Montana

Overview

Original Birth Certificates. Montana is a Compromised State. The state has a complex tiered system that may release an original birth certificate, dependent upon the adopted person’s date of adoption. While the original birth certificate may be available more easily to people who were adopted 30 or more years ago, court orders may be required for younger adopted people and in all cases where a birth parent requests that a court order be required.

How It Works. The tiered Montana system is based on a person’s date of adoption. It applies unevenly depending on these dates:

• Those adopted 30 or more years ago: The original birth certificate is available upon written request, unless a birthparent has requested that a court order be required to release it;
• Those adopted less than 30 years ago but but before October 1, 1997: The original birth certificate is available only by court order;
• Those adopted on or after October 1, 1997: The original birth certificate is available upon written request if the adopted person is at least 18 years of age. A birthparent may, however, file a disclosure veto prohibiting the release. In such cases, only a court order can operate to release the record.

Court Records. Court records in an adoption proceeding are considered confidential may be released only by court order. In general, good cause is required to obtain copies of the court’s adoption records.

Identifying Information. Adoption agencies may not release confidential identifying information in an adoption unless mutual consent to release the information is in place. A confidential intermediary process is available in Montana to facilitate obtaining consent to release confidential information.

Descendant Rights. Descendants or “extended family” of both the adopted person and a birthparent may seek a court order to release information or participate in Montana’s confidential intermediary program. An extended family member has no greater rights than that of the adopted person and release of information is limited by consent of the parties, unless a court orders otherwise.

Confidential Intermediaries. Montana maintains a confidential intermediary system, which may be used to secure the release of identifying information. It requires an adult adopted person to file a petition for disclosure in the court where the adoption occurred. The court-appointed intermediary is authorized to search for a birth relative and to review confidential records and information. Consent is required prior to release of any identifying information to the adopted person. A court has the discretion to release identifying information about a person who is deceased.

Adult Adoption. Montana law provides for adult adoptions and adoptions of emancipated minors. The consent of the prospective adopted person and the person adopting is required, in addition to the spouse of the adopting person unless the spouse is legally separated from the adopting person or if it is not in the best interest of the adoptee to secure the spouse’s consent.

Montana Law: Court Records

Relevant parts of Montana adoption law related to court records. The entire Montana adoption statute is available here.

42-6-101. Confidentiality of records and proceedings.
(1) Unless the court orders otherwise, all hearings held in proceedings under this title are confidential and must be held in closed court without admittance of any person other than interested parties and their counsel.

(2) All papers and records pertaining to the adoption must be kept as a permanent record of the court and must be withheld from inspection. A person may not have access to the records, except:

(a) for good cause shown on order of the judge of the court in which the decree of adoption was entered;
(b) as provided in this part;
(c) as provided in 50-15-121 and 50-15-122; or
(d) the department’s child support enforcement division providing services under 42 U.S.C. 651, et seq.

(3) All files and records pertaining to adoption proceedings retained by the department, a licensed child-placing agency, a lawyer, or any authorized agency are confidential and must be withheld from inspection, except as provided in 50-15-121, 50-15-122, and this part.

Montana Law: Identifying Information

Relevant parts of Montana adoption law related to release of identifying and non-identifying information. The entire Montana adoption statute is available here.

42-6-102. Disclosure of records — nonidentifying and identifying information — consensual release
(1) The department or an authorized person or agency may disclose:

(a) nonidentifying information to an adoptee, an adoptive or birth parent, or an extended family member of an adoptee or birth parent;

(b) identifying information to a court-appointed confidential intermediary upon order of the court or as provided in 50-15-121 and 50-15-122;

(c) identifying information limited to the specific information required to assist an adoptee to become enrolled in or a member of an Indian tribe;

(d) identifying information to authorized personnel during a federal child and family services review; and

(e) an original birth certificate as provided for in 42-6-109.

(2) Information may be disclosed to any person who consents in writing to the release of confidential information to other interested persons who have also consented. Identifying information pertaining to an adoption involving an adoptee who is still a child may not be disclosed based upon a consensual exchange of information unless the adoptee’s adoptive parent consents in writing.

42-6-103. Petition for appointment of confidential intermediary
(1) An adult adoptee, an adoptive or birth parent, or an adult extended family member of the adoptee or birth parent may petition the court for disclosure of identifying information regarding the adoptee, a birth child, a birth parent, or an extended family member.

