Consent to Adoption - Montana

Who Must Consent to an Adoption

Citation: Ann. Code § 42-2-301

Written consents to an adoption must be executed by the following:

• The birth mother
• The husband of the birth mother if the husband is the presumed father of the child
• Any other person whose parental rights have been established by a court
• The Department of Public Health and Human Services or an agency that has custody of the child and the authority to place the child for adoption
• The legal guardian of the child if both parents are dead or their rights have been judicially terminated and lf the guardian has authority by order of the court appointing the guardian to consent to the adoption

Consent of Child Being Adopted

Citation: Ann. Code § 42-2-301

A child who is age 12 or older must consent, either in writing or in court, unless he or she lacks the mental capacity to consent.

When Parental Consent is not Needed

Citation: Ann. Code § 42-2-302

Consent to adoption of a child is not required from the following:

• An individual whose parental relationship to the child has been judicially terminated for unfitness, has been determined not to exist, or has been waived
• A parent who has been judicially declared incompetent
• An individual who has not been married to the mother of the child and who, after the conception of the child, executes a notarized statement denying paternity or a notarized statement acknowledging paternity and denying any interest in the child
• The personal representative of a deceased parent's estate

When Consent Can Be Executed

Citation: Ann. Code § 42-2-408

A parent whose consent to the adoption of a child is required may execute a relinquishment and consent to adoption only after he following criteria have been met:

• The child has been born.
• No less than 72 hours have elapsed since the birth of the child.
• The parent has received adoptive decision support services in accordance with § 42-2-409.

A guardian may execute a relinquishment and consent to adopt at any time after being authorized by a court.

The department or a licensed child-placing agency may execute a consent for the adoption at any time before or during the hearing on the petition for adoption.

A child whose consent is required may execute consent at any time before or during the hearing on the petition to adopt.

How Consent Must Be Executed

Citation: Ann. Code §§ 42-2-303; 42-2-405; 42-2-408

The required consents must be acknowledged before an officer who is authorized to take acknowledgments or must be witnessed by a representative of the department, an agency, or the court.

A parent who is a minor has the right to relinquish all rights to the child and to consent to the child's adoption. The relinquishment is not subject to revocation by reason of minority. In a direct parental placement adoption, a relinquishment and consent to adopt executed by a parent who is a minor is not valid unless the minor parent has been advised by an attorney who does not represent the prospective adoptive parent.

In a direct parental placement adoption, a parent whose consent to the adoption of a child is required may execute a relinquishment and consent to adoption only after the parent:

• Has been informed that fees for any required counseling and legal fees are allowable expenses that may be paid by a prospective adoptive parent
• Has been represented by separate legal counsel if the parent is a minor
• Has been provided a copy of the preplacement evaluation pertaining to the prospective adoptive parent prior to the execution of the relinquishment

If the person from whom a relinquishment and consent to adopt are required is a member of the armed services or is in prison, the relinquishment may be executed and acknowledged before any person authorized by law to administer oaths.

Revocation of Consent

Citation: Ann. Code § 42-2-410

The parent who executed the relinquishment and consent to adopt and the department, agency, or prospective adoptive parent named or described in the relinquishment and consent to adopt may mutually agree to revocation of consent prior to the issuance of an order terminating parental rights.

A relinquishment may not be revoked if an order has been issued terminating parental rights.