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O’Neal v. Wilkes

Citation. O’Neal v. Wilkes, 263 Ga. 850, 439 S.E.2d 490, 94 Fulton County D. Rep. 489 (Ga. Feb. 7, 1994)
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Brief Fact Summary.

Appellant claims she is entitled to inherit from decedent as his virtually adopted daughter, and appeals from a judgment not withstanding the verdict, that was granted on the ground that appellant’s paternal aunt had no legal authority to enter into an adoption contract with decedent.

Synopsis of Rule of Law.

A legal custodian does not have the right to consent to the adoption of a child, as this right is specifically retained by a child’s parent or guardian.


Hattie O’Neal, appellant, was born out of wedlock and raised by her mother until her mother’s death in 1957. For four years after her mother’s death, appellant lived with her maternal aunt, Ethel Campbell. In 1961, Campbell surrendered physical custody of the appellant to a woman named Louise who was known to want a daughter. Shortly thereafter, Louise determined she couldn’t care for appellant and took her to the home of Estelle Page, the sister of appellant’s biological father. After living a short time with Page, Roswell Cook and his wife, who wanted a daughter, picked up appellant. Although he never statutorily adopted appellant, Cook raised her and provided for her and she resided with him until her marriage in 1975. Appellant never took Cook’s name but Cook referred to her as his daughter and referred to her children as his grandchildren. Cook died intestate in November 1991. Firmon Wilkes, appellee, was appointed as administrator of Cook’s estate and refused to r
ecognize appellant as having an interest in Cook’s estate. In December 1991, appellant filed a petition in equity, asking the court to declare a virtual adoption that would thereby entitle her to the share in Cook’s estate she would have received had she been statutorily adopted by Cook. A jury found appellant had been virtually adopted by Cook. On post trial motions the court granted a judgment not withstanding the verdict to appellee on the ground that Page had no legal authority to enter into the adoption contract with Cook.


Whether the court correctly determined that Page was without authority to contract for O’Neal’s adoption?


Yes. Judgment affirmed.
Page had no authority to enter in to the adoption contract with Cook, and therefore the contract was invalid. The obligation to care and provide for appellant undertaken by Campbell, and later Page, was not a legal obligation, but rather a familial obligation resulting in a custodial relationship that is characterized as something less than that of a legal custodian. This relationship carried no authority to contract for appellant’s adoption.

Georgia Code defines “legal custodian” as a person to whom legal custody has been given by court order, and who has the right to physical custody of the child, and has the right to determine the nature of the care and treatment of the child, as well as to provide that care.


Essential to a contract for adoption is that it be made between persons competent to contract for the disposition of the child.

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