40-6-128. Proceeding to determine father's identity and terminate rights. (1) If a child is born out of wedlock and the mother executes or proposes to execute a release terminating the mother's rights to the child or if the child otherwise becomes the subject of an adoption proceeding, the agency or person to whom the child has been or is to be relinquished or the mother or person having custody of the child shall file a petition in the district court to terminate the parental rights of the father, unless the father's relationship to the child has been previously terminated or determined not to exist by the court. The court shall hold a hearing as soon as practical to determine the identity of the father and to determine or terminate the rights of the father as provided in this section and in 40-6-129 and 40-6-130. This section is not applicable if the father is a person whose consent to adoption is not required under 40-8-111.
     (2) Proof of service of a notice of intent to release must be filed with the court, or the putative father's verified acknowledgment of notice of intent to release must be filed with the court if the notice was given to the putative father. The court shall request the records and statistics bureau of the department of public health and human services to send to the court a copy of any notice of intent to claim paternity of the particular child. The records and statistics bureau shall send the court a copy of any notice that it has received.
     (3) If the mother has failed to name a putative father or has failed to file a notice of intent to release, the court shall cause inquiry to be made of the mother in an effort to identify the natural father. The inquiry must include the following:
     (a) whether the mother was married at the time of conception of the child or at any time after conception;
     (b) whether the mother was cohabiting with a person of the opposite sex at the time of conception or birth of the child;
     (c) whether the mother has received support payments or promises of support payments with respect to the child or in connection with the pregnancy; or
     (d) whether any person has formally or informally acknowledged or declared the person's possible paternity of the child.
     (4) Notwithstanding this section or any other provisions of law and in consideration of the mother's right to privacy, a mother of a child who is the subject of proceedings under this part may not be compelled to testify concerning or to divulge the identity of the father or possible father of that child.
     (5) Notice of the hearing must be served upon the following persons in the manner appropriate under the Montana Rules of Civil Procedure or any manner that the court shall direct:
     (a) a putative father who has timely filed a notice of intent to claim paternity as provided in 40-6-126 or 40-6-127;
     (b) a putative father who has not been served with a notice of intent to release at least 30 days before the expected date of delivery specified in the notice of intent to release;
     (c) any other person who was not served pursuant to 40-6-127(2) with a notice of intent to release and who the court, after inquiry of the mother or any other appropriate person, has reason to believe may be the father of the child.
     (6) The notice of hearing must inform the putative father that failure to appear at the hearing constitutes a denial of the putative father's interest in custody of the child, which denial will result in the court's termination of the putative father's rights to the child.
     (7) Proof of service of the notice of hearing required by subsection (5) must be filed with the court. A verified acknowledgment of service by the party to be served is proof of personal service. Notice of hearing is not required if the putative father is present at the hearing. A waiver of notice of hearing by a person entitled to receive it is sufficient. If a person has not been identified as the natural father or possible father, the court, on the basis of all information available, shall determine whether publication or public posting of notice of the proceeding is likely to lead to identification and if so shall order publication or public posting at the times and places and in the manner it considers appropriate. The name of the natural mother may be included in the publication only with the mother's written consent.
     (8) At the hearing, the court shall receive evidence as to the identity of the father of the child. Based upon the evidence received and the court's inquiry, the court shall enter a finding identifying the father or declaring that the identity of the father cannot be determined.
     (9) If the court finds that the father of the child is a person who did not receive either a timely notice of intent to release pursuant to 40-6-127 or a notice required pursuant to subsection (5) of this section and who has not waived the right to notice of hearing and is not present at the hearing, the court shall adjourn further proceedings until that person is served with a notice of hearing.

     History: En. 61-332 by Sec. 5, Ch. 422, L. 1977; R.C.M. 1947, 61-332; amd. Sec. 84, Ch. 418, L. 1995; amd. Sec. 150, Ch. 546, L. 1995.