Adoption Laws

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Consent to Adoption

Who Must Consent to an Adoption Citation: Cent. Code § 14-15-05

A petition to adopt a minor may be granted only if written consent to a particular adoption has been executed by:

The mother of the minor, whether by birth or adoption
The father of the minor if:
- The minor is the father’s child by adoption, or the father has otherwise legitimated the minor according to the laws of the place in which the adoption proceeding is brought.
- The person is presumed to be the biological father of the minor, provided the nonexistence of the father and child relationship between them has not been judicially determined.
Any individual lawfully entitled to custody of the minor or empowered to consent
The court having jurisdiction to determine custody of the minor if the legal guardian or custodian of the minor is not empowered to consent to the adoption
The spouse of the minor adopted person

Consent of Child Being Adopted Citation: Cent. Code § 14-15-05

A child who is age 10 or older must consent to the adoption.

When Parental Consent Is Not Needed Citation: Cent. Code § 14-15-06

Consent to adoption is not required of:

A parent who has deserted a child without affording means of identification or who has abandoned a child
A parent of a child in the custody of another if the parent for a period of at least 1 year has failed significantly without justifiable cause to communicate with the child or to provide for the care and support of the child
The father of a minor if the father’s consent is not required by § 14-15-05(1)
A parent who has relinquished the right to consent
A parent whose parental rights have been terminated
A parent judicially declared incompetent or mentally defective if the court dispenses with the parent’s consent
Any parent of the adopted person if the adopted person is an adult
Any legal guardian or lawful custodian of the child, other than a parent, who has failed to respond in writing to a request for consent for a period of 60 days or who, after examination of the guardian’s or custodian’s written reasons for withholding consent, is found by the court to be withholding consent unreasonably
The spouse of the adopted person if the failure of the spouse to consent to the adoption is excused by the court by reason of prolonged unexplained absence, unavailability, incapacity, or circumstances constituting an unreasonable withholding of consent
A parent of the minor if the failure of the parent to consent is excused by the court in the best interests of the child by reason of the parent’s prolonged unexplained absence, unavailability, incapacity, or significant failure, without justifiable cause, to establish a substantial relationship with the minor or to manifest a significant parental interest in the minor, or by reason of inability of the court to identify the parent

When Consent Can Be Executed Citation: Cent. Code § 14-15-07

The required consent to adoption may be executed at any time after the birth of the child.

How Consent Must Be Executed Citation: Cent. Code § 14-15-07

The required consent to adoption must be executed in the following manner:

If by the individual to be adopted, in the presence of the court
If by an agency, by the executive head or other authorized representative in the presence of an individual authorized to take acknowledgments
If by any other individual, in the presence of the court or in the presence of an individual authorized to take acknowledgments
If by a court, by appropriate order or certificate

Revocation of Consent Citation: Cent. Code § 14-15-08

A consent to adoption cannot be withdrawn after the entry of a decree of adoption.

A consent to adoption may be withdrawn before the entry of a decree of adoption if the court finds, after notice and opportunity to be heard is afforded to petitioner, the individual seeking the withdrawal, and the agency placing a child for adoption, that the withdrawal is in the best interests of the individual to be adopted and the court orders the withdrawal.

Criminal Background Checks for Prospective Foster and Adoptive Parents

Requirements for Foster Parents Cent. Code §§ 50-11-02; 50-11-02.1; Admin. Code § 75-03-14-04.1

A criminal history records check is required for a prospective foster parent prior to approving a foster care license. Conviction of an offense does not disqualify a person from licensure unless the department determines that the offense has a direct bearing upon that person’s ability to serve the public as the operator of a facility or that, following conviction of any offense, the person is not sufficiently rehabilitated under §12.1-33-02.1.

In regulation:A family foster care applicant, family foster care provider, or members of the family foster care home must not have been found guilty of, pled guilty to, or pled no contest to:

Homicide
Assault, threat, or coercion
Kidnapping
Gross sexual imposition
Corruption or solicitation of minors
Sexual abuse of wards
Sexual assault
Robbery
Burglary, if a class B felony
Promoting sexual performances by children
Promoting prostitution or facilitating prostitution
Child procurement
Other offenses, if the department determines that the individual has not been sufficiently rehabilitated

The department will not consider a claim that the individual has been sufficiently rehabilitated until any term of imprisonment, probation, or parole has elapsed without a subsequent charge or conviction. An offender’s completion of a period of 5 years after final discharge or release from any term of imprisonment, probation, or parole, without subsequent charge or conviction, is prima facie evidence of sufficient rehabilitation.

