Revision as of 18:13, 15 April 2014

Adoption Laws

Consent to Adoption

Who Must Consent to an Adoption Citation: Ann. Code § 42-2-301

Written consents to an adoption must be executed by:

• The birth mother
• The husband of the birth mother if the husband is the presumed father of the child
• Any other person whose parental rights have been established by a court
• The department or an agency that has custody of the child and the authority to place the child for adoption
• The legal guardian of the child if both parents are dead or their rights have been judicially terminated, and the guardian has authority by order of the court appointing the guardian to consent to the adoption

Consent of Child Being Adopted Citation: Ann. Code § 42-2-301

A child who is age 12 or older must consent, either in writing or in court, unless he or she lacks the mental capacity to consent.

When Parental Consent Is Not Needed Citation: Ann. Code § 42-2-302

Consent to adoption of a child is not required from:

• An individual whose parental relationship to the child has been judicially terminated for unfitness, has been determined not to exist, or has been waived
• A parent who has been judicially declared incompetent
• An individual who has not been married to the mother of the child and who, after the conception of the child, executes a notarized statement denying paternity or a notarized statement acknowledging paternity and denying any interest in the child
• The personal representative of a deceased parent’s estate

When Consent Can Be Executed Citation: Ann. Code § 42-2-408

A parent whose consent to the adoption of a child is required, may execute a relinquishment and consent to adoption only after he following criteria have been met:

• No less than 72 hours have elapsed since the birth of the child.
• The parent has received counseling in accordance with § 42-2-409.

A guardian may execute a relinquishment and consent to adopt at any time after being authorized by a court.

The department or a licensed child-placing agency may execute a consent for the adoption at any time before or during the hearing on the petition for adoption.

A child whose consent is required may execute consent at any time before or during the hearing on the petition to adopt.

How Consent Must Be Executed Citation: Ann. Code §§ 42-2-303; 42-2-405; 42-2-408

The required consents must be acknowledged before an officer who is authorized to take acknowledgments or must be witnessed by a representative of the department, an agency, or the court.

A parent who is a minor has the right to relinquish all rights to the child and to consent to the child’s adoption. The relinquishment is not subject to revocation by reason of minority. In a direct parental placement adoption, a relinquishment and consent to adopt executed by a parent who is a minor is not valid unless the minor parent has been advised by an attorney who does not represent the prospective adoptive parent.

A parent whose consent to the adoption of a child is required may execute a relinquishment and consent to adoption only after the parent:

• Has been informed that fees for any required counseling and legal fees are allowable expenses that may be paid by a prospective adoptive parent
• Has been represented by separate legal counsel if the parent is a minor
• Has been provided a copy of the preplacement evaluation pertaining to the prospective adoptive parent prior to the execution of the relinquishment

If the person from whom a relinquishment and consent to adopt are required is a member of the armed services or is in prison, the relinquishment may be executed and acknowledged before any person authorized by law to administer oaths.

Revocation of Consent Citation: Ann. Code § 42-2-410

The parent who executed the relinquishment and consent to adopt and the department, agency, or prospective adoptive parent named or described in the relinquishment and consent to adopt may mutually agree to revocation of consent prior to the issuance of an order terminating parental rights.

A relinquishment may not be revoked if an order has been issued terminating parental rights.

Criminal Background Checks for Prospective Foster and Adoptive Parents

Requirements for Foster Parents Ann. Code § 52-2-622; Admin. Rule 37.51.310

A fingerprint-based FBI and State criminal and child protection background check, which must include information pertaining to criminal convictions, reports of domestic violence, and substantiated child abuse or neglect of children, is required for a prospective foster, kinship, or extended care provider.

In regulation:For licensure as a youth foster home, a satisfactory criminal background, motor vehicle, and child and adult protective services check is required for each person living in the household.

A new applicant must submit a completed fingerprint card so that a fingerprint-based criminal records check can be requested. If a new applicant who has lived only in Montana cannot be successfully fingerprinted, a name-based criminal records check will be used. If an applicant who has lived in States other than Montana cannot be successfully fingerprinted:

• A criminal history check will be requested from every State in which an applicant has lived in the past 15 years.
• A check will be made of the violent offender and criminal history registries if this information is available for States in which the applicant has lived.
• If, after 45 days, the department has been unable to obtain results of a criminal records check for an applicant who has lived in Montana for at least 5 years, he or she must sign an affidavit attesting to his or her lack of criminal history. The affidavit will be accepted in lieu of a criminal history check.

