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# 35 - Adopting One's Own Child (Oregon Law)

Monograph # 35                                                                    November, 2005

ADOPTING ONE’S OWN CHILD (Oregon Law)

© Lawrence D. Gorin, Attorney at Law, Portland, Oregon

    ORS 109.309(1) says “Any person may petition the circuit court for leave to adopt another person * * *.”  

    Given the wording of the statute, it is legally permissible to petition the court for adoption of one’s own child.  Petitioning the court, however, is far different from rendering a judgment.  And, in my opinion, rendering a Judgment of Adoption in a case where the adoptee is already the child of the adoptor is something that judges ought to unhesitatingly decline to do.

    There is no appellate Oregon case the defines the word “adopt” as used in ORS 109.309(1).  However, the Oregon Supreme Court has stated that the purpose of an adoption proceeding “is to divest a natural parent of all parental rights * * * and to bestow those parental rights * * * on the adoptive parent or parents.”  State ex rel Torres v. Mason, 315 Or 386, 389, 848 P2d 592 (1993).  

    Presumably, the “adoptive parent” on whom the parental rights are being bestowed by the adoption process is a person who does not already possess those rights.  After all, to bestow parental rights on a person who already has those rights would be an exercise in judicial futility. (Akin to persons already legally married to one another going through a second marriage to one another.  From a legal standpoint, the second marriage is meaningless, as it results in no legal change.)

    The adoption process consists to two fundamental and essential elements:  First, the legal rights and responsibilities of an existing legal parent (or parents) are terminated.  Second, the legal rights and responsibilities are transferred to and bestowed on a person (or persons) who did not previously have such rights and responsibilities.  Like love and marriage, they go together like a horse and carriage.  And in the context of adoption, you can’t have one without the other.

    Under Oregon law, upon giving birth, a woman is deemed as a matter of law as being the child’s legal parent, fully and completely.  In other words, she is a 100% parent, and you cannot be more than 100%.  Given that the birth mother is already the child’s legal parent --- 100% --- a legal proceeding whereby she seeks to adopt her own child is in my opinion a legal nullity since the Judgment of Adoption bestows on the mother nothing greater than that which she already has.  This is not what “adoption” is all about.  Indeed, such a proceeding is a sham and may likely be deemed as perpetrating fraud on the court and an abuse of legal process, given that the real purpose of the proceeding to adopt one’s own child is not to establish a “new” legal parent in place of an existing legal parent (which is what adoption is intended to accomplish) but rather to simply terminate an existing legal parent-child relationship without legally establishing anything in place thereof that does not already exist.  

    Undoubtedly there are factual situations in which it is in the best interest of the child, and the parents as well, to legally extinguish an existing parent-child relationship, with one parent voluntarily “bowing out” in favor of the other parent.  And arguably the law perhaps ought to provide a specific procedure for this to be done.  Presently, however, the law contains no such provision.  

    The remedy is not to undertake an end-run around existing law by using an adoption proceeding to accomplish something that amounts to a legal fiction.  (And this is true even if a judge is willing to go along with such an action.)  Rather, the remedy is to ask the legislature to enact a statutory procedure allowing a parent to voluntary relinquish and surrender all existing parental legal rights and responsibilities to the other parent.  But until that happens, lawyers and judges ought to refrain from attempting to creatively accomplish through the judicial branch of government something that the legislature has not yet authorized.

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LAWRENCE D. GORIN
Attorney at Law
521 S.W. Clay St., Suite 205
Portland, Oregon  97201
Phone:  503-224-8884
Fax:    503-226-1321
E-mail:  LDGorin@pcez.com
http://ldgorin.justia.net/index.html