In the case of a misdemeanor simple assault, the department may determine that the individual has been sufficiently rehabilitated if 15 years have elapsed after final discharge or release from any term of imprisonment, probation, or parole without subsequent conviction.

Requirements for Adoptive Parents Cent. Code § 14-15-11

A criminal history records check is required for a prospective adoptive parent as part of the preplacement adoption assessment.

Grounds for Involuntary Termination of Parental Rights

Circumstances That Are Grounds for Termination of Parental Rights Cent. Code §§ 27-20-02; 27-20-44

The court may terminate the parental rights if:

The parent has abandoned the child.
The child is subjected to aggravated circumstances.
The child is a deprived child, and the court finds:
- The causes of the deprivation are likely to continue and for that reason the child is suffering or will likely suffer serious physical, mental, moral, or emotional harm.
- The child has been in foster care for at least 450 out of the previous 660 nights.

‘Aggravated circumstances’ means a parent:

Abandons, tortures, chronically abuses, or sexually abuses a child
Fails to make substantial, meaningful efforts to secure treatment for his or her addiction, mental illness, behavior disorder, or other conditions for 1 year or one-half of the child’s lifetime, measured in days
Engages in a sexual offense in which a child is the victim or intended victim
Commits one of the following crimes:
- Murder, manslaughter, or reckless homicide and the victim is another child of the parent
- Aiding, abetting, attempting, conspiring, or soliciting to commit one of the above crimes, and the victim is a child of the parent
- Aggravated assault, and the victim is a child of the parent and has suffered serious bodily injury
- Assault, aggravated assault, reckless endangerment, or terrorizing and a child is the victim or intended victim
Has been incarcerated under a sentence for which the latest release date is:
- In the case of a child age 9 or older, after the child’s majority
- In the case of a younger child, after the child is twice the child’s current age, measured in days
Subjects the child to prenatal exposure to chronic or severe use of alcohol or any controlled substance in a manner not lawfully prescribed
Allows the child to be present in an environment subjecting the child to a controlled substance, chemical substance, or drug paraphernalia

Circumstances That Are Exceptions to Termination of Parental Rights Cent. Code § 27-20-20.1

A petition for termination of parental rights need not be filed if:

The child is being cared for by a relative approved by the Department of Human Services.
The department has documented in the case plan a compelling reason for determining that filing such a petition would not be in the child’s best interests.
The department has determined:
- Reasonable efforts to preserve and reunify the family are required under § 27-20-32.2 to be made with respect to the child.
- The case plan provides such services as are necessary for the safe return of the child to the child’s home.
- Such services have not been provided consistent with time periods described in the case plan.

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: Admin. Code § 75-03-36-28

An adoption assessment must be completed on any prospective adoptive parent.

Agency or Person Conducting the Study Citation: Admin. Code § 75-03-36-28

A child-placing agency shall conduct the adoption assessment.

Qualifications for Adoptive Parents Citation: Gen. Stat. § 14-15-03

The following individuals may adopt:

A husband and wife together although one or both are minors
An unmarried adult
The unmarried father or mother of the child being adopted

Elements of a Home Study Citation: Admin. Code § 75-03-36-31

The following information shall be included in the adoption assessment:

Motivation for adoption
Strengths and challenges of each family member
The attitudes and feelings of family members and extended family regarding adoption
Evidence of stability of the adoptive parents’ marital or other significant relationships
The applicant’s understanding of and plans for assisting a minority child to understand and value his or her racial and cultural background
Attitudes of the applicant toward the birth parents and their reasons for placement
The applicant’s plan for discussing adoption with the child
The applicant’s emotional stability and maturity, including a history of treatment for substance abuse, mental health concerns, abuse or neglect issues, or other issues impacting the applicant’s emotional stability and maturity
The applicant’s parenting skills
The attitude of the applicant’s birth children or previously adopted children about adoption, if applicable
Reports of the physical examination of the applicant or self-disclosure of medical concerns, current within the past 12 months
The applicant’s ability to provide financially for the adopted child with or without financial assistance under subsidized adoption, including the availability of health insurance
The applicant’s references, including at least five personal and community character references
The applicant’s religious preference, if any
A description of the applicant’s home and community
Plans for child care if the applicant works
Plans for care of the child in the event of the death of the applicant after the adoption
Results of fingerprint-based criminal history records and child abuse and neglect index checks
Recommendations for adoption in regard to number, age, sex, characteristics, and special needs of children best served by the applicants

