Judy A. Williams, an attorney in our Billings office, is a certified Child Welfare Law Specialist with extensive experience in all types of adoptions.
The information provided below is a simplified overview of adoptions and should not be relied upon without consulting an attorney. Each adoptive situation is unique and general information cannot cover all of the factors which must be considered and addressed in an adoption.
What is Adoption?
Adoption is . . . “the act of creating the legal relationship between parent and child when it does not exist genetically.” MCA 42-1-103(2).
Adoption must follow strict legal processes and requires that a Judge approve the adoption before the adoption is finalized.
After an adoption, the adoptive parents and child have all the rights and responsibilities of the natural parent-child relationship. This includes the adopting parent’s duty to pay child support and the adopted child’s right to inherit from the adopting parent. The adoption process terminates the parental rights and duties of the child’s birth parent, except the duty to pay any past due child support. MCA 42-2-403, 42-4-312.
Who can be adopted?
According to MCA 42-1-105 (1)(a)-(c), a child can be adopted if:
- the child has no living parent
- the rights of the child’s living parents or guardians have been terminated by a Court; or
- a parent, the Department of Public Health and Human Services (DPHHS), or a licensed child placing agency with legal custody of the child consents to the adoption in writing.
An adult may be adopted by another adult without the consent of his/her birth parents. MCA 42-4-401.
Who may adopt a child?
According to MCA 42-1-106 the following individuals who meet the legal requirements are eligible to adopt:
- a married couple, including a same-sex couple;
- a stepparent or other relative who meets the legal definition of extended family;
- an unmarried person over age 18; or
- a married person over age 18 who is legally separated from his/her spouse or whose spouse has been declared incompetent.
What types of adoption are available in Montana?
- direct parental placement by a non-relative (a birth parent or parents select the adoptive parents without going through an agency). MCA 42-4-101, et seq. Note, however, that it is illegal in Montana for a lawyer, doctor, or other person to act as an intermediary for adoptive parents and/or birth parents unless the person is licensed as a child placing agency;
- placement by a licensed adoption agency, including the Department of Public Health and Human Services (DPHHS), MCA 42-1-103(4), 42-4-201 et seq., 42-3-301; or
- stepparent or relative adoption, MCA 42-4-310 et seq.
For adults: An adult may adopt another adult if they, and the spouses, if any, consent. MCA 42-4-403.