An annual name-based criminal records check and a motor vehicle check for licensed foster parents are required for relicensure. If an applicant has children, a child protective services check will be requested from all States in which he or she has lived since the birth date of his or her oldest child. If an applicant does not have children, a child protective services check will be requested from all States in which he or she has lived in the previous 15 years.

Requirements for Adoptive Parents Ann. Code § 42-3-203

A check of criminal conviction data, data on substantiated abuse or neglect of a child, and data pertaining to any involvement in incidents of domestic violence is required for a prospective adoptive parent as part of the preplacement evaluation. The adoption study also may include a check of the youth court records of any person living in the prospective home.

If applicable, the study must include an evaluation of the effect of a conviction, adjudication, or finding of substantiated abuse or neglect on the ability to care for a child.

Grounds for Involuntary Termination of Parental Rights

Circumstances That Are Grounds for Termination of Parental Rights Ann. Code §§ 41-3-423; 41-3-609

The court may order a termination of parental rights upon a finding established by clear and convincing evidence that any of the following circumstances exist:

• The child has been abandoned.
• The parent has been convicted of a felony sexual offense that resulted in the birth of the child.
• The parent has:
  • Subjected a child to aggravated circumstances, including, but not limited to, abandonment, torture, chronic abuse, sexual abuse, or chronic and severe neglect
  • Committed, aided, abetted, attempted, conspired, or solicited deliberate or mitigated deliberate homicide of a child
  • Committed aggravated assault against a child
  • Committed neglect of a child that resulted in serious bodily injury or death
  • Had parental rights to the child’s sibling or other child of the parent involuntarily terminated and the circumstances related to the termination of parental rights are relevant to the parent’s ability to adequately care for the child at issue
• A putative father has failed to do any of the following:
  • Contribute to the support of the child for an aggregate period of 1 year, although able to do so
  • Establish a substantial relationship with the child, as demonstrated by visiting the child at least monthly or maintaining regular contact when physically and financially able to do so
  • Register with the putative father registry
• Reasonable efforts to rehabilitate the parent have failed.
• The conduct or condition of the parent makes the parent unfit, unable, or unwilling to give the child adequate parental care. In making the determinations, the court shall consider, but is not limited to, the following:
  • Emotional illness, mental illness, or mental deficiency of the parent of a duration or nature as to render the parent unlikely to care for the ongoing physical, mental, and emotional needs of the child within a reasonable time
  • A history of violent behavior by the parent
  • Excessive use of intoxicating liquor or of a narcotic or dangerous drug that affects the parent’s ability to care and provide for the child
  • Incarceration of the parent for more than 1 year, and reunification of the child with the parent is not in the best interests of the child because of the child’s circumstances, including placement options; age; and developmental, cognitive, and psychological needs

Circumstances That Are Exceptions to Termination of Parental Rights Ann. Code § 41-3-609(5)

If a proceeding under this chapter involves an Indian child and is subject to the Federal Indian Child Welfare Act, a qualified expert witness is required to testify that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

Circumstances Allowing Reinstatement of Parental Rights

This issue is not addressed in the statutes reviewed.

Home Study Requirements for Prospective Parents in Domestic Adoption

Who Must Be Studied Citation: Ann. Code § 42-3-202

The prospective adoptive parent and the home of the prospective adoptive parent must be studied and evaluated.

Agency or Person Conducting the Study Citation: Ann. Code § 42-3-202

A prospective adoptive parent may request a preplacement evaluation from the department, a licensed social worker, or a licensed child-placing agency. In a direct parental placement adoption, the preplacement evaluation must be conducted by either a licensed social worker or a licensed child-placing agency.

Qualifications for Adoptive Parents Citation: Ann. Code § 42-1-106; Admin. Rules R. 37.52.104

A husband and wife jointly or an unmarried individual who is at least age 18 may be eligible to adopt a child.

In regulation: The department will not accept adoptive applicants who have current applications before any other licensed adoption agency. The department decides whether applicants will be studied and whether children will be placed. The department may limit adoptive intake according to the number and type of children available for adoption.