Grounds for Withholding Approval Citation: Admin. Code § 75-03-36-31

When an applicant is denied a positive recommendation for adoption, the child-placing agency shall inform the applicant, in writing, of the reasons the child cannot be placed in the applicant’s home.

When Studies Must Be Completed Citation: Admin. Code §§ 75-03-36-28; 75-03-36-31

A child-placing agency may not place a child into an adoptive home without a full adoption assessment being completed on the prospective adoptive parents, including required fingerprint-based criminal history record investigations and child abuse and neglect index investigations.

The child-placing agency shall require an adoptive family assessment be updated at least every 2 years from the date of completion of the original assessment until a child is placed into the home for the purpose of adoption.

Postplacement Study Requirements Citation: Gen. Stat. § 14-15-11; Admin. Code § 75-03-36-30

After the filing of a petition to adopt a child, an investigation must be made by a licensed child-placing agency to inquire into the conditions and antecedents of the child being adopted and the petitioner to determine whether the adoptive home is a suitable home for the child and whether the proposed adoption is in the best interests of the child.

The report of the investigation must contain:

A review of the child’s history
A preplacement adoption assessment of the petitioner, including a criminal history record investigation
A postplacement evaluation of the placement with a recommendation as to the granting of the petition for adoption
Any other information the court requires regarding the petitioner or child

In regulation: The child-placing agency shall:

Make continuing supportive services available for children and families following adoptive placement
Interview all members of the adoptive family in the family home
Have face-to-face visits with the child on a monthly basis primarily in the child’s residence
Provide assistance to the adoptive family in completing the legal adoption of the child

Exceptions for Stepparent or Relative Adoptions Citation: Gen. Stat. § 14-15-11

An investigation and report is not required in cases in which a stepparent is the petitioner. If the petitioner is a relative other than a stepparent of the child, the child has lived with the petitioner for at least 9 months, no allegations of abuse or neglect have been filed against the petitioner or any member of the petitioner’s household, and the court is satisfied that the proposed adoptive home is appropriate for the child, the court may waive the investigation and report.

Requirements for Interjurisdictional Placements Citation: Cent. Code § 14-13-01

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

This issue is not addressed in the statutes and regulations reviewed.

Infant Safe Haven Laws

Infant’s Age Citation: Cent. Code §§ 27-20-02; 50-25.1-15

An abandoned infant may be left at a hospital in an unharmed condition. The term ‘abandoned infant’ means a child who has been abandoned before reaching the age of 1 year.

Who May Relinquish the Infant Citation: Cent. Code § 50-25.1-15

A parent of an infant may leave the infant at any hospital. An agent of the parent may leave an abandoned infant at a hospital with the parent’s consent.

Who May Receive the Infant Citation: Cent. Code § 50-25.1-15

The child may be left at any hospital.

Responsibilities of the Safe Haven Provider Citation: Cent. Code § 50-25.1-15

A hospital shall accept an infant abandoned or left under this section. The hospital may request information regarding the parents and shall provide the parent or the agent with a medical history form and an envelope with the hospital’s return address. Neither the parent nor the agent is required to provide any information.

The hospital shall provide the parent or the agent with a numbered identification bracelet to link the parent or the agent to the abandoned infant. Possession of an identification bracelet does not entitle the bracelet holder to take custody of the abandoned infant on demand.

The hospital may provide the parent or the agent with any relevant information, including:

Information about the safe place for abandoned infant programs
Information about adoption and counseling services
Information about whom to contact if reunification is sought

Within 24 hours of receiving an abandoned infant, the hospital shall report to the Department of Human Services that an abandoned infant has been left at the hospital. The report may not be made before the parent or the agent leaves the hospital.

