Completing Intercountry Adoptions Not Finalized Abroad - Montana

Date: May 2019

Requirements for Completing the Adoption

Citation: Ann. Code §§ 42-2-104; 42-4-206; 42-5-101; 42-5-102; 42-5-105; 42-5-106

An adoption in this State of a child brought into the State from another country by a prospective adoptive parent or by a person who places the child for adoption in this State is governed by this title and is subject to any convention or treaty governing adoption that the United States has ratified and to any relevant Federal law.

After the child has been placed by the Department of Public Health and Human Services or agency with the prospective adoptive parent, the parent shall file a petition for adoption. The petition must specify the following:

  • The full names, ages, and places and duration of residence of the petitioners
  • The current marital status of petitioners and, if married, the place and date of the marriage
  • The circumstances under which the petitioners obtained physical custody of the child and the name of the individual or agency that placed the child
  • The date and place of birth of the child, if known
  • 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
  • That it is the desire of the petitioners that the relationship of parent and child be established between the petitioners and the child
  • A full description and statement of value of all property owned or possessed by the child
  • The facts, if any, that excuse consent on the part of a person whose consent is required for the adoption
  • That any applicable law governing interstate or intercountry placement was complied with
  • Whether a previous petition has been filed by the petitioners to adopt the child at issue or any other child in any court and the disposition of the petitions
  • The name and address, if known, of any person who is entitled to receive notice of the petition for adoption

No less than 6 months from the date the child has been placed with the prospective adoptive parent, the prospective adoptive parent may apply to the court for a decree of adoption.

The petitioners and the child shall appear at the hearing, unless the presence of the child is waived by the court. The court shall examine the petition, the documents accompanying the petition, and the petitioners and shall receive evidence in support of the petition.

The court shall issue a decree of adoption awarding custody of the child to the petitioners based on the evidence received, if it determines the following:

  • The child has been in the physical custody of the petitioners for at least 6 months.
  • Notice of the hearing on the petition for adoption was properly served or dispensed with.
  • Every necessary consent, relinquishment, waiver, disclaimer, or judicial order terminating parental rights has been obtained and filed with the court.
  • Any evaluation required by this title has been filed with and considered by the court.
  • The adoption is in the best interests of the child.

Required Evidence/Documentation

Citation: Ann. Code §§ 42-5-101; 42-3-213

The following documentation must be attached to or accompany the adoption petition:

  • Any written consent required by § 42-2-301
  • A certified copy of any court order terminating the rights of the child's parents
  • A certified copy of any existing court order in any pending proceeding concerning custody of or visitation with the child
  • The postplacement evaluation prepared pursuant to § 42-4-113 or 42-4-209
  • A disclosure of any disbursements made in connection with the adoption proceeding

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.

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.

Background Studies

Citation: Ann. Code §§ 42-3-201; 42-3-203; 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 must include a review of the following information about the prospective adoptive parent:

  • 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
  • An assessment of ability to provide adequate financial support for a child
  • An 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

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 and date of birth, nationality, racial or ethnic background, and any religious affiliation
  • Marital status and family history, including the age and location of any child of the individual and the identity of and relationship to anyone else living in the individual's household
  • Physical and mental health and any history of abuse of alcohol or drugs
  • Educational and employment history and any special skills
  • Property and income, including outstanding financial obligations as indicated in a current credit report or financial statement furnished by the individual
  • Any previous request for an evaluation or involvement in an adoptive placement and the outcome of the evaluation or placement
  • 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
  • Whether the individual has located a parent interested in placing a child with the individual for adoption and, if so, a brief description of the parent and the child
  • Any other fact or circumstance that may be relevant in determining whether the individual is suited to be an adoptive parent, including the quality of the environment in the individual's home and the functioning of other children in the individual's household

The report must contain recommendations regarding the suitability of the subject of the study to be an adoptive parent.

Placement Supervision and Reporting

Citation: Ann. Code §§ 42-4-205; 42-4-209

Once the department or agency has received custody of the child and placed the child for adoption, the department or agency shall supervise and evaluate the placement during a 6-month postplacement evaluation period.

The department or agency shall complete a written postplacement evaluation. The postplacement evaluation must be conducted according to the department's or agency's standards for placement of a child and at a minimum must include a personal interview with the prospective adoptive parent in that person's home and observation of the relationship between the child and the prospective adoptive parent.

Upon the filing of a petition for adoption by the prospective adoptive parent, the department or agency shall file the postplacement evaluation. 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 prospective adoptive parent
  • An assessment of adaptation by the prospective adoptive parent to parenting the child
  • A statement that the 6-month postplacement evaluation period has been complied with or should be waived
  • Any other circumstances and conditions that may have a bearing on the adoption and of which the court should have knowledge
  • A statement that any applicable provision of law governing an interstate or intercountry placement of the child has been complied with

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

Effect of Adoption Decree on Parental Rights

Citation: Ann. Code §§ 42-5-109; 42-5-202

A decree of adoption must state the following:

  • The original name of the child
  • The name of the petitioner for adoption
  • Whether the petitioner is married or unmarried
  • Whether the petitioner is a stepparent of the child
  • The name by which the child is to be known
  • The child's date and place of birth, if known
  • The effect of the decree of adoption, as stated in § 42-5-202
  • That the adoption is in the best interests of the child
  • If known, whether either birth parent objects to the release of the original birth certificate information upon the adoptee reaching age 18

After it has been entered, the decree of adoption has the following effect:

  • 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.
  • 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.

A decree of adoption must include notice to the Vital Statistics Bureau if it is known that either birth parent objects to release of the information on the original birth certificate upon the adoptee reaching age 18.

Obtaining a U.S. Birth Certificate

Citation: Ann. Code §§ 42-5-201; 50-15-223; 50-15-311

Within 30 days after a decree of adoption becomes final, the clerk of court shall send a report of the adoption to the department. If the petitioners have requested it, the court shall order the Vital Statistics Bureau to issue a new birth certificate to the child.

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 adopted person, if the person 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.

For each adoption decreed by a district court, the decree must require the clerk of the court to prepare a certificate of adoption on a form prescribed and furnished by the department. The certificate of adoption must include facts that are necessary to locate and identify the date and place of birth of the adopted person or, in the case of a person who was born in a foreign country, evidence from sources determined to be reliable by the district court as to the date and place of birth of the person. The certificate of adoption also must contain information necessary to establish a new certificate of birth for the person adopted and must identify the order of adoption. The clerk of the court shall certify the certificate of adoption.

Information necessary for the clerk of the court to prepare the certificate of adoption must be furnished, by each petitioner for adoption on a form prescribed by the department, at the time that the petition for adoption is filed. A person or agency having knowledge of facts may be required by the court to supply the court with information necessary to complete the certificate of adoption. The district court may make the provision of the information for the preparation of a certificate of adoption a prerequisite to the issuance of a final decree.

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 to the appropriate registration authority in Canada.