Adoptive applicants must:

• Submit to the department a physical examination report as part of the adoption application
• Have sufficient income to provide for an additional child or children

Elements of a Home Study Citation: Ann. Code §§ 42-3-203; 42-3-204

A preplacement evaluation must include a review of the following:

• A check of criminal conviction data, data on substantiated abuse or neglect of a child, and data pertaining to any involvement in incidents of domestic violence
• Medical and social history and current health
• An assessment of potential parenting skills
• Ability to provide adequate financial support for a child
• The level of knowledge and awareness of adoption issues, including, when appropriate, matters relating to open, interracial, cross-cultural, and special needs adoptions
• A check of the youth court records of any person living in the prospective home

The preplacement evaluation must include at least one in-home visit with the prospective adoptive parent and at least one interview with each family member.

The preplacement evaluation report must contain the following information if available:

• Age, nationality, racial or ethnic background, and any religious affiliation
• Marital status and family history
• Physical and mental health and any history of abuse of alcohol or drugs
• Education and employment history and any special skills
• Property and income, including outstanding financial obligations
• Whether the individual has been charged with or convicted of domestic violence or has been involved in a substantiated charge of child abuse or neglect or elder abuse or neglect and the disposition of the charges
• Whether the individual is subject to a court order restricting the individual’s right to custody or visitation with a child
• Whether the individual has been convicted of a crime other than a minor traffic violation
• The quality of the environment in the individual’s home and the functioning of other children in the individual’s household

Grounds for Withholding Approval Citation: Ann. Code § 42-3-205

An evaluator shall assess the information required for the home study to determine if it raises a specific concern that placement of any child or a particular child in the home of the individual would pose a significant risk of harm to the physical or psychological well-being of the child. If an evaluator determines that the information raises a specific concern, the evaluator, based on the original or any further investigation, shall find that the individual is or is not suited to be an adoptive parent. The evaluator shall support the finding with a written explanation.

When Studies Must Be Completed Citation: Ann. Code §§ 42-3-201; 42-3-204

A child may not be placed for purposes of adoption unless the person with whom a child is proposed to be placed has had a preplacement evaluation completed to determine fitness and readiness as an adoptive parent.

A preplacement evaluation is valid for 1 year following its date of completion and must be updated if there is a significant change in circumstances.

Postplacement Study Requirements Citation: Ann. Code §§ 42-4-112; 42-4-113; 42-4-205; 42-4-209

In a direct parental placement adoption, the court shall order a 6-month postplacement supervision and a postplacement evaluation. The postplacement evaluation period must be supervised and evaluated by a licensed social worker or other qualified person.

An evaluation must be based on a personal interview with the prospective adoptive parent in his or her home and an observation of the relationship between the child and the adoptive parent. At a minimum, the evaluation must include the following information:

• An assessment of adaptation by the adoptive parent to parenting the child
• An assessment of the health and well-being of the child
• The level of incorporation by the child into the adoptive parent(s)’ home
• An account of any change in the adoptive parent(s)’ marital status or family history, physical or mental health, home environment, property, income, or financial obligations since the filing of the preplacement evaluation

The evaluation must contain a definite recommendation stating the reasons for or against the proposed adoption.

For a department or agency placement, the department or agency shall supervise and evaluate the placement during a 6-month postplacement evaluation period. The evaluation must include the following information:

• Whether the child is legally free for adoption
• Whether the proposed home is suitable for the child
• A statement that the medical and social histories of the birth parents and child have been provided to the adoptive parent
• An assessment of adaptation by the adoptive parent to parenting the child

The evaluation must contain a definite recommendation stating the reasons for or against the proposed adoption.

Exceptions for Stepparent or Relative Adoptions Citation: Ann. Code § 42-4-309

In a stepparent adoption, if the court is satisfied that the adoption is in the best interests of the child, the court may waive the requirement of a preplacement evaluation and the 6-month postplacement evaluation and report and grant a decree of adoption.

Requirements for Interjurisdictional Placements Citation: Ann. Code § 41-4-101

Any out-of-home placement of a child outside the State is subject to the provisions of the Interstate Compact on the Placement of Children.

The child shall not be sent into the receiving State until the appropriate public authorities in the receiving State notify the sending agency, in writing, that the proposed placement does not appear to be contrary to the interests of the child.

Foster to Adopt Placements Citation: Ann. Code § 42-4-113

The department or an agency may recommend the waiver of the 6-month postplacement evaluation period and the postplacement evaluation if the child being adopted has been in the petitioner’s home as a foster child for at least 1 year.

Infant Safe Haven Laws

Infant’s Age Citation: Ann. Code § 40-6-402

A newborn infant may be surrendered under this act. The term ‘newborn’ means an infant whom a physician reasonably believes to be no more than 30 days old.