Immunity for the Provider Citation: Cent. Code § 50-25.1-15

The hospital and its employees and agents are immune from any criminal or civil liability for accepting an abandoned infant under this section.

Protection for Relinquishing Parent Citation: Cent. Code § 50-25.1-15

Neither the parent nor the parent’s agent is subject to prosecution for abuse, neglect, or abandonment for leaving the infant at a hospital.

Neither the parent nor the parent’s agent is required to provide any information. An individual who contacts the department about the child is under no obligation to respond to a request for information, and the department may not attempt to a compel response or to investigate the identity or background of the individual.

Effect on Parental Rights Citation: Cent. Code § 50-25.1-15

Upon receiving a report of an abandoned infant left at a hospital, the department shall proceed as required under this chapter if it appears that the abandoned infant was not harmed, except the department may not attempt to identify or contact the parent or the agent. If it appears the abandoned infant was harmed, the department shall initiate an assessment of the matter as required by law.

If an individual possesses a bracelet linking the individual to an abandoned infant and parental rights have not been terminated, possession of the bracelet creates a presumption that the individual has standing to participate in a protection services action. Possession of the bracelet does not create a presumption of maternity, paternity, or custody.

If an individual claiming to be the parent or the agent contacts the department and requests to be reunited with the abandoned infant, the department may identify or contact the individual. If an individual contacts the department seeking information only, the department may attempt to obtain information regarding the identity and medical history of the parents and may provide information regarding the procedures in an abandoned infant case.

Regulation of Private Domestic Adoption Expenses

Birth Parent Expenses Allowed Citation: Cent. Code §§ 14-15-10; 14-15.1-06

The report to the court must show any expenses incurred in connection with:

Medical expenses relating to prenatal care and the birth of the child that are not already covered by health insurance
Expenses for transportation, meals, and lodging incurred for placement of the child or in order to receive counseling, legal, or medical services related to the pregnancy, birth, or placement
Living expenses of the birth mother that are needed to maintain an adequate standard of living that the birth mother is unable to otherwise maintain because of loss of income or other support resulting from the pregnancy

Birth Parent Expenses Not Allowed Citation: Cent. Code §§ 14-15-10; 14-15.1-06

Payments may cover expenses incurred during the pregnancy-related incapacity but not for a period longer than 6 weeks following the delivery, unless the court determines within the 6-week period that the birth mother is unable to be employed due to physical limitations relating to the birth of the child.

Living expenses do not include expenses for lost wages, gifts, education, vacations, or other similar expenses of a birth mother.

Allowable Payments for Arranging Adoption Citation: Cent. Code § 12.1-31-05

It is unlawful for a person to knowingly offer, give, or agree to give to another a thing of value as consideration for the recipient’s furnishing or aiding another to furnish a minor child for the purposes of adoption.

Allowable Payments for Relinquishing Child Citation: Cent. Code §§ 12.1-31-05; 14-15-10

It is unlawful for a person to knowingly solicit, accept, or agree to accept from another a thing of value as consideration for the recipient’s furnishing or aiding another to furnish a minor child for the purposes of adoption.

Fees may not be contingent upon placement of the child for adoption, consent to adoption, or cooperation in the completion of adoption.

Allowable Fees Charged by Department/Agency Citation: Cent. Code § 14-15.1-06

Reasonable fees may be charged for professional services. ‘Reasonable fees’ may include:

Preplacement counseling, adoption assessment, placement of the child, foster care, or other preadoption services that must be paid directly to the provider of the services
Legal fees relating to the petition for relinquishment or adoption that must be paid directly to the provider of the services

Accounting of Expenses Required by Court Citation: Cent. Code § 14-15-10

The petitioner in any proceeding for the adoption of a minor shall file, before the petition is heard, a full accounting report in a manner acceptable to the court of all disbursements of anything of value made or agreed to be made by or on behalf of the petitioner in connection with the adoption

The Rights of Unmarried Fathers

Legal Definition of Father Cent. Code §§ 14-20-02; 14-20-10

An ‘acknowledged father’ is a man who has established a father-child relationship under §§ 14-20-11 through 14-20-24. An ‘adjudicated father’ is a man who has been adjudicated by a court of competent jurisdiction to be the father of a child.

