Switching Parents

March 18, 2015 § Leave a comment

A lawyer presented me with an interesting adoption query not too long ago. The natural parents are agreeable to the paternal grandmother adopting their child, but they want the father to retain his parental rights so that he can provide health insurance covering the child, and so that he can maintain a relationship and regain custody in the event that something happens to the grandmother. In essence, the parties propose substituting the grandmother for the mother. Can this be done?

The answer, in a word, is no.

That’s because MCA 93-17-13 precludes it. Here’s the pertinent language:

… and all parental rights of the natural parent, or parents, shall be terminated, except as to a natural parent who is the spouse of the adopting parent.

So the only situation in which the parental rights of a parent may survive adoption is where the spouse of a natural parent is adopting the child. In that case, the natural parent/spouse retains his or her parental rights.

The same result would obtain in a situation where the parties agree that a third party may adopt the child, but want to retain their parental rights for some reason. That is not permitted under the statute.

The essence of adoption is the severance of the legal relationship between the child and one or both parents, with a substitution of a new parental relationship. If the arrangement you propose to the court does not accomplish that within the parameters of 93-17-13, you need to think through some alternatives.

I posted in 2012 about a similar adoption conundrum. You can read about it here.

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