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HOUSE BILL NO. 455
INTRODUCED BY L. SOFT, S. KITZENBERG
AN ACT GENERALLY REVISING THE LAWS RELATING TO ADOPTION; AMENDING SECTIONS 42-1-105, 42-2-206, 42-2-217, 42-2-412, 42-2-607, 42-2-609, 42-2-610, 42-2-619, 42-3-203, 42-3-212, 42-3-213, 42-4-302, 42-4-303, 42-4-304, 42-4-309, 42-4-310, 42-5-101, 42-5-109, AND 42-5-202, MCA; REPEALING SECTION 42-4-305, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Section 42-1-105, MCA, is amended to read:
"42-1-105. Who may be adopted. (1) A child is legally free for adoption if:
(a) the child does not have a living parent;
(b) the parental rights of the living parents of the child have been terminated according to the laws of this state or of another jurisdiction; or
(c) the living parents, guardian authorized by the court, or department or agency with custody of the child consent to the adoption.
(2) An adult may be adopted as provided in 42-4-401 through 42-4-405.
(3) A stepchild may be adopted as provided in 42-4-301 through
42-4-305 42-4-304 and 42-4-309 through 42-4-312."
Section 2. Section 42-2-206, MCA, is amended to read:
"42-2-206. When putative father to register -- actual knowledge of pregnancy not required. (1) In order to be
entitled, because of registration, to receive notice of a termination of parental rights proceeding, a putative father's
registration form complying with the requirements of 42-2-205 must be received by the department not later than
prior to a hearing to terminate parental rights 72 hours after the child's birth.
(2) A putative father may file all information required by 42-2-205 before a child's birth even though the putative father has no actual knowledge that a pregnancy has occurred or that a pregnancy has continued through gestation."
Section 3. Section 42-2-217, MCA, is amended to read:
(Effective October 1, 1998) Registry search -- request -- affidavit. (1) The following persons may at any
time request that the department search the registry to determine whether a putative father is registered in relation to a child
who is or may be the subject of a proceeding to terminate parental rights:
(a) a representative of the department;
(b) a representative of an agency when the agency is or may be arranging an adoption;
(c) 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; or
(d) any woman who is the subject of a registration.
When a petition to terminate parental rights for purposes of an adoption is filed, the petitioner shall: (a) request that the department search the registry at least 1 day after the expiration of the period specified under
42-2-206; and (b) file an affidavit prepared by the department in response to a request under subsection (2)(a) with the court presiding
over the termination of parental rights proceeding under 42-2-603. The affidavit must meet Upon request of a person listed
in subsection (1), the department shall submit an affidavit pursuant to the requirements of subsections (4) and (5).
(3) A request for information about a registration from the department must be in writing.
(4) Not later than 5 days after receiving a request
under subsection (2)(a) for a registry search, the department shall
submit an affidavit to the requestor verifying whether a putative father has registered within the period allowed under
42-2-206 in relation to a mother whose child or expected child is the subject of the termination proceeding.
(5) Whenever the department finds that one or more putative fathers are registered, the department shall:
(a) submit a copy of each registration form with the department's affidavit; and
(b) include in the affidavit the date that the department representative, agency, or attorney submitted the request for the search.
(6) A court may not issue an order terminating parental rights unless the department's affidavit under subsection (5) is filed with the court."
Section 4. Section 42-2-412, MCA, is amended to read:
"42-2-412. Content of relinquishment and consent to adopt. (1) A relinquishment and consent to adopt must be in writing and must contain:
(a) the date, place, and time of the execution of relinquishment and consent to adopt;
(b) the name, date of birth, and current mailing address of the individual executing the relinquishment and consent to adopt;
(c) the date of birth and the name of the child to be adopted; and
(d) the name, address, and telephone numbers of the department or agency to which the child is being relinquished or the
name, address, and telephone numbers of the prospective adoptive parent
or the lawyer representing the prospective
adoptive parent with whom the individual executing the relinquishment and consent has placed or intends to place the child
(2) A relinquishment and consent to adopt executed by a parent or guardian must state that the parent or guardian executing the document is voluntarily and unequivocally consenting to the:
(a) permanent transfer of legal and physical custody of the child to the department or agency for the purposes of adoption; or
(b) transfer of permanent legal and physical custody to, and the adoption of the child by, a specific identified adoptive parent whom the parent or guardian has selected.