An ‘alleged father’ is a man who alleges himself to be, or is alleged to be, the genetic father or a possible genetic father of a child, but whose paternity has not been determined. The term does not include:

A presumed father
A man whose parental rights have been terminated or declared not to exist
A male donor

A ‘presumed father’ is a man who, by operation of law under § 14-20-10, is recognized as the father of a child until that status is rebutted or confirmed in a judicial proceeding. A man is presumed to be the father of a child if:

He and the mother of the child are married to each other and the child is born during the marriage.
He and the mother of the child were married to each other and the child is born within 300 days after the marriage is terminated.
Before the birth of the child, he and the mother of the child married each other, even if the attempted marriage is or could be declared invalid, and the child is born during the marriage or within 300 days after its termination.
After the birth of the child, he and the mother of the child married each other, whether or not the marriage is or could be declared invalid, and he voluntarily asserted his paternity of the child, and:
- The assertion is in a record filed with the State Department of Health.
- He agreed to be and is named as the child’s father on the child’s birth certificate.
- He promised in a record to support the child as his own.
For the first 2 years of the child’s life, he resided in the same household with the child and openly held out the child as his own.

Paternity Registry

No

Alternate Means to Establish Paternity Cent. Code §§ 14-20-11; 14-20-12; 14-20-50

The mother of a child and a man claiming to be the genetic father of the child may sign an acknowledgment of paternity with intent to establish the man’s paternity.

A presumed father may sign or otherwise authenticate an acknowledgment of paternity.

A respondent in a proceeding to adjudicate parentage may admit to the paternity of a child by filing a pleading to that effect or by admitting paternity under penalty of perjury when making an appearance or during a hearing.

If the court finds that the admission of paternity satisfies the requirements of this section and finds that there is no reason to question the admission, the court shall issue an order adjudicating the child to be the child of the man admitting paternity.

Required Information Cent. Code § 14-20-12

An acknowledgment of paternity must:

Be in a record
Be signed, or otherwise authenticated, under penalty of perjury by the mother and by the man seeking to establish his paternity
State that the child whose paternity is being acknowledged:
- Does not have a presumed father, or has a presumed father whose full name is stated
- Does not have another acknowledged or adjudicated father
State whether there has been genetic testing and, if so, that the acknowledging man’s claim of paternity is consistent with the results of the testing
State that the signatories understand that the acknowledgment is the equivalent of a judicial adjudication of paternity of the child and that a challenge to the acknowledgment is permitted only under limited circumstances and is barred after 1 year

Revocation of Claim to Paternity Cent. Code §§ 14-20-17; 14-20-18

A signatory may rescind an acknowledgment of paternity by commencing a proceeding to rescind before the earlier of:

60 days after the effective date of the acknowledgment or denial
The date of the first hearing in a proceeding to which the signatory is a party, before a court to adjudicate an issue relating to the child, including a proceeding that establishes support

After the period for rescission has expired, a signatory of an acknowledgment of paternity may commence a proceeding to challenge the acknowledgment only:

On the basis of fraud, duress, or material mistake of fact
Within 1 year after the acknowledgment is filed with the State Department of Health

A party challenging an acknowledgment of paternity has the burden of proof.

Access to Information Cent. Code § 14-20-23

The State Department of Health may release information relating to the acknowledgment of paternity to:

A signatory of the acknowledgment
Courts
Appropriate State or Federal agencies of this or another State

Use of Advertising and Facilitators in Adoptive Placements

Use of Advertisement Citation: Cent. Code §§ 23-16-08; 50-11-06; 50-19-11; 50-12-17

No hospital providing maternity care may in any way advertise that it will give children for adoption or hold itself out, directly or indirectly, as being able to dispose of children; however, such hospitals may inform an unmarried mother of child-placing agencies licensed by the Department of Human Services.

No facility licensed to provide foster care may advertise children for adoption or be held out, directly or indirectly, as being able to dispose of children, without first being licensed to do so under chapter 50-12.

No licensed maternity home may in any way offer to advertise that it will give children for adoption or in any way offer to place a child or hold itself out, directly, or indirectly, as being able to place children for adoption but may inform a mother of licensed child-placing agencies.

A person may not advertise, without a license from the Department of Human Services to do so, in any public medium (1) that the person knows of a child who is available for adoption; (2) that the person is willing to accept a child for adoption; or (3) that the person knows of prospective adoptive parents for a child.