(2) A petition for disclosure must contain:

(a) as much of the following information as is known by the petitioner:

(i) the name, address, and identification of the petitioner;
(ii) the date of the adoptee’s birth;
(iii) the county and state where the adoption occurred;
(iv) the date of the adoption; and
(v) any other information known to the petitioner concerning the birth parents, the adoptive parent, and the adoptee that could assist in locating the person being sought;

(b) written documentation from a certified confidential intermediary agreeing to conduct the search; and

(c) if the petitioner is not the adoptee or birth parent, the reason the petitioner is requesting the appointment of a confidential intermediary.

42-6-104. Appointment of confidential intermediary— duties— payment
(1) After a petition for disclosure has been filed under 42-6-103, the court shall appoint a confidential intermediary who shall:

(a) conduct a confidential search for the person sought as requested in the petition for disclosure;
(b) refrain from disclosing directly or indirectly any identifying information to the petitioner, unless ordered to do so by the court; and
(c) make a written report of the results of the search to the court not later than 6 months after appointment.

(2) Upon appointment, a confidential intermediary is entitled to be paid a reasonable fee plus actual expenses incurred in conducting the search. The fee and expenses must be paid by the petitioner.

(3) A confidential intermediary may inspect otherwise confidential records of the court, the department, or an authorized agency for use in the search. The confidential intermediary may not disclose identifying information from the records or any results of a search unless authorized by the court or unless the parties have executed written consent to the confidential intermediary. Nonidentifying information from any source may be disclosed without further order from the court.

(4) If a confidential intermediary locates the person being sought, a confidential inquiry must be made as to whether the located person consents to having that person’s present identity disclosed to the petitioner. The court may request that the confidential intermediary assist in arranging contact between the petitioner and the located person.

(5) If a confidential intermediary locates the person being sought and the located person does not consent to having that person’s identity disclosed, identifying information regarding that person may be disclosed only upon order of the court for good cause shown.

(6) If the person being sought is found to be deceased, the court may order disclosure of identifying information regarding the deceased to the petitioner.

42-6-105. Disclosure authorized in course of employment
This title does not preclude an employee or agent of a court, department, or agency from:

(1) inspecting permanent, confidential, or sealed records for the purpose of discharging any obligation under this title;

(2) disclosing the name of the court in which a proceeding for adoption occurred or the name of an agency that placed an adoptee to an individual described in 42-6-103(1) who can verify the individual’s identity; or

(3) disclosing nonidentifying information contained in confidential or sealed records in accordance with any other applicable state or federal law.

§ 42-6-109. Release of original birth certificate— certificate of adoption
(1) In addition to any copy of an adoptee’s original birth certificate authorized for release by a court order issued pursuant to 50-15-121 or 50-15-122, the department shall furnish a copy of the original birth certificate of an adoptee:

(a) upon the written request of a person who was adopted before October 1, 1985, or 30 years or more ago, whichever date is later;

(b) upon a court order for a person adopted on or after October 1, 1985, and before October 1, 1997; and

(c) for a person adopted on or after October 1, 1997, upon:

(i) the written request of an adoptee who has attained 18 years of age unless the birth parent has requested in writing that the original birth certificate not be automatically released; or
(ii) a court order.

(2) Upon the request of an adoptive parent or an adoptee who has attained 18 years of age, the department shall issue a certificate of adoption that states the date and place of adoption, the date of birth of the adoptee, the name of each adoptive parent, and the name of the adoptee as provided in the decree.

(3) A birth parent may request in writing to the vital statistics bureau that the birth certificate for an adoptee not be released without a court order. The birth parent may change the request at any time by notifying the vital statistics bureau in writing of the change.

(4) The department may release a copy of the adoptee’s original birth certificate if release of this document is required to assist an adoptee to become enrolled in or a member of an Indian tribe.

42-4-116. Records
All records filed with the court in a direct parental placement adoption must be permanently maintained by the court.

Montana Law: Adult Adoption

Relevant excerpts from Montana’s adoption law related to adult adoption. The entire Montana adoption statute is available here.

42-4-401. Adoption of adult
A person who has attained the age of legal majority may be adopted without the consent of the person’s parents.

