Ms. L~ and Ms. G~ were both of legal age and under no legal disability (Judgment 5), and were "reputable persons with the character, ability, and means to rear, nurture and educate [Steven] in a suitable and proper manner" (Judgment 11). Consequently, both were eligible to adopt under Illinois law. See POMS PR 04-046, Memorandum from Regional Chief Counsel, Chicago, to Assistant Regional Commissioner, MOS-Illinois-Validity of Adoption by Natural Mother and Grandmother to Establish a Co-Parent Relationship, (Dec. 15, 2003). The only anomaly in this case is that, at the time of Steven's adoption, Ms. L~ and Ms. G~ maintained separate households (Petition 2). Illinois case law occasionally refers to the right of unmarried cohabitants of the same gender to petition jointly for adoption. Petition of K.M. and D.M., 724 Ill. App. 3d at 189, 653 N.E.2d at 888. However, because the Adoption Act itself contains no provision requiring that adoptive parents be cohabitants, we conclude that any reference in the case law to "cohabitants" is dicta rather than a prerequisite to adoption. Therefore, we conclude that Steven's adoption by Ms. L~ and Ms. G~ is valid under Illinois law.

CONCLUSION

We conclude that Steven's adoption by Patricia L~ and Bridgit G~ is legal under Illinois law. Our conclusion is based on the assumption that the evidence in the record is correct, and that Ms. L~ was unmarried (divorced), and Ms. G~ had been living apart from her husband for more than 12 months at the time of the adoption.

The adoption of a minor child by the NH (the child's grandmother) and the child's biological mother is legal under Illinois law, assuming that both women were unmarried, or if married, had been separated from the husband for at least 12 months.

You asked about the legality of a judgment of adoption filed in Perry County, Illinois granting the adoption of minor child Cheyenne H~ by Anna F. D~ (Cheyenne's grandmother) and Yolonda T. H~ (Cheyenne's biological mother). We conclude that the adoption is legal under Illinois law. Our conclusion is premised on the assumption that, on the date of the adoption, Ms. H~ and Ms. D~ were both unmarried or, if married, had been separated from the husband(s) for at least 12 months.

BACKGROUND

Wage earner Anna F. D~ became entitled to disability insurance benefits (DIB) in December 2000. Ms. D~ subsequently filed a claim for child's insurance benefits on her earnings record on behalf of her granddaughter, Cheyenne H~. Cheyenne's date of birth is December 9, 1999.

The information you provided indicates that Cheyenne does not qualify for child's insurance benefits as Ms. D~' granddaughter because Cheyenne's natural parents are not disabled or deceased. See 20 C.F.R. § 404.358.

On March 28, 2003, however, the Perry County, Illinois court issued a Judgment of Adoption, which states that Ms. D~ and Yolonda H~ (Cheyenne's biological mother and Ms. D~' daughter) adopted Cheyenne. The judgment terminates the parental rights of Cheyenne's biological father. It orders that Cheyenne "shall be to all intents and purposes, the child of the Petitioners, Anna F. D~ and Yolonda T. H~, mother and daughter, and for purposes of inheritance and all other legal incidents and consequences, it shall be the same as if the child had been born to the petitioners in lawful wedlock." An amended birth certificate, issued April 23, 2003, shows Yolonda T. H~ and Anna F. D~ as Cheyenne's "co-parents."

DISCUSSION

To be entitled to child's insurance benefits on the account of a wage earner who is receiving RIB or DIB, a child under age 18 must meet the regulatory definition of "child," be dependent upon the wage earner, be unmarried, and file an application. 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350. A legally adopted child of the wage earner meets the regulatory definition of "child." 20 C.F.R. § 404.356. In determining whether a child is the wage earner's legally adopted child, the applicable law is the law of the State where the adoption took place. Id. Thus, Illinois law determines whether Cheyenne is Ms. D~' legally adopted child for purposes of entitlement to child's insurance benefits on Ms. D~' account. If the adoption is legal, Cheyenne would also meet the dependency requirement because she was under age 18 at the time of the adoption proceedings and the adoption was decreed by a court of competent jurisdiction. 42 U.S.C. § 402(d)(8); 20 C.F.R. § 404.362(b)(1); POMS GN 00306.137.