Use of Intermediaries/Facilitators Citation: Cent. Code § 50-12-17

A person may not place or cause to be placed any child in a family home for adoption without a license to do so from the Department of Human Services, except that a parent, upon giving written notice to the department, may place his or her child in the home of the child’s parent, stepparent, grandparent, adult brother or sister, adult uncle or aunt, or guardian for adoption by the person receiving the child.

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

Who May Adopt Citation: Cent. Code § 14-15-03

The following persons may adopt:

A husband and wife jointly if they are not separated, even if one or both are minors
An unmarried adult
The unmarried parent of the person to be adopted
A married individual singly if the individual to be adopted is not the adopting person’s spouse, and if:
- The petitioner is a stepparent of the individual to be adopted, and the biological or legal parent of the individual to be adopted consents.
- The petitioner and his or her spouse are legally separated.
- The failure of the spouse to join in the petition or to consent to the adoption is excused by the court by reason of prolonged unexplained absence, unavailability, incapacity, or circumstances constituting an unreasonable withholding of consent.

Who May Be Adopted Citation: Cent. Code § 14-15-02

Any individual may be adopted.

Who May Place a Child for Adoption Citation: Cent. Code §§ 14-15-05; 50-06-01.4

The child may be placed or consent may be given by any of the following:

The child’s parent(s), whether by birth or adoption
The custodian of the child
The Department of Human Services
A licensed child-placing agency

Post-Adoption Laws

Access to Adoption Records

Who May Access Information Citation: Cent. Code § 14-15-16

Nonidentifying information must be provided to:

The adoptive parents
The adult adopted person
The birth parent

Identifying information may be provided to:

The birth parents
The adoptive parents
The adopted person
Adult birth siblings
The adult child of an adopted person

Access to Nonidentifying Information Citation: Cent. Code § 14-15-16; 14-15-01(12)

Nonidentifying information, if known, concerning undisclosed birth parents must be furnished upon written request to the individuals listed above. The term ‘nonidentifying adoptive information’ includes:

The age of the birth parent at the time of the child’s birth
The heritage and religion of the birth parent
The education completed by the birth parent at the time of the child’s birth
The general physical appearance of birth parent at the time of the child’s birth, including the height, weight, color of hair, eyes, skin, and other information of a similar nature
The talents, hobbies, and special interests of the birth parents
The existence of any other children born to either birth parent
The reasons for the child being placed for adoption
The vocation of the birth parent in general terms
The health history of the birth parents and blood relatives

Mutual Access to Identifying Information Citation: Cent. Code § 14-15-16

Before the child reaches adulthood, exchanges of identifying information may take place between the birth parents, adoptive parents, and adopted person. Disclosure of a party’s identifying information may not occur unless the party consents to disclosure. If one parent objects, the identifying information disclosed by the agency may only relate to the consenting parent or parents.

An adopted person who is age 18 or older may request the department to initiate the disclosure of information identifying his or her birth parents or adult birth sibling. A birth parent or adult birth sibling may request the department to initiate the disclosure of information identifying that individual. An adult child of an adopted person may request the department to initiate the disclosure of information identifying the adopted person’s birth parents.

Within 90 days after receiving a request, the child-placing agency shall make complete and reasonable efforts to notify the individual or individuals that a disclosure of identifying information has been requested. An adopted person, birth parent, or birth sibling may authorize disclosure, refuse to authorize disclosure, or take no action. If no action is taken in response to a request, the child-placing agency must treat that as a refusal to authorize disclosure, except that it does not preclude disclosure after the person’s death.

Upon application to the department by an adult adopted person or the parent or guardian of a minor adopted person, the department may investigate to determine the adopted person’s eligibility for enrollment as a member of an Indian Tribe.

Access to Original Birth Certificate Citation: Cent. Code § 23-02.1-18

The original birth record is available only upon order of a court or as provided by rules and regulations.

Where the Information Can Be Located

North Dakota Department of Human Services, Adoption Search/Disclosure

Intestate Inheritance Rights for Adopted Persons

Birth Parents in Relation to Adopted Person Citation: Cent. Code § 14-15-14

Except with respect to the spouse of a petitioner or relatives of the spouse, a final decree of adoption terminates all legal relationships between the adopted person and the person’s birth relatives, including the birth parents, so that the adopted person thereafter is a stranger to his or her former relatives for all purposes, including inheritance.