Who May Relinquish the Infant Citation: Ann. Code §§ 40-6-402; 40-6-405

A parent may surrender the child. The term ‘surrender’ means to leave a newborn with an emergency services provider without expressing an intent to return for the newborn.

Who May Receive the Infant Citation: Ann. Code §§ 40-6-402; 40-6-405

The child may be surrendered to an emergency services provider, including:

• A uniformed or otherwise identifiable employee of a fire department, hospital, or law enforcement agency, when the individual is on duty inside the premises of the fire department, hospital, or law enforcement agency
• Any law enforcement officer who is in uniform or is otherwise identifiable

Responsibilities of the Safe Haven Provider Citation: Ann. Code §§ 40-6-405; 40-6-406

The emergency services provider shall, without a court order, immediately take the newborn into temporary protective custody and shall take action necessary to protect the physical health and safety of the newborn. The emergency services provider shall make a reasonable effort to do all of the following:

• Inform the parent that by surrendering the newborn, he or she is releasing the newborn to be placed for adoption
• Inform the parent that he or she has 60 days to petition the court to regain custody of the newborn
• Encourage the parent to provide any relevant family or medical information, including information regarding any Tribal affiliation
• Provide the parent with information about counseling or medical attention
• Ask the parent for the parent’s name
• Inform the parent that the State is required to make a reasonable attempt to identify the other parent and to obtain relevant medical family history and then ask the parent to identify the other parent
• Inform the parent that the department can provide confidential services to the parent
• Inform the parent that the parent may sign a relinquishment for the newborn to be used at a hearing to terminate parental rights

An emergency services provider that is not a hospital shall transfer the newborn to a hospital. A hospital that takes a newborn into temporary protective custody must have the newborn examined by a physician. If a physician who examines the newborn either determines that there is reason to suspect the newborn has experienced abuse or neglect, other than being surrendered to an emergency services provider, or that the infant is not a newborn, the physician shall immediately report to the Department of Public Health and Human Services.

The hospital shall, no later than the first business day after taking possession of the newborn, notify the department that the hospital has taken a newborn into temporary protective custody.

Immunity for the Provider Citation: Ann. Code §§ 40-6-403; 40-6-404

A hospital and the agents and employees of the hospital are immune in a civil action for damages for an act or omission in accepting or transferring a newborn under this part, except for an act or omission constituting gross negligence or willful or wanton misconduct.

A fire department or law enforcement agency and the agents and employees of a fire department or law enforcement agency are immune in a civil action for damages for an act or omission in accepting or transferring a newborn under this part, except for an act or omission constituting gross negligence or willful or wanton misconduct.

Protection for Relinquishing Parent Citation: Ann. Code §§ 40-6-405; 40-6-417

Information that the parent provides to an emergency services provider will not be made public.

A criminal investigation may not be initiated solely on the basis of a newborn being surrendered to an emergency services provider in the absence of reasonable suspicion of actual abuse or neglect. Except when there is intentional infliction of injury to the abandoned infant, a criminal prosecution may not be initiated involving the abandonment of an infant that was no more than 30 days old and was surrendered to an emergency services provider.

Effect on Parental Rights Citation: Ann. Code §§ 40-6-405; 40-6-407; 40-6-411; 40-6-412; 40-6-414

Any Indian heritage brings the newborn within the jurisdiction of the Indian Child Welfare Act.

Upon receipt of notice that a newborn has been surrendered, the department shall:

• Request assistance from law enforcement officials to investigate and determine whether the newborn is a missing child
• Within 30 days, make reasonable efforts to identify and locate a parent who did not surrender the newborn

The department is not required to attempt to reunify the newborn with the newborn’s parents. The department shall place the newborn with prospective adoptive parents as soon as possible.

Any person alleging to be the biological parent of a newborn who was surrendered to an emergency services provider may, within 60 days of the date of surrender of the newborn, file an action with the court for custody. Before making a custody decision, the court shall determine whether the individual filing the custody action is the newborn’s biological parent. The putative father registry provisions apply to any court proceeding under this part.

In a custody action, the court shall determine custody of the newborn based on the newborn’s best interest with the goal of achieving permanent placement for the newborn at the earliest possible date.

A parent who surrenders a newborn and who does not file a custody action is presumed to have knowingly waived the parent’s parental rights to the newborn. If a custody action is not filed or if the parent is denied custody of the newborn, the department shall file a petition requesting appropriate relief with the goal of achieving permanent placement for the newborn at the earliest possible date.

