The basis for equitable adoption is an express or implied contract to adopt the child legally, usually between the adopting parents and the child's parents or the person or agency which had custody and control of the child.

See GN 00306.225B. to determine whether an oral agreement is acceptable or whether the agreement must be in writing.

In establishing a contract, the parties do not need to have used the word “adopt” or named the legal process for accomplishing adoption. There need be only a clear indication that the parties obligated themselves to take the necessary steps to meet the statutory requirements for legal adoption. If this obligation is established, a contract to adopt may exist although the parties did not know the adoption laws or the required legal proceedings.

Generally, all States recognizing equitable adoption require the child's natural parents (if alive) either to be parties to the contract or to have consented to it. However, State law may waive this requirement under certain conditions.

If the mother of an illegitimate child acts through an authorized agent, treat the agent's agreement with the adopting parents and the surrender of the child to them as if the child's mother had dealt directly with the adopting parents.

A contract to adopt is usually governed by the law of the State where it was made. However, if the contract was made or performed in a State other than the State of the NH's domicile when the child's claim was filed, ask OGC per GN 01010.815 ff. for a determination as to the validity of the contract under State law.

To establish an implied contract, there need be no allegation or direct evidence of a contract to adopt. The contract is implied from the circumstances and conduct of the parties. However, if the terms of an agreement are known, no contract other than that indicated in the agreement may be implied.

There are no exact rules as to when a contract may be implied. Unless other facts indicate otherwise, a contract to adopt may be implied when:

1. a. 

   The circumstances of the transfer clearly indicate that the promise to absolutely relinquish custody and control was exchanged for the adopting parents' promise to give the child the same rights and considerations he/she would have had by law had he/she been their natural child; and

2. b. 

   The subsequent conduct and statements of all parties clearly reflect this mutual exchange of promises, and no other inference can reasonably be drawn, e.g.:

   • •

     The natural parents have completely given up custody and control of the child;

   • •

     The adopting parents have taken the child into their home, given him /her their name, supported, educated, and treated him/her as their own over a period of time;

   • •

     The child was known in the community as their child; and

   • •

     The child conducted himself/herself, according to age, as if they were the parents.

Acts such as baptizing the child in the NH's family name where the child has a different surname, or entering the adopting parents' names on the child's public birth record, show an intent to adopt.

An implied contract does not exist when:

1. a. 

   The terms of the agreement are known (in this case the agreement is express); or

2. b. 

   There are reasonable grounds for believing that the parties had some other intent at the time of the child's transfer.

The evidence must be very strong to justify finding an implied contract in these cases. The relationship tends to weaken any inference that an adoption was intended.

The implied contract must have been enforceable in the courts of the State. For example, a contract would not be enforceable if:

1. a. 

   The person who consented to give over the child's custody was a legally incompetent natural parent or another person who was incapable of entering into such an agreement; or

2. b. 

   For any reason a legal adoption would not have been granted if such proceedings had been started. For example, in some States an individual over age 60 may not adopt a child.