(3) A relinquishment and consent to adopt must state:
(a) that after the document is signed or confirmed in substantial compliance with this section, it is final and, except under a circumstance stated in 42-2-411, may not be revoked or set aside for any reason, including the failure of an adoptive parent to permit the individual executing the relinquishment and consent to adopt to visit or communicate with the child;
(b) that the
adoption will extinguish relinquishment will result in the extinguishment of all parental rights and obligations
that the individual executing the relinquishment and consent to adopt has with respect to the child, except for arrearages of
child support unless the arrearages are waived by the person to whom they are owed, and that the relinquishment will remain
valid whether or not any agreement for visitation or communication with the child is later performed;
(c) that the individual executing the relinquishment and consent to
adoption adopt has:
(i) received a copy of the relinquishment and consent to
(ii) received a copy of a written agreement by the department, agency, or prospective adoptive parent to accept temporary custody and to provide support and care to the child until an adoption petition is granted or denied;
(iii) if required, received counseling services
and information about adoption pursuant to 42-2-409 explaining the
meaning and consequences of an adoption;
(d) in direct parental placement adoptions, that the individual has:
(i) been advised if the individual is: (A)(i) if a minor parent, been advised by a lawyer who is not representing an the adoptive parent or the agency to which
the child is being relinquished; or (B)(ii) if an adult, been advised of the right to have a lawyer who is not representing an the adoptive parent or the
agency and whose;
(iii) been advised that the attorney fees are allowable expenses that can be paid by the prospective adoptive parents; and
(ii)(iv) been provided with a copy of the prospective adoptive parent's preplacement evaluation;
(e) in agency and direct parental placement adoptions, that the individual has:
(i) been advised of the obligation to provide the medical and social history information required under 42-3-101 pertaining to disclosures; and
(ii) not received or been promised any money or anything of value for execution of the relinquishment and consent to adopt, except for payments authorized by 42-7-101 and 42-7-102.
(4) A relinquishment and consent to adopt may provide that the individual who is relinquishing waives notice of any proceeding for adoption."
Section 5. Section 42-2-607, MCA, is amended to read:
"42-2-607. Grounds for termination of parental rights. The court may terminate a parent's rights to a child who is the subject of an adoption proceeding based upon:
(1) the voluntary acts of the parent in:
(a) executing a voluntary relinquishment and consent to adopt;
(b) submitting a notarized denial of paternity executed pursuant to 42-2-421; or
(c) submitting a notarized acknowledgment of paternity and denial of interest in custody of the child executed pursuant to 42-2-422;
(2) a determination under 42-2-608 that the parent is unfit;
(3) a determination under 42-2-609 that the relationship of parent and child does not exist;
(4) a determination under 42-2-610 that a putative father has failed to establish and maintain a substantial relationship with the child; or
(4)(5) a determination that the parent has irrevocably waived parental rights by failing to timely act to protect the
Section 6. Section 42-2-609, MCA, is amended to read:
"42-2-609. Determination that no parent and child relationship exists. For purposes of making a child available for adoption, the court may terminate the parental rights of a putative father on the grounds that the parent and child relationship does not exist if:
(1) a judicial determination is made under 40-6-107 that the parent and child relationship does not exist. This includes the termination of the parental rights of the husband of the mother who is placing the child for adoption or the parental rights of an individual who is a presumed father of the child.