Regulation of Private Domestic Adoption Expenses

Birth Parent Expenses Allowed Citation: Ann. Code §§ 42-7-101(1); 42-7-102(1), (2)

The adoptive parent may provide payment for the following services for the birth parent:

• Medical care or services
• Prenatal care
• Counseling related to providing information necessary to make an informed decision to voluntarily relinquish a child
• Travel or temporary living costs for the birth mother
• Legal fees incurred for services on behalf of the placing parent
• The reasonable costs incurred by a placing parent in a direct parental placement adoption to document the disclosures of medical and social history required by § 42-3-101
• Other reasonable costs related to adoption

A prospective adoptive parent may pay counseling expenses for a maximum of 10 hours of counseling.

A prospective adoptive parent may pay for legal costs entailed for providing legal counsel for one birth parent unless the birth parents elect joint representation. The right of a relinquishing parent to legal counsel paid by the prospective adoptive parent continues only until the relinquishment becomes irrevocable. An attorney may not represent both a birth parent and a prospective adoptive parent.

Birth Parent Expenses Not Allowed Citation: Ann. Code §§ 42-7-101(1)(k); 42-7-102

Costs related to adoption do not include education, vehicles, salary or wages, vacations, or permanent housing for the birth parent.

Allowable Payments for Arranging Adoption Citation: Ann. Code § 42-7-105(3)

A person who, as a condition for placement, relinquishment, or consent to the adoption of a child, knowingly offers, gives, agrees to give, solicits, accepts, or agrees to accept from another person, either directly or indirectly, anything other than the fees allowed under § 42-7-101 commits the offense of paying or charging excessive adoption process fees.

Allowable Payments for Relinquishing Child Citation: Ann. Code §§ 42-7-101(2); 42-7-105(4)

The payment of expenses may not be made contingent on the placement of a child for adoption or upon relinquishment of and consent to adoption of the child. If the adoption is not completed, a person who is authorized to make a specific payment is not liable for that payment unless the person has agreed in a signed writing with a birth parent or a provider of a service to make the payment regardless of the outcome of the proceeding for adoption.

It is illegal to require repayment or reimbursement of anything provided to a birth parent under § 42-7-101. All payments by the adoptive parent made on behalf of a birth parent pursuant to this section are considered a gift to the birth parent.

Allowable Fees Charged by Department/Agency Citation: Ann. Code § 42-7-101(1)

Reasonable adoption fees may be paid by the adoptive parent for the actual cost of services. The cost of services must relate to:

• A petition for adoption
• Placement of a child
• Foster care
• A preplacement evaluation

Accounting of Expenses Required by Court Citation: Ann. Code § 42-7-106

The department may review and investigate compliance with this title and may maintain an action in court to compel compliance

The Rights of Unmarried Fathers

Legal Definition of Father Ann. Code §§ 40-6-102; 42-1-103; 42-2-201

The term ‘parent and child relationship’ means the legal relationship existing between a child and the child’s natural or adoptive parents on which the law confers or imposes rights, privileges, duties, and obligations. It includes the mother and child relationship and the father and child relationship.

The term ‘birth parent’ means the woman who gave birth to the child or the father of genetic origin of the child. The term ‘parent’ means the birth or adoptive mother or the birth, adoptive, or legal father whose parental rights have not been terminated.

The term ‘putative father’ means an individual who may be a child’s birth father but who:

• Was not married to the child’s mother on or before the date that the child is born
• Has not established paternity of the child prior to the filing of a petition for termination of parental rights to the child for purposes of adoption

The term ‘putative father’ includes an individual who:

• Is younger than age 18
• Is not married to the child’s mother even though the individual is a presumed father within the meaning of § 40-6-105.

Paternity Registry Ann. Code §§ 42-2-202; 42-2-203; 42-2-204

The putative father registry is established within the vital statistics bureau of the department. The department shall adopt rules to administer the registry.

The purpose of the putative father registry is to provide notice of termination of parental rights to a putative father who asserts a parental interest in a child so that the putative father may appear in a proceeding and have an opportunity to establish that the putative father’s inchoate rights in the child have vested because a substantial relationship with the child has been established as provided in § 42-2-610.

In addition to any other notice to which the putative father is entitled, a putative father of a child who complies with the requirements of the putative father registry is entitled to notice of any proceedings involving termination of parental rights to the child.

A person who engages in sexual relations with a member of the opposite sex is presumed to know that a pregnancy could result.

