MAKING SURE YOUR ADOPTION FLIES

March 21, 2011 § Leave a comment

Momma, daddy, baby, grandma and grandpa, Aunt JoAnn and Uncle Billy are all assembled expectantly with their digital cameras and mylar baloon bouquets awaiting that happy moment when the judge signs the adoption papers.  Their party is deflated, though, when you glumly emerge from the judge’s office and report that there are still some papers you need to get straight before the judge will affix his signature.  Hopes dashed, disappointments piqued, and disgruntled clients. 

Adoptions are technical.  Not the sort of thing you slap together and slide through with little thought.

Here are some tips to make your adoptions succesful:

  • Plead proper residence jurisdiction.  MCA § 93-17-3 was amended almost four years ago to require six months’ residency, yet we still have lawyers pleading 90 days’ residency. Change your forms.
  • Plead venue.  § 93-17-3 sets out several scenarios for venue.  Select the one that fits your case and track the language of the statute. 
  • There is a UCCJEA-like requirement in § 93-17-3(2) and (3).  Be sure to plead what it requires about proceedings in other states. 
  • Remember that the petition must be accompanied by an affidavit of a doctor or nurse practitioner as to the child’s health, and an affidavit as to the child’s property or lack thereof.
  • § 93-17-3(4) also requires an affidavit of the petitioner(s) of all service fees charged by adoption agencies, as well as “all expenses paid … in the adoption process as of the time of filing the petition.”  I interpret this to include attorney’s fees. 
  • The petition must be sworn, per § 93-17-3(4).
  • § 93-17-5 sets out the requirements as to who must be joined, and how.  Note that § 93-17-5(2) requires that “The child shall join the petition by its next friend.”
  • Since MCA  § 93-13-13 gives any minor over the age of 14 the right to select his or her guardian, you should have the adoptive child execute a joinder, if over the age of 14. 

In this district we require a pre-adoption conference between the judge and the attorney.  The judge will review your petition and affidavits, as well as your proposed judgment, and, if everything is in order, set a date for the final adoption.  If some remedial work is needed, the judge will point out what needs to be done and send you on your way to get it done.  Do not invite your clients to be there on the off-chance that the judge might approve the paperwork.  That would defeat the purpose of the conference, and the judge has not necessarily built the extra time into his calendar to handle both the conference and the adoption.

Several other posts on adoption tips are here, here and here.

THE PRE-ADOPTION CONFERENCE

September 30, 2010 § 1 Comment

In the 12th District, we have long had a practice of requiring the attorney to appear personally to confer with the judge in a pre-adoption conference without the adoptive parent(s) in uncontested adoptions.

Some out-of-district lawyers question why we deem this necessary.

Imagine getting your client and spouse to take a day off of work, perhaps take the other children out of school, to travel to the courthouse for the long-anticipated day.  Spirits are high and festive.  A new member of the family is about to be welcomed in.  Or maybe not.

The judge calls you into chambers and points out that you have failed to obtain a statement from a physician, as required by the statute.  Or your pleading is inadequate under the new jurisdiction statute.

So your clients’ happy day turns to ashes and you are embarassed.

With a pre-adoption conference, you get the chance to learn what you need to do to get your case in shape so that your clients’ happy occasion can truly be happy.  When you file for an adoption that you know will be uncontested, call the court administrator and set up an appointment for a pre-adoption conference as soon as possible.  When the judge gives you the green light, you can set it for final presentation to the court. 

If you’re filing for adoption in another district, it would not hurt to ask the Chancellor for an appointment to look over your filing in advance of presenting it with your clients present.

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