June 25, 2012 § 3 Comments

I posted An Adoption Puzzler last week that set out an interesting scenario. If you haven’t read it yet, take a minute to check it out.

The comments to the post are spot on, and I will mention them in a moment, but to get right to the heart of it, what the lawyer proposed simply will not fly because of MCA 93-17-13, which states, in part: ” … all parental rights of the natural parent, or parents, shall be terminated, except the spouse of the adopting parent.” In this case, then, the statute mandates that all parental rights of both the natural father and mother must be terminated, since the mother is not the spouse of the adopting parent.

There are lots of other implications raised by this proposal that bear discussion. Some of them:

  • Is it really in the child’s best interest? Yes, he will have insurance coverage, and possibly SS survivor benefits, but his grandfather will now be his father, his father in essence will be his brother, and if the mother’s rights are terminated, she will be a complete non-entity in his life. Is the grandfather fit at his age to raise this child to adulthood?
  • Does the mother understand that if her parental rights are terminated that she has no further recourse? Look at MCA 93-17-17, which says basically that only jurisdictional defects and failure to comply with the statutory procedures are grounds to set aside an adoption. A quite possible outcome later would be that, after the father gets out of prison he can re-adopt the child from the grandfather, doubly cutting the mother out of the child’s life.
  • Why are they attempting to accomplish by an adoption what could probably be achieved as effectively by guardianship or custody? Caveat: If you’re going to go the guardianship or custody route the mother needs to be advised of the deleterious effect either action would have on her natural parent presumption, which she would lose.
  • Is it ethical to promote such a drastic change in a child’s life and legal relationship to his parents merely to gain insurance coverage and possible SS benefits? Have you inquired what the arrangements will be in the future for the care of the child? If the mother’s rights are terminated, is she nonetheless going to continue to act as a parent? If so, aren’t you perpetrating a fraud on the insurance carrier and the SSA? If she is not going to continue, how suitable is a 72-year-old man to see to the needs of a toddler, and then a child, teenager and young man, over the span of the next 15 or so years.

David Linder’s comment hit the target by citing the code section, but the other comments all sounded the same alarms that I heard ringing in my head when I heard the proposal. When you’re confronted with questioning clients on a matter such as this you have to be ready to parse it thoroughly, filtering it through your knowledge of the statute law and cases, ethics, your experience, and — yes — your gut instinct.

Kudos to all of the commenters.

[Credit to Chancellor Debbra Halford for the reference to MCA 93-17-13]


  • […] I posted in 2012 about a similar adoption conundrum. You can read about it here. […]

  • Suzy Q says:

    Here is a twist. In re Adoption of D.C.S., Jr., 44 So. 3d 1006 (Miss. Ct. App. 2009).

    The grandfather is allowed to adopt the child as he is on his deathbed. The chancellor decides that it is best for the child to have the grandfather’s money (and a dead father) than a real father (who is living) with no money.

    is it really ever in the child’s best interest to have a dead father and a little money? I wonder whether the child ever was told that his grandfather was his dad? I would expect that everything continued on as the same, and the court may have sanctioned a fraud on a third party.

    I’m not sure justice prevailed. But somebody now has money. Let’s just hope former dad continued in a relationship and taught the child things a father should.

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You are currently reading ANSWER TO THE ADOPTION PUZZLER at The Better Chancery Practice Blog.


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