An individual who is not married to the mother but who is presumed to be a father under § 40-6-105 and registers in accordance with this part is entitled to receive notice of a termination of parental rights proceeding.

Alternate Means to Establish Paternity Ann. Code §§ 40-6-105; 40-6-107

A man is presumed to be the natural father of a child when:

• The man and the child’s mother are or have been married to each other, and the child is born during the marriage or within 300 days after the marriage has ended.
• Before the child’s birth, the man and the child’s mother have attempted to marry each other, although the attempted marriage is or could be declared invalid, and:
  • If the attempted marriage could be declared invalid only by a court, the child is born during the marriage or within 300 days after its termination.
  • If the attempted marriage is invalid without a court order, the child is born within 300 days after the end of cohabitation.
• After the child’s birth, the man and the child’s mother have married or attempted to marry, and:
  • The child’s mother and alleged father have acknowledged his paternity in writing or in a paternity acknowledgment form that is provided by the Department of Public Health and Human Services.
  • With the man’s consent, he is named as the father on the child’s birth certificate.
  • The man is obligated to support the child under a written voluntary promise or court order.
  • While the child is a minor, the man receives the child into his home and openly represents the child to be his natural child.
  • The child’s mother and alleged father acknowledge his paternity of the child in a paternity acknowledgment form.
  • The scientific evidence resulting from a blood test shows a 95-percent or higher statistical probability of paternity.
  • The man is presumed to be the child’s natural father under the laws of the State or Indian territory in which the child was born.

An action to determine the existence of the father and child relationship for a child who has no presumed father may be brought by the child, the mother, a personal representative of the child, the department, or a man alleged to be the father.

Required Information Ann. Code § 42-2-205

In addition to any other notice to which the putative father is entitled, a putative father is entitled to notice of any proceedings to terminate parental rights involving a child whom the putative father might have fathered if he files the following information with the department in a timely manner:

• The putative father’s:
  • Full name
  • Address at which he may be served by certified mail, return receipt requested, with notice of a proceeding to terminate parental rights
  • Social Security number
  • Date of birth
  • Tribal affiliation, if applicable
• The mother’s:
  • Name, including all other names known to the putative father that the mother uses
  • Address, Social Security number, and date of birth, if known
• The child’s:
  • Name and place of birth, if known
  • The approximate date and location of a possible conception and the approximate expected date of delivery

A putative father shall register on a registration form prescribed by the department or with a legibly typed or handwritten statement that provides the required information and that is submitted to the department pursuant to § 42-2-207. The registration must be signed by the putative father and notarized.

A putative father who registers under this section is responsible for providing written updates regarding any change of the putative father’s name or address.

Revocation of Claim to Paternity Ann. Code §§ 42-2-223; 40-6-105

Unless a support order has been issued, a putative father may revoke a registration at any time by submitting to the department a signed, notarized statement revoking the registration.

An acknowledgment of paternity under § 40-6-105(1)(e) may be rescinded by a signatory at any time within 60 days after it was signed by filing a notice of withdrawal with the Department of Public Health and Human Services. The notice of withdrawal must include an affidavit attesting that a copy of the notice was provided to any parent who signed the acknowledgment form.

Access to Information Ann. Code § 42-2-224

The department shall furnish a certified copy of the putative father’s registration form upon written request by:

• A putative father whose name appears on the registration form being requested
• A mother whose name appears on the registration form being requested
• Upon reaching majority, a person who was the subject of a registration
• A prospective adoptive parent or an attorney representing a prospective adoptive parent in a direct parental placement adoption who has the notarized consent of the birth mother
• A licensed child-placing agency
• A court that presides over a pending adoption
• The child support enforcement division of the department
• A representative of the department involved in an adoption or a neglect and dependency proceeding

Use of Advertising and Facilitators in Adoptive Placements

Use of Advertisement Citation: Ann. Code § 42-7-105(1)(a)

No person, other than the Department of Public Health and Human Services or a licensed child-placing agency, may advertise in any public medium that the person knows of a child who is available for adoption, is willing to accept a child for adoption, or knows of prospective adoptive parents for a child.

Use of Intermediaries/Facilitators Citation: Ann. Code §§ 42-7-105(1)(b); 52-8-101

No person, other than the department or a licensed child-placing agency, may engage in placement activities. Placement activities include:

• Placement of a child for adoption or foster care
• Arranging or providing short-term foster care for a child pending an adoptive placement
• Facilitating placement of a child by maintaining a list, in any form, of birth parents or prospective adoptive or foster parents

Who May Adopt, Be Adopted, or Place a Child for Adoption?

