As an addendum to the paper on Orphans and Guardians, it may be helpful to briefly touch on the subject of adoption from the perspective of genealogical research in the American colonies. Family researchers frequently tell me about ancestors who were “adopted” without truly understanding what is meant by the term or what implications it has for interpretation of records.
Adoption, as a legal device, is really about property rather than about support or acceptance. In England and its colonies, taking a child into one’s home and treating it as a social member of the family required no legal action. Thus illegitimate children could be embraced by their natural parents, or orphans by their stepparents, without the necessity of any legal approval. Children could, in fact, be taken in by practically anyone. Children with estates but no family could be cared for, educated, and supported by anyone with whom a child’s guardian might make arrangement. Poor children without friends or family, even those from very poor families, were generally apprenticed to tradesmen who assumed the social role of educator and provider.1 Of all these relationships, only apprenticeships, which were a form of indentured servitude, involved any sort of legal process.2 None of these circumstances conveyed any special legal rights either to the child or the substitute parent.
While many ancient cultures provided for adoption in the sense of giving an adopted child the same legal status as natural children, the England from which our early colonists came had no adoption laws of any kind. Indeed, England’s first adoption statute was not enacted until 1926. The American colonies therefore made no provisions for adoption either. In fact, the first adoption statutes in the United States were not enacted until the 1850s.3
As a legal device adoption involves two key concepts of interest to genealogists: giving parental rights and responsibilities to someone other than a child’s natural parents and giving the right of inheritance to the child.
The English laws of inheritance and succession were based on bloodlines and legitimacy. Illegitimate children could not be heirs of their fathers, no matter how much a father might desire it to be otherwise. Nor could stepchildren be heirs of their stepparents, regardless of love, acceptance, or living arrangements. Nor could two persons with only one parent in common inherit from one another. That legal status could not be altered. Regardless of the desires of the parties involved, the only means of conveying inheritances upon these persons was by explicit provision in a will.
Therefore family researchers should carefully interpret records prior to the mid-19th century in light of four aspects of adoption:
- A stepchild could not inherit from a stepparent and a stepparent could not bestow inheritance rights upon a stepchild. For instance, if a widow with children remarried, her children were not heirs of her new husband, nor were they heirs of any children she might have with that new husband. Nor could they be heirs of her new husband’s own parents or siblings. Short of an explicit provision in a will, her children had no legal claim to the estate of any person they were not descended from by blood.
- An illegitimate child was not a natural heir of his father, even if recognized by the father. Once illegitimacy was established, the father’s recognition did not legitimize the child.4
- No mechanisms existed to transfer parental rights from a natural parent to a step parent. A stepparent could not give consent to marriage of a minor stepchild, nor act on his behalf in legal matters.
- Children, if legitimate, retained the surname of their natural father. Illegitimate children retained the surname of their mother. 5 No mechanism existed to change one’s name other than legislative decree. An example is an 1804 North Carolina bill in the Legislature “…An Act to alter the names of the persons therein mentioned, and to legitimate them. Be it enacted by the General Assembly of the State of North Carolina… that the names of William Joyner, Martha Joyner, Sally Joyner, Joseph Joyner, Mary Joyner, and Geraldus Joyner, illegitimate children of Joseph Batts and Elizbeth Joyner of Edgecombe County be changed to those of William Batts, Martha Batts,… and the names of John Kindrick, Polly Kindrick, Betsey Kindrick, and Salley Kindrick, natural born children of Stephen Jackson, of Anson County, be altered to the names of John Jackson, Polly Jackson, Betsey Jackson, and Salley Jackson…”
Modern Adoption Laws
Adoption, as we know it today, creates a parent-child relationship legally indistinguishable from a naturally-occurring one. The first laws that made provision for adoption in the modern sense were enacted by Massachusetts in 1851 and Pennsylvania in 1855 (though Alabamans might point to their 1850 law.) In both cases, the adopted child was given the same inheritance rights as if they had been natural children of the adoptive parent. Not all states followed that model; for instance, the first New York adoption law of 1873 specifically exempted inheritance rights.6 Several other states struggled with the question of whether an adopted child’s inheritance rights extended beyond the immediate family unit: for example whether an adopted child became an heir of a grandparent or of a natural-born sibling.
- Depending on the timeframe and location, some may have been sent to workhouses or orphanages. [↩]
- Guardians were, of course, subject to court oversight not only for the orphan’s estate but also his education and wellbeing. [↩]
- It was possible, but rare, to change the status of children by legislative decree. The point is that no judicial process existed, so that only the most influential members of society could exercise another option. As with divorces, colonies and states passed small numbers of legislative bills aimed at specific, often wealthy, individuals. [↩]
- I cite the case of Cordall Norfleet, who in 1760 was cited by the Southampton court for being the “reputed father of a bastard child begotten on the body of Ann Bynum.” The child was named Cordall Norfleet Bynum, was apparently raised after his mother’s death by Norfleet, and years later was left a rather large plantation in Cordall Norfleet’s will, though only Norfleet’s natural children had shares of the residual estate. [↩]
- Illegitimate children or step-children raised by their fathers retained their original surnames but were frequently known by aliases. [↩]
- New York’s second law, passed in1887, restored inheritance rights. [↩]