Montana Step-Parent Adoptions

In most states, a step-parent adoption is an easier process than other adoptions, and Montana is no exception. For good reasons, the process is streamlined when a person already acting as a parent is looking to adopt a child. In Montana, if the court is satisfied that the adoption is in the best interests of the child, it can waive the preplacement evaluation and the six-month postplacement evaluation requirements.

After the adoption, the relationship of parent and child and all the rights, duties, and other legal consequences of the relationship exists between the adoptee and the adoptive parent. The former parents are relieved of all parental responsibilities and have no rights over the adoptee except for a former parent’s duty to pay arrearages for child support.

The adoption also has an immediate impact on probate law and the rules for intestate succession. This governs what happens to a person’s property if they die without a will. Although many people believe that the government will get their property and finances if they die without a will, that’s not the case. Instead, there are rules in the law for who the property goes to if you die without a will. For a parent who dies leaving children, his property goes to his children in equal shares. And an adopted child receives the same as any other child. In other adoptions, the adoptee child does not inherit from his former parent (if that parent does without a will), but in the case of a step-parent adoption that’s not the case. There are a number of small differences in this type of adoption, and it’s important that you’re aware of them all before pursuing this course.

If you decide to pursue a step-parent adoption, the first step is to file a petition with the District Court in the county where the child and step-parent live. This asks the court to create a parent-child relationship between the child and the step-parent. The process involves substituting one parent for another. In some cases, the other parent has died or completely disappeared and this isn’t an issue. In other situation, the parent is around but not very involved. Despite an apparent lack of interest, the original parent may still raise a ruckus when asked to give up his rights. Making the original parent aware of the step-parent adoption, and giving him an opportunity to participate in it is absolutely vital to a successful action. You can’t force the original parent to participate, but if you don’t give him a real option you’ll have problems later.

Montana Step-Parent Adoptions require a number of different legal documents: Petition for Stepparent Adoption; Agreement to Accept Temporary Custody; Waiver of Parental Rights; Consent to Stepparent Adoption; Child’s Consent to Stepparent Adoption (if the child is 12 or older). And then there are two orders from the Court: 1) an Order Setting Hearing; and 2) an Affidavit of Inability to Pay.

Step-Child Adoption in Montana

According to the U.S. Census Bureau, step-parent/step-child adoption is the most common type of adoption in the United States.   Step-child adoption procedures can vary greatly from state to state, but Montana law allows a person to adopt their step-child if:

(1) The person is married to one of the legal parents of the child;

(2) The child has lived with the person and his/her spouse during the past 60 days;

(3) If the child is over the age of 12, the child states in writing that he or she would like to be adopted; and

(4) The other parent of the child agrees in writing to give up his or her parenting rights, or that parent’s rights have been terminated.

Depending on your circumstances, there may be additional considerations.  For example, if your spouse’s child has been living with you for at least 12 months and your spouse dies or becomes mentally incompetent, you may also be able to adopt your step-child.

As long as the child’s other parent is agreeable and willing to sign a consent to your adoption and relinquishment, the step-child adoption process can be straightforward and fairly quick.  If the other parent is not agreeable, step-parent adoptions can become incredibly complicated and can require termination of the other parent’s rights before the adoption can be completed.

Paternity in Montana

Montana law presumes that a child born during the marriage is the biological child of the husband. Sometimes this is not the case, but as a general rule it works fairly well. If you believe someone else is the father, you can establish paternity by a court or administrative judgment, decree, or order.

Likewise, if the parents of a child are not married, and one of the parents questions or denies paternity – you will need to bring an action to establish paternity. Establishing paternity can be very important for child support and (when questioned or challenged) an important fact to establish. And, aside from child support reasons, simply knowing the true biological father of a child can bring certainty and security that is worth the effort.

If you are unsure of a child’s father, or interested in pursuing an action for paternity, please call me today to schedule an appointment.

Libby MT Divorce Lawyer

One Aspect of my practice that surprises my clients is that I often represent clients in Libby, MT and the rest of Lincoln County.  Understandably, being over an hour away, it may seem like this would be a major inconvenience.  However, the nature of Montana divorces and family law cases means that most of them settle without ever setting foot inside a court room.  That, combined with the advantages and flexibility of technology like email, phone conferencing, and computer scanners allows me to work with out of town clients as easily and productively as those located more locally.

The end result is that many of my Libby clients see little or no extra charge.  Of course, each case is unique and, as I’ve discussed before, I make no guarantees or predictions about final costs.  That being said, many of my clients are from Libby and have decided that hiring me was their best option.

Whether you are from Libby or anywhere else in Montana, if you are facing divorce or any other family law issues, please consider calling myself or another attorney in order to discuss your case.

100% Free Legal Advice!!! A warning…

In the age of the internet, information and answers seem to be one click away. But if you are a legal consumer attempting to get their questions answered – BEWARE! Sites are popping up all over the internet that promise free legal advice, 3 Step Divorces, and an answer to every legal question you have ever had. While I encourage individuals to consider all of their options, it is impossible for any lawyer to answer specific legal questions without more information than you can provide on those sites. You will truly get what you pay for.

There is a reason that most lawyers, including many of those in Kalispell, Whitefish, Columbia Falls, Bigfork, Libby, and Polson charge for an initial consultation. In order to answer your specific questions, they must first gather a great deal information regarding your finances, family and children and incorporate it into their analysis. You will usually find that a good consultation takes time, because the lawyer must get all of their questions answered before they can answer yours.

This advice also applies to those individuals that call up a lawyer for a quick piece of information. Remember that you cannot get adequate advice if you do not give adequate background information. It is worth your time and money to make sure you go into a divorce, or any other legal matter, with all the facts.

Groundbreaking Decision by The Montana Supreme Court

Michelle Kulstad and Barbara Maniaci adopted two children during their 10 year committed relationship. Because Montana adoption law does not allow a homosexual couple to adopt a child, Ms. Maniaci legally adopted the children as a single person, but the couple jointly raised the children during their relationship. In 2006, the couple decided to separate and in January 2007, Ms. Kulstad filed a lawsuit to ensure she would be able to continue parenting her children and to receive her share of the property the couple accumulated during the time they were together.

A two day trial took place in May 2008 and a court-appointed expert testified strongly in Ms. Kulstad’s favor, indicating the children had formed a strong bond with Ms. Kulstad and that denying her time with them would be detrimental. The trial court found that Ms. Kulstad had a parent-child relationship and that it was in their best interest to maintain that relationship. Thus, the court granted Ms. Kulstad visitation rights to the children.

Ms. Maniaci appealed the decision to the Montana Supreme Court and oral arguments were heard on behalf of both Ms. Maniaci and Ms. Kulstad. The Montana Supreme Court upheld the decision of the trial court 6 – 1 and upheld the Montana law that recognizes parent-child relationships that arise outside of biology and adoption when certain criteria are met.

Though this case happened to involve a lesbian couple, such a decision could affect many heterosexual couples in Montana. For example, a person who has acted as a parent to a girlfriend/boyfriend’s child may have continuing rights to act as a parent to the child even after the relationship has ended.