The Illinois Adoption Act permits adoption of a minor child by a reputable person of legal age and of either sex who is not under a legal disability. 750 ILCS 50/2, 50/3 (West 1999). Although the singular "person" is used, the act provides that use of the singular includes the plural. 750 ILCs 50/1 (West 1999, West 2003 Supp.). An adoptive parent need not be married, but if an adopting parent is married and has not been separated from his/her spouse for at least 12 months, both spouses must jointly adopt the child. 750 ILCS 50/2 (West 1999). In re Petition of K.M. and D.M. et al., 653 N.E. 2d 888, 893 (Ill. App. 1995). The Judgment of Adoption in this case recites that Ms. D~ and Ms. H~ are both of legal age, under no disability, and "reputable persons with character, ability, and means to rear, nurture and education the child in a suitable and proper manner." Judgment of Adoption at paras. 4, 9.

The Judgment of Adoption also recites that Cheyenne's biological father's parental rights were terminated and that he executed an irrevocable consent to the adoption. Judgment of Adoption at paras. 8, A. In Illinois, a biological parent may preserve her parental rights and also consent to an adoption by another person by joining with the other person in a petition to adopt. In re Petition of K. M. and D.M. et al., 654 N.E. 2d at 898. Ms. H~' consent to the adoption is evidenced by the fact that she joined with Ms. D~ in the petition to adopt Cheyenne. See 750 ILCS 50/8(B)(5) (West's S~ H~ 1999 and 2003 Supp.) (execution and verification of petition to adopt by petitioner who is also a parent of the adoptee child is sufficient evidence of that parent's consent to the adoption); ^[1] In re Petition of K.M. and D. M. et al, 654 N.E. 2d at 898 (consent provision applies, not only to adoption by a biological parent and spouse, but also to adoption by any petitioner who is also the parent and joins in an adoption petition so as not to lose parental rights). Illinois case law recognizes the right of two persons of the same sex who are not married to each other to adopt a child. See In re Petition of K.M. and D.M., 653 N.E.2d at 899 ("the [Illinois Adoption] Act must be construed to give standing to the unmarried persons in these cases, regardless of sex or sexual orientation, to petition for adoption jointly").

The information you provided to our office does not indicate whether either of the adoptive parents is married. If, at the time of the adoption, either Ms. H~ or Ms. D~ was married and had not been separated from her spouse for at least 12 months, Cheyenne's adoption would not comply with Illinois law. See 750 ILCS 50/2 (West 1999) (if an adopting parent is married and has not been separated from his/her spouse for at least 12 months, both spouses must jointly adopt the child). We suggest that you verify that, on the date of the Judgment of Adoption, Ms. H~ and Ms. D~ were both unmarried or, if married, had been separated from the husband(s) for at least 12 months. For purposes of this memorandum, we presume that both Ms. H~ and Ms. D~ were unmarried at the time of the adoption, or were married but separated from the husband(s) for at least 12 months. Therefore, we conclude that Cheyenne's adoption by Ms. H~ and Ms. D~ is legal under Illinois law.

CONCLUSION

We conclude that Cheyenne's adoption by Ms. H~ and Ms. D~ is legal under Illinois law, provided that both Ms. H~ and Ms. D~ were either unmarried at the time of the adoption or were married but separated from the husband(s) for at least 12 months.

The Illinois statute allows adults to be adopted like minors as long as all the conditions of the Illinois Adoption Act are satisfied. The adoption of the claimant by the NH is valid, since the claimant is the NH's grandson and the court waived his consent due to his mental retardation.