(2) a determination is made that:
(a) an individual has not timely registered with the putative father registry;
a person an individual has not been adjudicated, in Montana, to be the father of the child for the purpose of child
a person an individual has not been recorded on the child's birth certificate as the child's father;
a person is an individual has not openly living lived with the child and the child's mother at the time that the
proceeding is initiated or at the time that the child was placed in the care of an authorized agency and a person an individual
is not representing to the public that the person individual is the child's father; or and
(e) the child's mother was not married to the person who is the subject of the termination proceedings at the probable time of the child's conception or at the time that the child was born; or
(3) a putative father
who appears at the hearing but is unable to establish by a preponderance of the evidence the
minimum requirements provided in 42-2-610 for demonstrating the establishment of a substantial relationship with the
Section 7. Section 42-2-610, MCA, is amended to read:
"42-2-610. Putative father -- termination based upon failure to establish substantial relationship. (1) The parental rights of a putative father may be terminated by the court if the putative father has failed to timely establish and maintain a substantial relationship with the child.
(2) A putative father who is not married to the child's mother but who has openly lived with the child since the child's birth or for a period of 6 months immediately preceding placement of the child with adoptive parents and has openly claimed to be the father of the child during that period is considered to have developed a substantial relationship with the child and to have otherwise met the requirements of this section.
(3) In order to meet the minimal showing of having established a substantial relationship with regard to a child who is the subject of an adoption proceeding, a putative father has the burden of showing that the putative father has:
(a) demonstrated a full commitment to the responsibilities of parenthood by providing financial support for the child in a fair and reasonable sum and in accordance with the putative father's ability and by either:
(i) visiting the child at least monthly when physically and financially able to do so; or
(ii) having regular contact with the child or with the person or agency having the care and custody of the child when physically and financially able to do so; and
(b) manifested an ability and willingness to assume legal and physical custody of the child if the child was not in the physical custody of the other parent.
(4) In order to meet the minimal showing of having established a substantial relationship with regard to a child who is
the subject of an adoption proceeding involving a child who is under 6 months of age at the time that the child becomes the
subject of adoption proceedings, a putative father has the burden to show that
: (a) the putative father has manifested a full commitment to parental responsibilities by:
(a) performing all of the acts described in this subsection (4) prior to the time that the mother executed a relinquishment
for adoption, including registering with the putative father registry to adopt; and
(b) if the putative father had actual knowledge of the pregnancy, paying a fair and reasonable amount of the expenses incurred in connection with the pregnancy and the child's birth in accordance with the putative father's means when not prevented from doing so by the person or authorized agency having lawful custody of the child;
(c) making reasonable and consistent payments, in accordance with the putative father's means, for the support of the child since birth;
(d) visiting regularly with the child; and
(e) manifesting an ability and willingness to assume legal and physical custody of the child if, during this time, the child was not in the physical custody of the mother.
(5) The subjective intent of a putative father, whether expressed or otherwise, unsupported by evidence of acts specified in this section does not preclude a determination that the father failed to meet the requirements of this section."
Section 8. Section 42-2-619, MCA, is amended to read:
"42-2-619. Expediency. A contested termination of parental rights action must take precedence over other cases and
matters in the court or on appeal. The court shall examine any issues raised in challenging termination of a parent's rights or
regarding the validity of any
interlocutory or final adoption decree and shall render a decision as soon as possible."
Section 9. Section 42-3-203, MCA, is amended to read:
"42-3-203. Information to be reviewed in conducting preplacement evaluation. (1) A preplacement evaluation must include a review of the following information about the prospective adoptive parent:
(a) a check of criminal conviction data, data on substantiated abuse or neglect of a child under Title 41, chapter 3, and
data pertaining to any involvement in incidents of domestic violence
by any person over the age of 13 living in the
(b) medical and social history and current health;
(c) assessment of potential parenting skills;
(d) assessment of ability to provide adequate financial support for a child; and
(e) assessment of the level of knowledge and awareness of adoption issues, including, when appropriate, matters relating to open, interracial, cross-cultural, and special needs adoptions.
(2) (a) The prospective adoptive parent, the department of justice, and other state, county, and local agencies, after
written notice to the subject of the study, shall give the
department or agency evaluator completing the adoption study
substantiated data pertaining to criminal convictions and any reports concerning domestic violence and substantiated abuse
or neglect of children or vulnerable adults.