42-4-402. Who may adopt adult or emancipated minor
(1) An adult may adopt another adult or an emancipated minor pursuant to this section. However, an adult may not adopt the adult’s spouse. An adoption of an incompetent individual of any age must comply with all requirements set by law for the adoption of a child.

(2) An individual who has adopted an adult or emancipated minor may not adopt another adult or emancipated minor within 1 year after the adoption unless the prospective adoptee is a sibling of the adoptee.

42-4-403. Consent to adoption
(1) Consent to the adoption of an adult or emancipated minor is required only of:

(a) the adoptee;
(b) the prospective adoptive parent; and
(c) the spouse of the prospective adoptive parent unless:

(i) the spouse and the prospective adoptive parent are legally separated; or
(ii) the court finds that the spouse is not capable of giving consent or is withholding consent contrary to the best interests of the adoptee and the prospective adoptive parent.

(2) The consent of the adoptee and the prospective adoptive parent must:

(a) be in writing and be signed in the presence of the court or an individual authorized to take acknowledgments;

(b) state that the parties agree to assume toward each other the legal relationship of parent and child and to have all of the rights and be subject to all of the duties of that relationship; and

(c) state that the parties understand the consequences that the adoption may have for any right of inheritance, property, or support.

(3) The consent of the spouse of the prospective adoptive parent:

(a) must be in writing and be signed in the presence of the court or an individual authorized to take acknowledgments;

(b) must state that the spouse:

(i) consents to the proposed adoption; and
(ii) understands the consequences that the adoption may have for any right of inheritance, property, or support that the spouse has; and

(c) may contain a waiver of notice of any proceeding for adoption.

42-4-404. Jurisdiction and venue
(1) The court has jurisdiction over a proceeding for the adoption of an adult or emancipated minor if the petitioner has lived in Montana for at least 90 days immediately preceding the filing of a petition for adoption.

(2) A petition for adoption must be filed in the court in the county in which a petitioner lives.

42-4-405. Procedure
Except as otherwise provided in this part, the procedure and law for adoption of a child set forth in this title is applicable in proceedings for the adoption of an adult. The provisions concerning the adoptive decision support services requirement, preplacement evaluation, postplacement supervision period, and postplacement evaluation are not applicable to the adoption of an adult.

Relevant Montana Law: Adoption Generally

Relevant parts of Montana’s overall adoption law. The entire Montana adoption statute is available here.

42-1-103. Definitions
As used in this title, unless the context requires otherwise, the following definitions apply:

(1) “Adoptee” means an adopted person or a person who is the subject of adoption proceedings that are intended to result in the adoptee becoming the legal child of another person.

(2) “Adoption” means the act of creating the legal relationship between parent and child when it does not exist genetically.

(3) “Adoptive parent” means an adult who has become the mother or father of a child through the legal process of adoption.

(4) “Agency” means a child placement agency licensed by the state of Montana pursuant to Title 52, chapter 8, that is expressly empowered to place children preliminary to a possible adoption.

(5) “Birth parent” means the woman who gave birth to the child or the father of genetic origin of the child.

(6) “Child” means any person under 18 years of age.

(7) “Confidential intermediary” means a person certified by the department and under contract with or employed by a nonprofit entity with expertise in adoption.

(8) “Court” means a court of record in a competent jurisdiction and in Montana means a district court or a tribal court.

(9) “Department” means the department of public health and human services, provided for in 2-15-2201.

(10) “Direct parental placement adoption” means an adoption in which the parent of the child places the child with a prospective adoptive parent personally known and selected by the parent independent of an agency.

(11) “Extended family member” means a person who is or was the adoptee’s parent, grandparent, aunt or uncle, brother or sister, or child.

(12) “Identifying information” means information that directly reveals or indirectly indicates the identity of a person and includes the person’s name or address.

(13) “Nonidentifying information” means information that does not directly reveal or indirectly indicate the identity of a person, including:

(a) medical information and information related to general physical characteristics
(b) family information, including marital status and the existence of siblings;
(c) religious affiliation;
(d) educational background information that does not reveal specific programs or institutions attended;
(e) general occupation;
(f) hobbies; and
(g) photographs provided by any of the parties involved that were specifically intended to be provided to another party.

