Durivage v. Vincent

CourtSupreme Court of New Hampshire
Citation102 N.H. 481,161 A.2d 175
PartiesFloyd C. DURIVAGE et al., Appellants, v. Lorraine VINCENT et al., Appellees.
Decision Date31 May 1960

Page 175

161 A.2d 175
102 N.H. 481
Floyd C. DURIVAGE et al., Appellants,
Lorraine VINCENT et al., Appellees.
Supreme Court of New Hampshire.
Argued May 3, 1960.
Decided May 31, 1960.

Jerome L. Silverstein, Nashua (by brief and orally), for plaintiffs.

Page 177

Louis C. Wyman, Atty. Gen., and William J. O'Neil, Asst. Atty. Gen., Manchester, for Department of Public Welfare.

DUNCAN, Justice.

Adoption was unknown at common law and is wholly statutory. RSA ch. 461. Morse v. Osborne, 75 N.H. 487, 77 A. 403, 30 L.R.A.,N.S., 914. 'As adoption is in derogation of the common law right of the parent, consent of the natural parents is generally required and is a most important item of adoption proceedings.' Blue v. Bosivert, 143 Me. 173, 179, 57 A.2d 498, 501. In its earlier from the statute of this jurisdiction providing for adoption required that the natural parents should consent thereto, or in the event of the death of either that the survivor should do so. Laws 1862, c. 2603, § 2. The authority of the probate court to enter a decree was made dependent upon such consent (Id. § 3), and it could be dispensed with only in the case of death of both parents, in which case the consent of a guardian or of next of kin, or of a guardian ad litem was required. Section 2, supra. Since adoption operated to deprive the natural parents of their parental rights (§ 5) their consent was thus made a prime requisite.

The concept that parental consent is necessary to valid adoption [102 N.H. 484] has remained a part of the statute to the present day, although various provisions have been enacted from time to time dispensing with the need for consent of one of the parents in specified circumstances. RSA 461:3; Lucius v. Wistner, 97 N.H. 128, 82 A.2d 602. Thus in the revision of the statutes of 1867 it was provided that in the case of an illegitimate child the consent of the mother should be considered 'sufficient.' G.S. c. 169, § 2. In 1873 it was further provided that in case of abandonment on the part of either parent, the consent of the other should be sufficient (Laws 1873, c. 4, § 1); and a like provision was made in 1889 against the contingency of insanity on the part of either parent. Laws 1889, c. 42, § 1. In no instance however has the Legislature provided that the consent of both parents could be dispensed with, except when both were deceased, unless the child is a public charge (RSA 167:44, 49, 57) or a guardian has been appointed under RSA 463:6. See RSA 463:10. The authority which RSA 461:3 supra, confers upon a guardian, or if there is no guardian, upon a guardian ad litem, is now and in the past has been limited to the case where 'neither parent is living.' RSA 461:3, supra. See R.L. c. 345, § 2.

The petition for adoption filed by the plaintiffs in the pending appeal met the statutory requirements since it was a 'case of an illegitimate child' and the petition bore the consent of the mother of the child. This was sufficient to confer jurisdiction of the subject matter upon the probate court, with the power to enter a decree of adoption if the necessary supporting findings were warranted. RSA 461:5; Wilson v. Otis, 71 N.H. 483, 487, 53 A. 439. See In re Adoption of a Minor, 338 Mass. 635, 156 N.E.2d 801.

When the appeals came on for trial in the Superior Court, the mother undertook to withdraw her consent. The plaintiffs contend that the findings by the Superior Court that the mother had abandoned the child dispensed with the necessity for her consent. The finding with respect to abandonment was excepted to by the Department of Public Welfare, but we think it unnecessary to pass upon the exception. The plaintiffs' position is not improved if the mother's consent can be dispensed with by reason of abandonment, because the applicable statute makes no provision for adoption in a case where living parents have both abandoned the child. Cf. Blue v. Boisvert, 143 Me. 178,...

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10 cases
  • In re J.W., 2018-0404
    • United States
    • Supreme Court of New Hampshire
    • July 3, 2019
    ...the statutory requirements for adoption concerns the consent of the natural parents. See RSA 170-B:5 (2014); see also Durivage v. Vincent, 102 N.H. 481, 483, 161 A.2d 175 (1960). In "the usual case of adoption," Jessica W., 122 N.H. at 1055, 453 A.2d 1297, the adoptee "receives two new pare......
  • In re Nelson, 2002–433.
    • United States
    • Supreme Court of New Hampshire
    • June 6, 2003
    ...For example, we have held that a couple who stood in loco parentis to a child were "persons ... legally aggrieved," Durivage v. Vincent, 102 N.H. 481, 486, 161 A.2d 175 (1960) (quotation omitted), by a probate court's denial of their petition for continued custody of the child and that the ......
  • Adoption of Baby C., In re, 83-404
    • United States
    • Supreme Court of New Hampshire
    • July 23, 1984
    ...held that the right to withdraw consent to adoption was not "absolute but ... governed by equitable considerations." Durivage v. Vincent, 102 N.H. 481, 485, 161 A.2d 175, 178 (1960). In so holding, we recognized that: " 'To accede to the contention that such voluntary consent may be withdra......
  • Wallace v. Lougee
    • United States
    • Supreme Court of New Hampshire
    • June 30, 1966
    ...made by the statute in question for adoption of a child without parental consent, unless both parents are deceased. Durivage v. Vincent, 102 N.H. 481, 484, 161 A.2d 175. On the other hand, the statute contains no express provision that a parent who gives consent must survive the date of the......
  • Request a trial to view additional results

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