Montana Adoption Laws

By Susan Buckner, J.D. | Legally reviewed by FindLaw Staff | Last reviewed November 04, 2024

Montana state laws protect the rights of the birth parents, the prospective adoptive parents, and the adopted children. Montana's adoption proceedings are like those of other states. Both birth parents must consent to the adoption if they are available. All adoptive parents must consent. Montana allows single parents to adopt.

This article will examine all aspects of the adoption process in Montana. Explore FindLaw's Adoption section for additional articles and resources.

Types of Adoptions in Montana

Montana recognizes several types of adoptions. These adoptions have code sections and differing requirements for the adoptive family and the court.

Direct parental placement: For direct placement of a child, a parent (often the birth mother) can have their child adopted by someone they know. The person must live in Montana and have already received a preplacement evaluation. For direct placement, the parent must still undergo pre-adoption counseling and provide information about the other parent if necessary.

Agency adoption: Parents may place a child for adoption with a licensed adoption agency or the Department of Public Health and Human Services (DPHHS). Parents must provide all necessary information about the child. This includes the identity of the birth mother or birth father if they are not the ones surrendering the child.

Stepparent adoption: A stepparent may adopt the child of their spouse under certain conditions:

The other parent must voluntarily relinquish all parental rights
The stepparent must accept the written relinquishment
The spouse must have legal and physical custody of the child
The stepparent and the spouse must have been in legal custody of the child for the preceding 60 days

The court may also place the child with the stepparent if it is in the best interests of the child, or on a showing of good cause. This is determined case-by-case.

Adult and emancipated minor adoption: A person may adopt an adult or emancipated minor if the person consents. An adult may not adopt their spouse. Adoption of a special needs or incompetent individual of any age must follow the same requirements as for a child. In the state of Montana, children 12 years of age and up must consent to their adoption.

Montana Adoption Process

Before a birth parent or an agency can place a child, the prospective parents must have a pre-placement evaluation or home study by a licensed child-placing agency. A social worker performs the evaluation, which consists of:

A criminal background check looking for child abuse, neglect, or domestic violence
Medical background and current health of the adoptive parents
Social history of the adoptive parents, including understanding of adoption issues
Financial assessment
Parenting skills assessment

The social worker makes at least one home visit and interviews all family members in the home. The pre-placement evaluation is valid for one year. The family must have a new evaluation if there is any major change in the household.

Married couples, single adults, and separated couples may adopt once they have completed the evaluation or home study. Social services can waive the evaluation in direct placements with an extended family member.

Termination of Parental Rights

Birth parents cannot give consent to adoption and terminate their rights until 72 hours after the child's birth. The court can terminate rights if the parent is absent or unfit. The family court holds a hearing to terminate rights once everyone involved receives a notice of hearing. If the putative father is not present, notice goes to:

The person named on the birth certificate
Anyone providing the birth mother with child support
Anyone living with or married to the birth mother at the time of the child's birth

The order terminating parental rights:

Cancels the parent-child relationship except for any duty to provide child support
Ends the parents' rights to object to any adoption proceedings and notice of any future hearings
Awards custody to DHS, the adoptive parents, or the adoption services agency until the finalization of the adoption

Post-Placement Evaluation

The adoption is not finalized for six months after placement. At that time, the judge orders a final hearing and determines if adoption is in the child's best interests. The post-placement evaluation resembles the preplacement evaluation.

Native American Adoption

Montana governor Greg Gianforte signed legislation in 2023 giving Native American families preference in fostering and adopting Native children. Later that year, the U.S. Supreme Court upheld the Indian Child Welfare Act (ICWA), a federal law that requires that all federally recognized tribes receive notice when a Native child is:

Involuntarily placed in foster care
The subject of parental termination proceedings
Denied return to their natural child's parents or Indian guardian on demand

The ICWA corrects the policies and practices that separate Native children from their families and Tribes. It ensures that Native children are not removed from their families by state agencies without their families' and Tribes' knowledge and consent.