O'Neal v. Wilkes, 439 S.E.2d 490 (Ga. 1994)


FACTS: O'Neal -Pf- filed a petition in equity seeking a declaration of virtual adoption. P was given to the Cooks by her aunt in 1961. P lived with the Cooks and after they were divorced, continued to live with Mr. Cook until 1975 when P was married. P was educated by Mr. Cook and he identified -Pf’s children as his grandchildren. When Mr. Cook died, his administrator, Wilkes (D), refused to recognize -Pf’s asserted interest in Mr. Cook's estate. A jury found P had been virtually adopted. The court granted a judgment n.o.v., finding that -Pf’s aunt was without authority to contract for -Pf’s adoption. P appeals.

ISSUE: Does an aunt have authority to contract for her niece's adoption if she is not the legal guardian?

HOLDING: No. -affirmed-

RULE AND ANALYSIS: Although -Pf’s father had never acknowledged P and his consent to the adoption was not necessary, -Pf’s aunt was not -Pf’s "legal guardian."

Even though -Pf’s aunt had physical possession of P at the time of the adoption, -Pf’s aunt was not given legal custody by court order; even if she had been "legal