Who May Adopt Citation: Ann. Code § 42-1-106

The following persons may adopt:

• A husband and wife jointly
• A stepparent
• An unmarried individual who is age 18 or older
• A married person singly who is age 18 or older and who is legally separated or whose spouse is incompetent

Who May Be Adopted Citation: Ann. Code § 42-1-105

The following persons may be adopted:

• A child who is legally free for adoption
• Any adult
• A stepchild

Who May Place a Child for Adoption Citation: Ann. Code § 42-1-107

A child may be placed for adoption only by the following:

• The Department of Public Health and Human Services or agency to which the child has been relinquished or has been authorized to place the child
• The child’s parents
• A guardian authorized by the court

Post-Adoption Laws

Access to Adoption Records

Who May Access Information Citation: Ann. Code § 42-6-102

Information may be provided to:

• The adult adopted person
• The adoptive or birth parent
• An extended family member of an adopted person or birth parent
• A court-appointed confidential intermediary

Access to Nonidentifying Information Citation: Ann. Code § 42-6-102

Upon request, all nonidentifying information will be provided to a person listed above.

Mutual Access to Identifying Information Citation: Ann. Code §§ 42-6-102; 42-6-103; 42-6-104

The department may disclose identifying information:

• To a court-appointed confidential intermediary
• As needed to assist an adopted person to become enrolled in an Indian Tribe
• To authorized personnel during a Federal Child and Family Services Review

Information may be disclosed to any person who consents in writing to the release of confidential information to other interested persons who have also consented. Identifying information pertaining to an adoption involving an adopted person who is still a child may not be disclosed based upon a consensual exchange of information unless the adopted person’s adoptive parent consents in writing.

An adult adopted person, an adoptive or birth parent, or an adult extended family member may petition the court for disclosure of identifying information regarding the adopted person, a birth child, a birth parent, or an extended family member.

After a petition has been filed, the court shall appoint a confidential intermediary who shall conduct a confidential search for the person being sought. If the intermediary locates the person being sought, a confidential inquiry must be made as to whether the located person consents to having his or her present identity disclosed to the petitioner. If the person being sought does not consent, identifying information regarding that person may be disclosed only upon order of the court for good cause shown. If the person being sought is found to be deceased, the court may order disclosure of identifying information to the petitioner.

Access to Original Birth Certificate Citation: Ann. Code § 42-6-109

For a person adopted on or before July 1, 1967, the department shall furnish a copy of the original birth certificate upon the written request of an adopted person.

For a person adopted between July 1, 1967 and September 30, 1997, the department shall furnish a copy of the original birth certificate upon a court order.

For a person adopted on or after October 1, 1997, the department shall furnish a copy of the original birth certificate upon the written request of an adopted person who is age 18 or older unless the birth parent has requested in writing that the original birth certificate not be automatically released, or by a court order.

For a person adopted on or after October 1, 1997, upon the request of an adoptive parent or an adopted person who is age 18 or older, the department shall issue a certificate of adoption that states the date and place of adoption, the date of birth of the adopted person, the name of each adoptive parent, and the name of the adopted person as provided in the decree.

A birth parent may request in writing to the Vital Statistics Bureau that the birth certificate for an adopted person not be released without a court order.

The department may release a copy of the adopted person’s original birth certificate if release of this document is required to assist an adopted person to become enrolled in or a member of an Indian Tribe.

Where the Information Can Be Located

Office of Vital Statistics, Montana Department of Public Health and Human Services

Intestate Inheritance Rights for Adopted Persons

Birth Parents in Relation to Adopted Person Citation: Ann. Code §§ 72-2-124; 42-4-311

An adopted individual is the child of an adopting parent or parents and not of the birth parents. Adoption of a child by the spouse of either birth parent has no effect on:

• The relationship between the child and that birth parent
• The right of the child or a descendant of the child to inherit from or through the other birth parent

Adoptive Parents in Relation to Adopted Person Citation: Ann. Code § 72-2-124

For purposes of intestate succession, a parent-child relationship exists between an adopted person and an adopting parent.