You asked whether Illinois considers adoption of a person over age twenty-one valid. The Illinois Adoption Act of 1960 (the Adoption Act) allows adults to be adopted like minors, so long as they meet all of the conditions of the Adoption Act. The adoption in question appears to meet all of those conditions, and would thus be considered valid in Illinois.

FACTS

Kenneth W. U~ (Kenneth) is mentally retarded. He was born in 1968. He has lived with his grandparents, Jacob and Lillian F. U~ (Mr. and Ms. U~), since infancy. Mr. U~ became Kenneth's legal guardian in 1982. In 1986, Kenneth became entitled to SSI benefits on his own Social Security number. Ms. U~ did not previously seek grandchild's benefits for Kenneth on her account because Kenneth's natural parents are neither disabled nor deceased.

In 2000, Mr. and Ms. U~ petitioned the Circuit Court of Cook County, Illinois, to adopt Kenneth. On October 2, 2000, the court granted the petition and entered a Judgment Order for Adoption making Kenneth the child of Mr. and Ms. U~. The court found that Mr. and Ms. U~ resided in Illinois, and the court waived the requirement that Kenneth give written consent to the adoption. On November 6, 2000, Ms. U~ filed a claim on her account for Child's Insurance Benefits for Kenneth.

DISCUSSION

Kenneth is entitled to Title II child's benefits on Ms. U~'s account so long as (1) he is her child; (2) he is dependent on her; (3) he applies; (4) he is unmarried; and (5) as an individual over the age of eighteen, he was under a disability that began prior to age twenty-two. See 42 U.S.C. § 402(d)(1); 20 C.F.R. §§ 404.350-404.368. A "child" includes an individual's legally adopted child. 42 U.S.C. § 416(e); 20 C.F.R. § 404.356. An adoption is legal if it complies with the adoption laws of the State where it took place and at least one party to the adoption was domiciled or residing in that State at the time of the adoption. POMS GN 00306.135; see also 20 C.F.R. § 404.356.

Adoption is a creature of statutory enactment. In re M.M., et al., Minors v. Parents of M.M., 619 Ill.2d 702, 708 (Ill. 1993). The Illinois Adoption Act of 1960 provides that an adult may be adopted as long as he meets the other conditions of the Adoption Act. 750 Ill. Comp. Stat. Ann. 50/3 (1999). The Illinois courts have found that there is no distinction under the Adoption Act between an adopted adult and an adopted minor. In re Estate of B~, 664 N.E.2d 687, 690 (Ill. App. Ct. 1996); Dahl v. Grenier, 467 N.E.2d 992, 996 (Ill. App. Ct. 1984).

For an adoption to be valid, the Adoption Act requires:

with respect to an adult, that such adult has resided in the home of the persons intending to adopt him at any time for more than 2 years continuously preceding the commencement of an adoption proceeding, or in the alternative that such persons are related to him within a degree set forth in the definition of a related child in Section 1 of this Act.

750 Ill. Comp. Stat. Ann. 50/3 (1999). Kenneth satisfies this element of the statute, as he has both resided continuously with Mr. and Ms. U~ since infancy, and because, as their grandson, he is related to Mr. and Ms. U~ within a degree set forth in the definition of a related child in Section 1 of the Adoption Act. Id. at 50/1(B).

The Adoption Act also requires an adult to consent to his adoption, id. at 50/8(e), but it allows a court to waive consent if the adult is in need of mental treatment or is mentally retarded. Id. at 50/12. Kenneth is mentally retarded and the court waived consent.

The Adoption Act does not require the natural parents of an adult to consent to his adoption. Id. at 50/8(a)(4). Although the Adoption Act apparently does not require the guardian of an adult to consent to the adult's adoption, Kenneth's guardian, Mr. U~, waived any objection to the adoption.

CONCLUSION

In sum, Illinois considers adoption of an adult valid, as long as the adult satisfies all of the conditions of the Illinois Adoption Act. It appears that the adoption of Kenneth by Mr. and Ms. U~ satisfies all of the conditions of the Adoption Act, and was therefore valid under Illinois law.