(14) “Parent” means the birth or adoptive mother or the birth, adoptive, or legal father whose parental rights have not been terminated.

(15) “Placing parent” means a parent who is voluntarily making a child available for adoption.

(16) ”Preplacement evaluation” means the home study process conducted by the department or a licensed child-placing agency that:

(a) assists a prospective adoptive parent or family to assess its own readiness to adopt; and
(b) assesses whether the prospective adoptive parent or family and home meet applicable standards.

(17) “Records” means all documents, exhibits, and data pertaining to an adoption.

(18) “Relinquishment” means the informed and voluntary release in writing of all parental rights with respect to a child by a parent to an agency or individual.

42-1-105. Who may be adopted
(1) A child is legally free for adoption if:

(a) the child does not have a living parent;
(b) the parental rights of the living parents of the child have been terminated according to the laws of this state or of another jurisdiction; or
(c) the living parents, guardian authorized by the court, or department or agency with custody of the child consent to the adoption.

(2) An adult may be adopted as provided in 42-4-401 through 42-4-405.

(3) A stepchild may be adopted as provided in 42-4-301 through 42-4-304 and 42-4-309 through 42-4-312.

42-1-106. Who may adopt
The following individuals who otherwise meet the requirements of this title are eligible to adopt a child:

(1) a husband and wife jointly or either the husband or wife if the other spouse is a parent of the child;

(2) an unmarried individual who is at least 18 years of age; or

(3) a married individual at least 18 years of age who is legally separated from the other spouse or whose spouse has judicially been declared incompetent.

42-1-108. Rights and responsibilities of parties in adoption proceedings
(1) The legislature finds that the rights and interests of all parties affected by an adoption proceeding must be considered and balanced in determining the necessary constitutional protection and appropriate processes.

(2) The legislature finds that:

(a) every child deserves to be raised by a family in which support and care are promptly provided by one or more parents in a nurturing environment on a regular and ongoing basis;

(b) the state has a compelling interest in providing stable and permanent homes for adoptive children in a prompt manner, in preventing the disruption of adoptive placements, and in holding parents accountable for meeting the needs of children;

(c) an unmarried mother, faced with the responsibility of making crucial decisions about the future of a newborn child, is entitled to privacy, has the right to make timely and appropriate decisions regarding the mother’s future and the future of the child, and is entitled to assurance regarding the permanence of an adoptive placement;

(d) adoptive children have a right to permanence and stability in adoptive placements;

(e) adoptive parents have a constitutionally protected liberty and privacy interest in retaining custody of an adopted child; and

(f) a birth father who is not married to the child’s mother has the primary responsibility to protect the father’s rights. The father’s inchoate interest in the child requires constitutional protection only when the father has demonstrated a timely commitment to the responsibilities of parenthood, both during pregnancy and upon the child’s birth. The state has a compelling interest in requiring a birth father to demonstrate that commitment by:

(i) timely and consistently providing financial support;
(ii) complying with the requirements of the putative father registry; and
(iii) demonstrating the establishment of a substantial relationship with the child as described in 42-2-610.

(3) If a birth father who is not married to the child’s mother fails to grasp the opportunities that are available to the father to establish a relationship with the child, the father’s parental rights will be lost entirely by the failure to timely exercise it or by the failure to comply with the available legal steps to substantiate the parental interest.

42-1-109. Need for finality — balancing of interests
Finality is necessary in order to facilitate the state’s compelling interest. The legislature finds that the interests of the child outweigh the interests of the state, the mother, the adoptive parents, and a birth father who is not married to the child’s mother.

42-1-110. Presumed knowledge that child may be adopted without notice
A birth father who is not married to the mother of the child is presumed to know that the child may be adopted without the father’s consent and that the father is required to comply with the provisions of this title and manifest a commitment to the father’s parental responsibilities.

42-1-111. Unmarried birth mother’s right of privacy
An unmarried birth mother has a right of privacy with regard to the mother’s pregnancy and adoption plan. Birth mothers are encouraged to provide all known information about the birth father of any child for whom an adoption is planned.