(b) The adoption study
must may also include a check of the youth court records of each any person over the age of 13
living in the prospective home. Pursuant to 41-5-215 and 41-5-216, the youth court shall release the requested information
to the agency or department evaluator completing the adoption study. The 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
(3) 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."
Section 10. Section 42-3-212, MCA, is amended to read:
"42-3-212. Court waiver for relatives.
The In a direct parental placement adoption, if the court is satisfied that
adoption is in the best interests of the child, the court may waive the requirement of a preplacement evaluation when a
parent or guardian places a child for adoption directly with an extended family member of the child. A postplacement
evaluation must be conducted during the pendency of a proceeding for adoption."
Section 11. Section 42-3-213, MCA, is amended to read:
"42-3-213. Filing of evaluation in adoption proceedings. (1) In a direct parental placement adoption, the preplacement evaluation report must be filed with the court in support of the petition to terminate parental rights for purposes of adoption.
(2) In an adoption arranged by the department or a licensed child-placing agency, the preplacement evaluation report must be permanently maintained in the files of the department or the licensed child-placing agency."
Section 12. Section 42-4-302, MCA, is amended to read:
"42-4-302. Standing to adopt stepchild. (1) A stepparent has standing to file a petition for adoption of a minor
stepchild child of the stepparent's spouse if:
(a) the spouse has
sole legal and physical custody of the child and the child has been in the physical custody of the
spouse and the stepparent during the 60 days preceding the filing of a petition for adoption;
(b) the spouse is deceased or mentally incompetent but, before dying or being judicially declared mentally incompetent, had legal and physical custody of the child, and the child has resided primarily with the stepparent during the 12 months preceding the filing of the petition; or
(c) the department or an agency placed the child with the stepparent.
(2) For good cause shown, a court may allow an individual who is not the stepparent but who has the consent of the custodial parent of a child to file a petition for adoption. The petition must be treated as if the petitioner were a stepparent.
(3) A petition for adoption by a stepparent may be joined with a petition for termination of parental rights."
Section 13. Section 42-4-303, MCA, is amended to read:
"42-4-303. Consent to adoption. (1) Upon the filing of the petition for adoption by the stepparent, the child's custodial
parent shall file consent to adoption executed pursuant to 42-4-304
(2) If the child has attained 12 years of age, the child
must shall consent to the adoption."
Section 14. Section 42-4-304, MCA, is amended to read:
"42-4-304. Consent to adoption -- stepparent's spouse. (1) A consent to adoption executed by a parent who is the stepparent's spouse must be signed in the presence of an individual authorized to take acknowledgments.
(2) A consent must be in writing and must state that:
(a) the parent executing the consent has legal and physical custody of the
parent's child and voluntarily and
unequivocally consents to the adoption of the child by the stepparent;
(b) the adoption will not terminate the parental relationship between the parent executing the consent and the child; and
(c) the parent executing the consent understands and agrees that:
(i) the adoption will terminate the relationship of parent and child between the child's other parent and the child and will terminate any existing court order for custody, visitation, or communication with the child;
(ii) the child and any descendant of the child will retain rights of inheritance from or through the child's other parent; and
(iii) a court order for visitation or communication with the child by an individual related to the child through the parent
consent relinquishment or an agreement or order concerning another individual that is approved by the court
survives the decree of adoption, but that failure to comply with the terms of the order or agreement is not a ground for
revoking or setting aside the consent or the adoption."
Section 15. Section 42-4-309, MCA, is amended to read:
Postplacement Preplacement and postplacement evaluation period -- waiver. If the child is a stepchild
or a member of the extended family of the petitioner, the court may, if 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 period and the postplacement evaluation report and grant a decree of adoption."
Section 16. Section 42-4-310, MCA, is amended to read:
"42-4-310. Petition for adoption -- notice -- hearing. A stepparent who desires to adopt a stepchild
must file a shall
obtain an order of termination of parental rights of the child's noncustodial parent prior to or contemporaneously with the
petition to adopt. Any necessary consents must be filed with the petition for adoption. , any necessary consents, any required
postplacement evaluation, give notice Notice of the hearing on the petition , must be given, and the stepparent shall attend a
the hearing conducted by the court."