If a parent of a child dies without the relationship of parent and child having been previously terminated, and a spouse of the surviving parent thereafter adopts the child, the child’s right of inheritance from or through the deceased parent is unaffected by the adoption.

Adoptive Parents in Relation to Adopted Person Citation: Cent. Code § 14-15-14

A final decree of adoption creates the relationship of parent and child between petitioner and the adopted individual, as if the adopted individual were a legitimate blood descendant of the petitioner, for all purposes including inheritance.

Adopted Persons Who Are Not Included in a Will Citation: Cent. Code §§ 30.1-06-02 (2-302); 30.1-09.1-05 (2-705)

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 that which the child would have received had the testator died intestate, unless the will gave all or substantially all 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, an omitted after-adopted child is entitled to share in the estate as follows:
- The portion of the estate that 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 above, that the child would have received had the testator included all omitted after-born and after-adopted children with the children to whom bequest were made under the will and had given an equal share of the estate to each child.

None of the above applies 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, individuals born out of wedlock, 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

These issues are not addressed in the statutes reviewed.

Laws Related to Intercountry Adoption

Effect and Recognition of a Foreign Adoption Decree

Cent. Code § 14-15-17(1)

A decree of court establishing the relationship of parent and child by adoption issued pursuant to due process of law by a court of any other jurisdiction within or outside of the United States must be recognized in this State, and the rights and obligations of the parties as to matters within the jurisdiction of this State must be determined as though the decree were issued by a court of this State.

Readoption After an Intercountry Adoption

Cent. Code § 14-15-17(2)

To obtain a validation of a foreign decree of adoption, the adoptive parent shall provide to the court:

A petition for validation of foreign adoption
An admission stamp in the adoptee’s passport that indicates that he or she was admitted to the United States with an IR-3 visa
The adoptee’s foreign birth certificate and English translation
The adoptee’s foreign adoption decree and English translation
A signed affidavit from the agency that states that the foreign adoption is valid and states the name by which the adoptee is to be known

The petition for validation of foreign adoption must be signed and verified by the petitioner, filed with the clerk of the court, and state:

The date and place of birth of the adoptee, if known
The name to be used for the adoptee whose foreign adoption decree is being petitioned for validation
The date the petitioner acquired custody or the date of placement of the adoptee and the name of the foreign country's placing agency
The full name, age, place, and duration of residence of the petitioner
The marital status of the petitioner, including the date and place of marriage, if married

Upon a finding that these requirements have been met, the court shall issue a decree of validation of foreign adoption. The clerk of court shall forward a copy of the decree of validation of foreign adoption to the Registrar of Vital Statistics for the issuance of a birth record in accordance with § 14-15-18.

Application for a U.S. Birth Certificate

Cent. Code §§ 14-15-18; 23-02.1-18(2)

Within 30 days after a decree of validation of foreign adoption becomes final, the clerk of the court shall prepare an application for a birth record in the new name of the adoptee and forward the application to the appropriate vital statistics office and forward a copy of the decree to the department of this State for statistical purposes. In the case of the adoption of a person born outside of the United States, the court may make findings, based on evidence from the petitioner and other reliable State or Federal sources, on the date and place of birth and parentage of the adoptee. These findings must be certified by the court and included with the report of adoption filed with the State Registrar of Vital Statistics.

For a person born in a foreign country whose adoptive parents are residents of the State of North Dakota at the time of the adoption, the State Registrar of Vital Statistics shall prepare a new birth record:

In the case of a foreign-born person adopted in North Dakota, upon presentation of a report of adoption as required by § 23-02.1-17
In the case of a foreign-born person adopted outside the State of North Dakota or outside the United States, or in the State of North Dakota prior to July 1, 1979, upon presentation of a certified copy of the adoption decree, and:
- A certified copy of the birth record of the adoptee
- An affidavit of an adoptive parent setting forth the true or probable date and place of birth and parentage of the adoptee

Any certification of a birth record issued under this subsection must be in the same form as other certifications of birth records issued in this State, except that it must state that it does not purport to be evidence of U.S. citizenship.

Source

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

References

North Dakota

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