ADOPTION DECREE DO’S AND DON’TS

October 11, 2011 § 1 Comment

Before you draft your adoption final decree, be sure to read MCA §§ 93-17-13 and 29. There are some critical provisions in those statutes that you need to address.

Here are the highlights of 93-17-13:

  • DO include in your judgment a six-month interlocutory period unless the child to be adopted is the stepchild of a petitioner or is related to a petitioner by blood within the third degree, unless the chancellor has determined that the interlocutory period is not necessary for the benefit of the court; if the judge does waive the interlocutory period, DO include language in your final judgment that the interlocutory period is waived and the reason why.   
  • If the chancellor shortens the interlocutory period by the length of time that the child has lived with the adoptive parent in their residence, DO include that explanation in your judgment.
  • DO include in your judgment that that the child shall (a) inherit from and through the adoptive parents and siblings as would a child of the full blood. The language of the statute is explicit, and you should track it verbatim.
  • DO specify in your judgment that the child, adoptive parent(s) and kin are all vested with all of the rights and responsibilities as if the child had been born to the adoptive parents as their natural child. Again, the language of the statute is explicit, and you would do well to copy it verbatim into your judgment.
  • DO adjudicate in the body of the decree that the name of the child is changed, if desired.

And here are the highlights of 93-17-29:

  • DON’T state the name of the natural parent or parents in the style of the case or where they can be spread on the minutes of the court.
  • DON’T state the name of the natural parent or parents in your final decree.
  • DON’T state the original name of the child or children in the style of the case. Use “the child named herein,” or “a minor child,” or words to that effect.
  • DON’T state the original name of the child or children in the decree unless the name of the child will be unchanged.   

Section 29 addresses confidentiality issues. Use your common sense. Any confidential information that you add to the style of your case will find its way into the docket entry and even into a publication notice. “Confidential information” in the sense of adoption embraces any information that will identify the child by original name, or that identifies either or both of the natural parents. I have seen publication notices that are blatant violations of this code section. Once that kind of improper publication is made, confidentiality for all intents and purposes is eliminated. If you have any doubts about how to style your case to avoid these problems, sit down with your chancellor and hash it out before you file your pleadings.

Some lawyers ask how to accomplish an adjudication of termination of parental rights without naming the terminated parent(s) in the final decree. Two methods come to mind: (1) enter a separate judgment specifically terminating the parental rights and reference that judgment in your final decree with language like “The parental rights of the natural parents were terminated by separate judgment in this action rendered March 16, 2011, which is incorporated herein by reference for all purposes;” or (2) in the final decree, simply state that the rights of the natural parents identified in the Complaint for Adoption are hereby terminated, etc.

I heard a report from another district that the State Board of Health is requiring that the name of the parent or parents whose rights are terminated must be included in the decree. If so, that agency is requiring by its directives a violation of the statute. Based on my training, background and experience, I take the position that the statutory law of Mississippi trumps agency directives every time.

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§ One Response to ADOPTION DECREE DO’S AND DON’TS

  • Anderson says:

    Based on my training, background and experience, I take the position that the statutory law of Mississippi trumps agency directives every time.

    So I keep thinking, but the agency I litigate against has a hard time reconciling itself to this notion. “Well, yes, that statute does say ‘X is not allowed,’ but look, we’ve written a regulation allowing X! Defer to us!”

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