Adoption is the legal act of creating a parent-child relationship when it does not already exist. After the adoption, the parties assume all the rights and duties of the parent-child relationship, including the adopting parent's duty to pay child support and the adopted child's right to inherit from the adopting parent. The adoption process terminates the parental rights and duties of the child's birth parent, except the duty to pay any past due child support.
Who can be adopted?
A child may be adopted if:
the child has no living parent
the rights of the child's living parents have been terminated by a Court in Montana or another state; or
a parent, the Department of Public Health and Human Services (DPHHS) or an adoption agency with custody of the child consents to the adoption.
Who may adopt a child?
A husband and wife;
an unmarried person over age 18; or
a married person over age 18 who is legally separated from his/her spouse or whose spouse has been declared incompetent.
What types of adoption are available in Montana?
There are four different ways for a child to be adopted in Montana:
through a direct parental placement;
through a placement by a licensed adoption agency;
through a placement by the DPHHS; or
through a stepparent adoption.
Another adult may also adopt an adult.
What is a direct parental placement?
In a direct parental placement, a parent directly places her child with prospective adoptive parent(s) she has selected herself. Neither DPHHS nor an adoption agency is involved in finding the adoptive parent(s). The adoptive parents may live in Montana or another state that allows direct parental placement.
For a direct parental placement, the birth parent must:
sign a form voluntarily giving up parental rights to the child and consenting to the child's adoption;
complete three hours of counseling;
if under 18, have a lawyer of her own;
provide information on the location of the other legal parent and any others who are legally entitled to notice of the adoption proceeding. This includes any spouse who the birth parent was married to at the time of conception;
provide information regarding the child's Indian heritage, if any;
disclose the medical and family history of the birth family;
provide a list of all bills paid by the adoptive parents for things like counseling and legal fees;
review a pre-placement evaluation of the adoptive family.
After the birth parent gives up her rights and consents to the adoption, the adopting parents file a petition to terminate parental rights and request for custody and a petition for adoption. A hearing is held and the Judge reviews the documents and hears testimony from the adopting parents. The Judge then decides if the adopting parents should be given custody of the child. After the adopting parents are granted custody, there is a 6-month waiting period.
During the waiting period, a licensed social worker will visit the family and prepare a report for the Judge. The report will make a recommendation whether the adoption should be finalized. At the end of the 6-month waiting period, a second hearing will be held to finalize the adoption.
What is a DPHHS or an agency adoption?
In a DPHHS or agency adoption, the birth parent relinquishes custody of the child to DPHHS or a licensed adoption agency. DPHHS or the agency must agree to accept custody of the child. DPHHS or the agency will place the child with the prospective adopting parents and will supervise the placement during the 6-month waiting period. After the waiting period, the adopting parents will file a petition for adoption. At that time, DPHHS or the agency will file its consent to the adoption. DPHHS or the agency can recommend that the adoption be finalized sooner than 6 months if the child has been in the home for at least 6 months before the adoptive placement and the post-placement evaluation is completed during that time; if there are extenuating circumstances; or if the child has been a foster child with the adopting parents for at least one year before the adoptive placement.
What is a step-parent adoption?
In a stepparent adoption a birth parent may give his/her parental rights to the child's stepparent or a member of that child's extended family. The procedure is generally the same as other types of adoption but requirements like the pre-placement evaluation and the 6-month post-placement evaluation and report can be waived by the Judge.
A stepparent may adopt his/her spouse's child if:
the spouse has custody of the child and the child has been living with the spouse and stepparent for at least 60 days before the adoption petition is filed;
the spouse is dead but previously had custody of the child, and the child has lived mainly with the stepparent for 12 months before the adoption petition is filed; or
DPHHS or an agency placed the child with the stepparent.
The court may allow a person who is not a stepparent, but who has the consent of the custodial parent, to file a petition for adoption.
The child's custodial parent will need to consent to the adoption by his/her new spouse. If the other birth parent refuses to consent, the adoption will not be allowed unless the Judge terminates the other birth parent's parental rights for some other reason, such as unfitness, non-support, etc.
Following a stepparent adoption:
The relationship of parent and child will exist between the adopted child and the adopting stepparent and the relatives of the adopting stepparent.
The former parent and the relatives of the former parent are relieved of all parental responsibilities and have no rights over the adopted child except for the former parent's duty to pay past due child support.
The adopted child will have the right to inherit from the adopting stepparent.
Any existing court order concerning visitation or communication for someone related to the adopted child through either parent is not affected.
The child still has the right to inherit from the child's former parent.
What is a Consent to Adoption?
A Consent to Adoption is a written document that states that the person signing the document agrees the child may be adopted by the adopting parents. A consent to adopt may be signed by the birth mother; the birth father; any person whose parental rights have been established by a court; DPHHS or an agency with custody and authority to place the child; the legal guardian; or the child if he or she is over the age of 12.
What is a voluntary relinquishment of parental rights?
