What You Need to Know About Second-Parent Adoption in Montana

Could your parental rights be denied even if you’re on your child’s birth certificate?

Recently in Oklahoma, a judge ruled that a mother does not have parental rights to her child, even though she is listed on the birth certificate. In that case, two married women were listed on the child’s birth certificate, and when they pursued a divorce, the Judge effectively voided the parental status of the non-gestational parent.

In Montana, the law provides that when a married woman gives birth, the man she is married to is presumed to be the child’s parent. It is unclear whether this law applies to couples of the same gender. Oklahoma has a similar law, but that didn’t stop the Judge from declaring that since “the law has not been updated to account for same-sex marriage” then “there is no presumption that the wife of the mother is a parent of the child.”


Second-Parent Adoption in Montana

Second-parent adoption is an opportunity for those who aren’t legally recognized as a child’s parent — and who aren’t married to their child’s legal parent — to protect their parental rights. In a second-parent adoption, the petitioner (or second parent) can be recognized as a legal parent without affecting the rights of the first parent.

In Montana, the law doesn’t allow unwed couples to adopt together, but it does allow second-parent adoption. However, it is only allowed if the legal parent consents and a good cause is presented.

Generally, in the U.S., only the legal parents of a child have parental rights. Even if both parents have contributed equally to raising their child, the second parent does not benefit from the same legal protections unless they legally adopt the minor. A second-parent adoption allows parents that aren’t married to protect their parental rights — whether they are same-sex or opposite sex. 

Even though many states don’t allow second-parent adoption, a legally valid Montana second-parent adoption must be recognized across the US.


Second-parent adoption vs. step-parent adoption

In Montana, second-parent adoptions allow both opposite-sex and LGBTQ parents who aren’t married to guarantee that those who aren’t biologically/legally related to their child can secure their parental rights.

Although similar, second-parent adoption varies from step-parent adoption because the latter implies that the petitioner is married to the legal parent of the child. It also implies the termination of parental rights of the non-custodial, biological parent. This is an option for married couples who wish to protect their legal status as parents.


Protecting your child’s best interests

In many cases, second-parent adoption and step-parent adoption are the best ways to protect a child’s best interests. If you don’t have any legal parental rights to your child, then a breakup, a death, or other situations can jeopardize your relationship with your child — and their stability. This could make you lose your right to visit, the power to make decisions, etc.

What can be done? You can protect your rights as a parent, and you can protect your child’s rights to have both of their parents in their life.  Even if you’re married to your spouse, and even if you’re listed on your child’s birth certificate, it may be in your family’s best interest to go through an adoption process to make sure your rights are well-established under the law.  

Call (406) 203-0913 to speak with an experienced attorney familiar with how Montana’s laws affect LGBT+ families or contact our office online.