Section 17. Section 42-5-101, MCA, is amended to read:
"42-5-101. Petition for adoption. (1) A petition for adoption
must be filed in triplicate, must be notarized by the
petitioners , and must specify:
(a) the full names, ages, and place and duration of residence of the petitioners;
(b) the current marital status of petitioners and, if married, the place and date of the marriage;
(c) the circumstances under which the petitioners obtained physical custody of the child and the name of the individual
who that placed the child;
(d) the date and place of birth of the child, if known;
(e) the name used for the child in the proceeding and, if a change in name is desired, the full name by which the child is to be known;
(f) that it is the desire of the petitioners that the relationship of parent and child be established between the petitioners and the child and to have all the rights and be subject to all the duties of that relationship;
(g) a full description and statement of value of all property owned or possessed by the child;
(h) the facts, if any, that excuse consent on the part of a person whose consent is required for the adoption;
(i) that any applicable law governing interstate or intercountry placement was complied with;
(j) that, if applicable, the Indian Child Welfare Act, 25 U.S.C. 1901, et seq., was complied with;
(k) whether a previous petition has been filed by the
petitioner petitioners to adopt the child at issue or any other child in
any court and the disposition of the petitions; and
(l) the name and address, if known, of any person who is entitled to receive notice of the petition for adoption.
(2) There must be attached to or accompanying the petition:
(a) any written consent required by
42-4-405 and 42-5-101 through 42-5-109 42-2-301;
(b) a certified copy of any court order terminating the rights of the child's parents;
(c) a certified copy of any existing court order in any pending proceeding concerning custody of or visitation with the child;
(d) a copy of any agreement with a public agency to provide a subsidy for the benefit of the child with a special need;
(e) the postplacement evaluation prepared pursuant to 42-4-113 or 42-4-209;
(f) a disclosure of any disbursements made in connection with the adoption proceeding.
(3) One copy of the petition must be retained by the court. A copy must be sent to:
(a) the department or to the agency participating in the adoption proceeding; or
(b) the parent placing the child for adoption in a direct parental placement adoption."
Section 18. Section 42-5-109, MCA, is amended to read:
"42-5-109. Decree of adoption. A decree of adoption must state:
(1) the original name of the child;
(2) the name of the petitioner for adoption;
(3) whether the petitioner is married or unmarried;
(4) whether the petitioner is a stepparent of the child;
(5) the name by which the child is to be known;
(6) for a child born in Montana, a direction to the vital statistics bureau to issue a new birth certificate unless the adoptee is 12 years of age or older and requests that a new certificate not be issued;
(7) the child's date and place of birth, if known;
(8) the effect of the decree of adoption as stated in 42-5-202;
(9) that the adoption is in the best interests of the child; and
(10) if known, whether
the either birth mother parent objects to the release of the original birth certificate information
upon the adoptee reaching 18 years of age."
Section 19. Section 42-5-202, MCA, is amended to read:
"42-5-202. Effect of decree. (1) After the decree of adoption is entered:
(a) the relationship of parent and child and all the rights, duties, and other legal consequences of the relation of parent and child exist between the adoptee and the adoptive parent and the kindred of the adoptive parent;
(b) the former parents and the kindred of the former parents of the adoptee, unless they are the adoptive parents or the spouse of an adoptive parent, are relieved of all parental responsibilities for the adoptee and have no rights over the adoptee except for a former parent's duty to pay arrearages for child support.
(2) A decree of adoption
should must include a notice to the vital statistics bureau as to the if it is known that either
birth mother's consent parent objects to release of the information on the original birth certificate upon the adoptee reaching
18 years of age.
(3) The relationship of parent and child for the purposes of intestate succession is governed by Title 72."
Section 20. Repealer. Section 42-4-305, MCA, is repealed.
Section 21. Effective date. [This act] is effective on passage and approval.
- END -
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