A parent may voluntarily relinquish (give up) his or her parental rights by signing one of the following documents:
A relinquishment and consent to adoption;
A denial of paternity;
An acknowledgment of paternity and a denial of any interest in custody of the child.
A voluntary relinquishment must specifically give custody of the child to DPHHS, an adoption agency, or the prospective adoptive parents. DPHHS, the agency, or the adoptive parents must agree in writing to accept custody of the child and to provide care and support for the child until the child is adopted.
A parent cannot sign a relinquishment and consent to adopt until at least 72 hours after the child is born. Montana law requires that a birth mother receive at least 3 hours of counseling before she can sign a relinquishment. The counseling must be provided by either DPHHS or an adoption agency. In a direct parental placement adoption, a birth mother who is a minor must have her own attorney and be informed that the adopting parents can pay the required counseling and legal fees. The birth mother must also get a copy of the pre-placement evaluation (see below) before signing the relinquishment.
Once the relinquishment and consent to adopt is signed, it is final and cannot be taken back. A relinquishment can only be taken back if all the parties agree and the Judge has not signed the order terminating parental rights. Once the order terminating parental rights is issued, the relinquishment is final and may not be taken back.
What is the pre-placement evaluation?
A child may not be placed for adoption unless the person with whom the child will be placed has had a pre-placement evaluation to determine the fitness and readiness of the adoptive parent. The pre-placement evaluation must be performed by a licensed social worker. The social worker will make at least one home visit and interview each family member. The adopting parents and their home are studied and evaluated. A written report is prepared and filed with the court. The information in the pre-placement evaluation includes:
a criminal background check for prior child abuse and neglect or domestic violence complaints;
medical and social history and current health of adopting parents;
assessment of potential parenting skills;
assessment of financial ability to support a child; and
assessment of knowledge and awareness of adoption issues.
The evaluation will state the suitability of the adopting parents for the placement of the child in their home.
The pre-placement evaluation is valid for one year and must be updated if major changes occur. The court may waive the requirement for pre-placement and post-placement evaluations in a direct parental placement if the child is placed with an extended family member of the child. In a direct parental placement the pre-placement evaluation must be filed with the petition for adoption. In a DPHHS or agency adoption the pre-placement evaluation must be kept in the permanent files of DPHHS or the agency.
What is the post-placement evaluation?
During the 6-month waiting period, after the adoptive parent has custody of the child but before the adoption is final, a social worker will complete a written post-placement evaluation. The post-placement evaluation must include at least one in-home visit with the adopting parents and an observation of the child and adopting parents. The post-placement evaluation will provide an assessment of the adopting parents' parenting of the child and a recommendation for or against the adoption.
What is the legal procedure that is followed for an adoption?
A child is not legally free to be adopted until the parental rights of the birth parent(s) are terminated. The parental rights can be terminated by either
voluntary relinquishment by the parent, or
by a Judge without the parent's consent, for some reason like abandonment, unfitness, or failure to provide support to the child.
DPHHS, the adoption agency, or the adopting parents will file a Petition to Terminate Parental Rights. The petition is filed in the district court in the county where the adopting parents live, the child lives, or the adoption agency's office is located.
The Court will schedule a hearing on the Petition to Terminate Parental Rights.
Notice of the hearing to terminate parental rights must be given to:
the presumed father;
the father listed on the birth certificate;
any person the court has determined is the father for child support purposes; and
any person living with the birth mother and representing he is the father; and if the relinquishing parent was married at the time of conception, that spouse or ex-spouse.
The notice of the hearing must tell the person that failure to appear at the hearing is a waiver of interest in the child and may result in the termination of parental rights. Proof that the notice was served on the necessary person(s) must be filed with the court before the hearing.
An order terminating parental rights:
terminates the parent-child relationship except for any past due child support;
terminates the court's jurisdiction over the child in any divorce action;
terminates a parent's right to withhold consent to the adoption and any right to further notice of any adoption proceedings; and
awards custody of the child to DPHHS, an adoption agency or the adopting parents until the adoption is finalized.
After the six-month waiting period, a Petition for Adoption is filed and a hearing will be scheduled.
Notice of the hearing on the Petition for Adoption must be given to a person or agency whose consent is required and a person who has revoked a consent or relinquishment or is attempting to set aside a consent or relinquishment. Notice is not required for a person whose parental rights have been terminated; a person who waived notice in writing; or a person who has consented in writing to the adoption.
At the hearing the Judge will hear testimony from the adopting parents. If the Judge believes it is best for the child to be adopted, the Court will issue an order finalizing the adoption.
How is a new birth certificate issued?
The adopting parents must complete a Certificate of Adoption form, which is then sent to DPHHS. Within 30 days after an adoption decree is issued, the Clerk of Court reports the adoption to DPHHS. The Bureau of Vital Statistics will issue a new birth certificate for the child. The adopting parents will be identified as the child's parents on the new birth certificate.
Darcy M. Crum Rebeck & Crum An Association for the Practice of Law 300 Central Ave., Suite 410 PO Box 2720 Great Falls, MT 59403