June 16, 2010 § 5 Comments

I have already made the case for incorporating the adoption jurisdiction statute into your pleading forms here

What I want to emphasize is that there is so much more to the jurisdictional statute than just a change from 90-day to six-month residency since its amendment in 2007 that you need to be aware of and address.

The statute is § 93-17-3, MCA.  Pull out the statute and read it.  This is important.

Subsection (1) sets out five different, basic scenarios for jurisdiction: (a) that the minor lived in Mississippi with a parent, guardian, prospective adoptive parent or other person acting as a parent for six months AND there is available in Mississippi “substantial evidence concerning the minor’s present or future care”; or (b) the prospective adoptive parent lived in the state for six months AND there is available in Mississippi “substantial evidence concerning the minor’s present or future care”; or (c) the agency that placed the child for adoption is licensed in Mississippi and it is in the child’s best interest to adopt because the minor’s parents or the minor and the adoptive parents have a significant connection with this state AND there is available in Mississippi “substantial evidence concerning the minor’s present or future care”; or (d) the minor and the prospective adoptive parent are physically present in Mississippi and the child has been abandoned or there is an emergency to protect the child from mistreatment or neglect; or (e) no other state would have jurisdiction under prerequisites as (a) through (d), or another state has declined jurisdiction, and it is in the best interest of the minor for Mississippi to take jurisdiction.

From the foregoing, it is clear that it is not sufficient to allege merely that the parties have been residents of Mississippi for six months.  All of the applicable elements must be pled in order to invoke jurisdiction.

Subsections (2) and (3) prohibit Mississippi from taking jurisdiction where there is any action for custody of the minor pending in another state.   

In order to avoid problems with Section (2) and (3), the best practice would be to add an affirmative provision to your pleading addressing the jurisdictional issues raised in them, and adding a complete UCCJEA pleading would be prudent.

Subsection (4) limits adoption to an unmarried adult or a married person whose spouse joins in the petition.  Your pleading should make it clear what is the marital status of your adoptive parent(s).

Other provisions of Subsection (4):  The petition must be sworn and ” … filed in the chancery court of the county in which the adopting petitioner or petitioners reside or in which the child to be adopted resides or was born, or was found when abandoned or deserted, or in which the home is located to which the child has been surrendered by a person authorized to so do.” 

In my opinion, the pleading must set out one of the residency bases for jurisdiction, and it must be one that applies to the facts in your case.

The old requirements for a physician’s or nurse practitioner’s certificate and statement of property still continue in effect.

Subsection (4) also includes a requirement that the petitioner(s) must make an affidavit disclosing the amount of fees charged by adoption agencies or facilitators ” … and any other expenses paid by the petitioner or petitioners in the adoption process as of the time of filing the petition.”

In my opinion, the disclosure of fees and expenses requires a combination of any or as many of the following that apply: (a) a statement itemizing all such fees; (b) a statement that no fees have been incurred; (c) an itemization of “any other expenses.”  I believe that the phrase “any other expenses” includes attorney’s fees.

Adoption is a purely statutory creature.  Since it is in derogation of common law, the statute must be strictly construed and applied.  If you do not properly invoke jurisdiction of the court in your pleadings, you are running the risk that at some later point someone will try to get the adoption decree set aside — most likely after a wrongful death suit has been filed — and you will be embarassed or worse. 

Read the statute and plead it.  The extra trouble will be worth it.

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