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In Victor Hugo's novel, Jean Valjean tells a dying mother that he will care for her daughter, Cosette. The mother gives him a letter authorizing him to care for Cosette. He goes to the inn where the daughter is being cared for, and pays off her expenses. They disappear into a convent for about eight years, and then begin living openly in Paris. He always treated Cosette well, and they had plenty of money.

I'm curious: if such a sequence of events were to play out in the present day (in the United States, let's say), how would the legal system react? (I'm not sure exactly how anyone would know; presumably some situation would arise when a birth certificate would be needed.) Is there some concept of “common law adoption,” or would the courts start from scratch in determining who should take care of Cosette? Would Valjean be guilty of a crime?

ohwilleke
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adam.baker
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1 Answers1

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Her legal guardian

Probably.

A living parent can appoint a guardian for their child by deed Guardianship of Infants Act (NSW) 1916, subject to the Family Law Act (Cth) 1975. The appointment is valid without taking the matter to court, although the court can intervene if there is a dispute, for example, if the other parent objects to the appointment.

Now, it’s unlikely that the letter the mother wrote meets all the requirements of a deed but, in modern jurisprudence, courts typically look at substance over form - if the document shows a clear intention to appoint Jean as guardian, then the court may overlook defects in the formalities, particularly if it is uncontested.

Notwithstanding, Jean is clearly a person with “sufficient interest” in the child and can therefore apply to the Federal and Family Court to be appointed guardian irrespective of the letter. Again, if no one objects and it’s in the best interest of the child, he will be named guardian.

At a more fundamental level, unless someone raises an issue over the relationship, the state is not going to get involved. Many people care for children without having a formal legal relationship. Anecdotally, as a parent, you are hardly ever required to formally prove your relationship to your child.

Dale M
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