Adopted Persons Who Are Not Included in a Will Citation: Ann. Code §§ 72-2-332; 72-2-715

If a testator fails to provide in his or her will for any child who was adopted after the execution of the will, the omitted after-adopted child receives a share in the estate as follows:

• If the testator had no child living when he or she executed the will, an omitted after-adopted child receives a share in the estate equal in value to what the child would have received had the testator died intestate, unless the will gave all or substantially all of the estate to the other parent of the omitted child and that other parent survives the testator and is entitled to inherit under the will.
• If the testator had one or more children living when he or she executed the will, and the will gave property or an interest in property to one or more of the then-living children, then an omitted after-adopted child is entitled to share in the estate as follows:
  • The portion of the estate in which the omitted after-adopted child is entitled to share is limited to bequests made to the testator’s then-living children under the will.
  • The omitted after-adopted child is entitled to receive the share of the estate, as limited, that the child would have received had the testator included all omitted after-born and after-adopted children with the children to whom bequests were made under the will and had given an equal share of the estate to each child.

The above does not apply if:

• It appears from the will that the omission was intentional.
• The testator provided for the omitted after-adopted child by transfer outside the will with the intent that the transfer be in lieu of a testamentary provision.

Adopted individuals and their respective descendants, if appropriate to the class, are included in class gifts and other terms of relationship in accordance with the rules for intestate succession.

Postadoption Contact Agreements Between Birth and Adoptive Families

What may be included in postadoption contact agreements? Ann. Code § 42-5-301

Except as otherwise provided in this title, a decree of adoption terminates any existing order or written or oral agreement for contact or communication between the adoptee and the birth parents or family.

An express written agreement entered into between the placing parent and the prospective adoptive parent after the execution of a relinquishment and consent to adoption is independent of the adoption proceedings.

Who may be a party to a postadoption contact agreement? Ann. Code § 42-5-301

The agreement may be entered into between the placing parent and the prospective adoptive parent.

What is the role of the court in postadoption contact agreements? Ann. Code § 42-5-301

Any express written agreement entered into between the placing parent and the prospective adoptive parent after the execution of a relinquishment and consent to adoption is independent of the adoption proceedings, and any relinquishment and consent to adopt remains valid whether or not the agreement for contact or communication is later performed. Failure to perform an agreement is not grounds for setting aside an adoption decree.

Are agreements legally enforceable? Ann. Code § 42-5-301

The court may order that an agreement for contact or communication entered into under this section may not be enforced upon a finding that:

• Enforcement is detrimental to the child.
• Enforcement undermines the adoptive parent's parental authority.
• Due to a change in circumstances, compliance with the agreement would be unduly burdensome to one or more of the parties.

How may an agreement be terminated or modified?

This issue is not addressed in the statutes reviewed.

Laws Related to Intercountry Adoption

Effect and Recognition of a Foreign Adoption Decree

Ann. Code § 42-2-101

A decree or order of adoption has the same effect as a decree or order of adoption issued by a court of this State if the decree or order is entered by a court or administrative entity in another country acting pursuant to:

• That country’s laws
• Any convention or treaty on intercountry adoption that the United States has ratified

The rights and obligations of the parties must be determined as though the decree or order were issued by a court of this State.

Readoption After an Intercountry Adoption

This issue is not addressed in the statutes reviewed.

Application for a U.S. Birth Certificate

Ann. Code §§ 50-15-311(6); 50-15-223(8)

If the birth of an adopted child occurred in a foreign country and the adopted child was not a citizen of the United States at the time of birth, the department shall prepare a ‘Certificate of Foreign Birth,’ as required by § 50-15-223. If the adopted child was born in Canada, the department shall send a copy of the certificate of adoption, report of annulment of adoption, or amendment of a decree of adoption to the appropriate registration authority in Canada.

The department shall, upon request of the adopting parents, prepare and register a certificate of birth in this State for a person who was born in a foreign country and adopted through a district court in this State.

The certificate of birth must be established by the department upon receipt of a certificate of adoption, conforming to the requirements of § 50-15-311, from the court that reflects entry of an order of adoption, proof of the date and place of the child’s birth, and a request for the establishment of a certificate of birth from the court, the adopting parents, or the adoptee, if he or she is age 18 or older.

The certificate of birth must be labeled ‘Certificate of Foreign Birth’ and must contain the actual country of birth. A statement must be included on the certificate indicating that it is not evidence of U.S. citizenship for the child for whom it is issued.

After registration of the certificate of birth in the new name of the adoptee, the department shall seal and file the certificate of adoption. The certificate is not subject to inspection, except upon order of the district court, as provided by rule, or as otherwise provided by State law.

Source

Child Welfare Information Gateway. U.S. Department of Health and Human Services Administration for Children and Families. [1]

References