42-2-301. Consent required
An adoption of a child may be decreed when written consents to adoption have been executed by:

(1) the birth mother;

(2) the husband of the birth mother if the husband is the presumed father of the child under 40-6-105;

(3) any other person whose parental rights have been established by a court;

(4) the department or an agency that has custody of the child and the authority to place the child for adoption;

(5) the legal guardian of the child if both parents are dead or their rights have been judicially terminated and the guardian has authority by order of the court appointing the guardian to consent to the adoption;

(6) the child, either in writing or in court, if the child is 12 years of age or older unless the child does not have the mental capacity to consent.

42-2-302. Persons whose consent not required
Consent to adoption of a child is not required from:

(1) an individual whose parental relationship to the child has been judicially terminated for unfitness or has been determined not to exist or who has waived parental rights;

(2) a parent who has been judicially declared incompetent;

(3) an individual who has not been married to the mother of the child and who, after the conception of the child, executes a notarized statement denying paternity or a notarized statement acknowledging paternity and denying any interest in the child; or

(4) the personal representative of a deceased parent’s estate.

42-2-303. Form of consent
The consents required by 42-2-301 must be acknowledged before an officer authorized to take acknowledgments or witnessed by a representative of the department, an agency, or the court.

42-3-101. Duty to disclose information — form — availability — filing
(1) Except for an adoption proceeding by a stepparent, in any adoption under this title, a birth parent, the department, or an agency shall provide a prospective adoptive parent with social and medical histories of the birth families, including tribal affiliation, if applicable.

(2) In a direct parental placement adoption, the birth family social and medical histories must be completed on a form provided by the department and filed with the court when the adoption petition is filed.

(3) The department shall make a form available to agencies and court administrators for public distribution.

42-3-102. Retention of disclosures
(1) In a direct parental placement adoption, the disclosures required by 42-3-101 must be filed with the court in support of the notice of parental placement filed pursuant to 42-4-103 and must be permanently maintained.

(2) In an adoption arranged by the department or an agency, the disclosures required by 42-3-101 must be permanently maintained in the files of the department or the agency.

42-4-103. Direct parental placement — information to be filed
(1) A parent who proposes to place a child for adoption with a prospective adoptive parent who resides in Montana and who is not the child’s stepparent or an extended family member shall file with the court of the county in which the prospective adoptive parent or the parent making the placement resides the following:

(a) a notice of parental placement containing the following information:

(i) the name and address of the placing parent;
(ii) the name and address of each prospective adoptive parent;
(iii) the name and address or expected date and place of birth of the child;
(iv) the identity and information on the location of any other legal parent or guardian of the child and any other person required to receive notice under 42-2-605, including any current spouse, any spouse who is the other birth parent and to whom the parent was married at the probable time of conception or birth of the child, and any adoptive parent;
(v) all relevant information pertaining to any Indian heritage of the child that would bring the child within the jurisdiction of the Indian Child Welfare Act, 25 U.S.C. 1901, et seq.; and
(vi) the name and address of counsel, a guardian ad litem, or other representative, if any, of each of the parties mentioned in subsections (1)(a)(i) through (1)(a)(iii);

(b) a relinquishment and consent to adoption of the child by the adoptive parent;

(c) the adoptive decision support services report required by 42-2-409;

(d) the medical and social history disclosures required by 42-3-101;

(e) a report of disbursements identifying all payments made to or to the benefit of the placing parent by the prospective adoptive parent or anyone acting on the parent’s behalf that contains a statement by each person furnishing information in the report attesting to the truthfulness of the information furnished by that person;

(f) a certified copy of the child’s birth certificate or other document certifying the place and date of the child’s birth;

(g) a certified copy of any existing court orders pertaining to custody or visitation of the child; and

(h) the preplacement evaluation.

(2) The notice of parental placement must be signed by the parent making the placement.

42-4-203. Duties of placing parent [Department or Agency Placement]
(1) A parent who is placing a child for adoption shall comply with the provisions for executing a voluntary relinquishment and consent to adopt.

(2) A parent placing a child for adoption shall identify and provide information on the location of:

(a) any other legal parent or guardian of the child and any other person required to receive notice under 42-2-605, including any current spouse; and

(b) any spouse who is the other birth parent and to whom the parent was married at the probable time of conception or birth of the child.

(3) A parent placing a child for adoption shall identify and provide information pertaining to any Indian heritage of the child that would bring the child within the jurisdiction of the Indian Child Welfare Act, 25 U.S.C. 1901, et seq.

