Adoption and Joinder of the Spouse

July 31, 2018 § Leave a comment

Yesterday we visited the adoption case In re DDH: Gray and Dotch, focusing on the decision as it relates to termination of parental rights. There is another component to the decision that needs addressing: the requirement in MCA 93-17-3 that a married person seeking to adopt must be joined by his or her spouse.

In 99.9% of adoption cases, the spouses are joined in the case because they are both seeking to adopt the child. But what about where only one spouse is wanting the adoption? Does the other spouse still have to join?

In DDH, Gray, the adoptive father was married to a woman other than Dotch. Gray petitioned only in his name, presumably because it was only he seeking to adopt while keeping intact Dotch’s rights as the mother. Recall that Dotch had always acted in loco parentis toward the child because he and Dotch both believed for most of her life that he was the father. Even after they discovered that he was not, however, he continued his in loco parentis role.

In its opinion, the court addressed the question whether Gray’s wife should have joined in his petition:

¶13. The first section to consider is Section 93-17-3(4). Section 93-17-3(4) provides in pertinent part that “[a]ny person may be adopted in accordance with the provisions of this chapter in termtime or in vacation by an unmarried adult or by a married person whose spouse joins in the petition.” Miss. Code Ann. § 93-17-3(4) (emphasis added). The petitioners argue that Gray’s wife should not have to join the petition, and the statute “limits the rights of a married person to adopt without his/her spouse being joined as a party to the adoption.”

¶14. Section 93-17-3(4)sets out requirements for an adoption, detailing the jurisdiction and venue for adoption proceedings and detailing the petition’s requirements—such as the joinder of both spouses when married and a doctor’s or nurse practitioner’s certificate of the health of the child. Miss. Code Ann. § 93-17-3(4). The section also governs home studies for adoptions, changing the child’s name, and additional considerations for jurisdiction. Id.

¶15. Section 93-17-3 is unambiguous. The requirements are clear, and we see no reason why they should not be followed in the instant case. Simply put, Gray’s spouse must join him in his petition to adopt D.D.H. Miss. Code Ann. § 93-17-3(4). The plain language of Section 93-17-3(4) does not provide that the joinder of Gray’s spouse means that she will receive any custodial or parental rights [fn 2] or that she is adopting the child. It requires only that she join in Gray’s request.

[Fn 2] Gray’s wife would merely assume the role of step-parent.

¶16. In an adoption proceeding, the best interests of the child are paramount, and the Court reviews adoptions to ensure the chancellor considered the best interests of the child. In re Adoption of D.N.T., 843 So. 2d 690, 706 (Miss. 2003); In re Adoption of P.B.H., 787 So. 2d 1268, 1277 (Miss. 2001). The requirement to include the spouse on the adoption petition, even if the spouse is not the adopting party, enables the best interests of the child to be served. If the spouse is joined, the chancellor would then have the opportunity to consider and, if needed, question the spouse who regularly would be in the adopted child’s life as a step-parent. Further, requiring the spouse to join provides the spouse notice of the adoption petition—as the final decree could possibly affect the spouse’s rights and the inheritance rights of the spouse’s children. Therefore, Section 97-13-3(4)’s requirement to include Gray’s spouse in the adoption proceeding ensures that the best interests of D.D.H. are considered and should be followed in this case.

In Part II of its opinion (¶¶30-33), the court declined to rule on the statute’s constitutionality.

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