(4) A parent placing a child for adoption shall provide:

(a) the disclosures of medical and social history;

(b) a certified copy of the child’s birth certificate or other document certifying the place and date of the child’s birth; and

(c) a certified copy of any existing court orders pertaining to custody or visitation of the child.

42-4-210. Consent to adoption [Department or Agency Placement]
(1) Upon the filing of the petition for adoption by the prospective adoptive parent, the department or agency that has custody of the child shall file its consent to adoption.

(2) Except as provided in subsection (3), the withdrawal of a consent for an adoption filed by the department or an agency in connection with that petition for adoption is not permitted.

(3) Upon a motion to withdraw consent, notice and opportunity to be heard must be given to the petitioner and to the person seeking to withdraw consent. The court may, if it finds that the best interests of the child will be furthered, issue a written order permitting the withdrawal of the consent.

(4) The entry of a decree of adoption renders a consent irrevocable.

42-5-107. Best interests of child
(1) In determining whether to grant a petition to adopt, the court shall consider all relevant factors in determining the best interests of the child. The court shall consider factors relevant to the determination of a prospective adoptive parent’s parenting ability, the future security for a child, and familial stability.

(2) In a contested adoption proceeding involving a child, the court shall consider the factors set out in subsection (1) and shall also consider:

(a) the nature and length of any relationship already established between a child and any person seeking to adopt the child;

(b) the nature of any family relationship between the child and any person seeking to adopt the child and whether that person has established a positive emotional relationship with the child;

(c) the harm that could result to the child from a change in placement;

(d) whether any person seeking to adopt the child has adopted a sibling or half-sibling of the child;

(e) which, if any, of the persons seeking to adopt the child were selected by the placing parent or the department or agency whose consent to the adoption is required.

(3) In an Indian child placement, the court shall determine if the requirements of the Indian Child Welfare Act, 25 U.S.C. 1901, et seq., have been met.

42-5-109. Decree of adoption
A decree of adoption must state:

(1) the original name of the child;

(2) the name of the petitioner for adoption;

(3) whether the petitioner is married or unmarried;

(4) whether the petitioner is a stepparent of the child;

(5) the name by which the child is to be known;

(6) for a child born in Montana, a direction to the vital statistics bureau to issue a new birth certificate unless the adoptee is 12 years of age or older and requests that a new certificate not be issued;

(7) the child’s date and place of birth, if known;

(8) the effect of the decree of adoption as stated in 42-5-202;

(9) that the adoption is in the best interests of the child; and

(10) if known, whether either birth parent objects to the release of the original birth certificate information upon the adoptee reaching 18 years of age.

42-5-201. Communication of decree to department
(1) Within 30 days after a decree of adoption becomes final, the clerk of court shall send a report of the adoption to the department.

(2) If petitioners have requested it, the court shall order the vital statistics bureau to issue a new birth certificate to the child.

42-5-202. Effect of decree
(1) After the decree of adoption is entered:

(a) the relationship of parent and child and all the rights, duties, and other legal consequences of the relation of parent and child exist between the adoptee and the adoptive parent and the kindred of the adoptive parent;

(b) the former parents and the kindred of the former parents of the adoptee, unless they are the adoptive parents or the spouse of an adoptive parent, are relieved of all parental responsibilities for the adoptee and have no rights over the adoptee except for a former parent’s duty to pay arrearages for child support.

(2) A decree of adoption must include notice to the vital statistics bureau if it is known that either birth parent objects to release of the information on the original birth certificate upon the adoptee reaching 18 years of age.

(3) The relationship of parent and child for the purposes of intestate succession is governed by Title 72.

42-5-203. Finality of decree — expediency
(1) For purposes of appeal, the decree of adoption is a final order when it is issued.

(2) A person may appeal from the order in the manner and form provided for appeals from a judgment in civil actions.

(3) An appeal from a decree of adoption must be heard expeditiously pursuant to the provisions of 42-2-618.

42-5-204. Rights of adoptee
A decree of adoption does not affect any right or benefit vested in the adoptee before the decree became final.

42-5-205. Foreign adoption decrees
When the relationship of parent and child has been created by a decree of adoption of a court of any other state or country, the rights and obligations of the parties as to matters within the jurisdiction of this state must be determined pursuant to this title.