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I’ve never been to Montana. And after studying their post-adoption contact agreement laws, I’m glad that I didn’t live in Montana when I placed the Munchkin for adoption. Basically the statutes leave us asking more questions than when we began.
Let the frustrations begin.
What may be included in postadoption contact agreements?
Citation: Ann. Code § 42-5-301
An express written agreement may be entered into between the birth parent and the prospective adoptive parent for contact or communication between the adoptee and the birth parents or family.
Beyond the words “written agreement” and “contact or communication,” we don’t really have an inkling as to what can be included in post-adoption contact agreements in this state. Even more important for some cases, we don’t know what cannot be included. That said, families surely could use the vague wording to their advantage. Or disadvantage if you weren’t aware of things you could include when no stipulations are put upon the contract.
Who may be a party to a postadoption contact agreement?
Citation: Ann. Code § 42-5-301
The agreement may be entered into between the placing parent and the prospective adoptive parent.
Again, this is a little redundant since the previous question’s answer overstepped its boundaries upon answering and left little room for this one to have a different answer. That said, I need to toot Montana’s horn for just a brief moment. Referring to the birth parent, prior to the actual adoption, as a placing parent shows a move towards some kind of understanding of the process that most states aren’t offering up. For example, a few states will refer to the adoptive family, at this stage in the game, as prospective adoptive family while, at the same time, naming the other party simply as “birth parents.” If one is prospective, the other should be as well. Acknowledging that is a step in the right direction. Good job, Montana.
What is the role of the court in postadoption contact agreements?
Citation: Ann. Code § 42-5-301
Any express written agreement entered into between the placing parent and the prospective adoptive parent after the execution of a relinquishment and consent to adoption is independent of the adoption proceedings, and any relinquishment and consent to adopt remains valid whether or not the agreement for contact or communication is later performed. Failure to perform an agreement is not grounds for setting aside an adoption decree.
Now, stating that a failure to perform within the bounds of an agreement doesn’t negate the adoption is important. But once again, the state neglected to fully answer the question. Understandably, the court is not going to reverse the adoption decree. But what will the court do? Will they simply enforce the families to uphold their end of the deal? Or will they turn cartwheels while tooting on kazoos? As crazy as the latter seems, it seems equally as crazy not to address what the court is legally capable of doing in such a situation.
Are agreements legally enforceable?
Citation: Ann. Code § 42-5-301
The court may order that an agreement for contact or communication entered into under this section may not be enforced upon a finding that:* Enforcement is detrimental to the child.
* Enforcement undermines the adoptive parent’s parental authority.
* Due to a change in circumstances, compliance with the agreement would be unduly burdensome to one or more of the parties.
Oof! While they didn’t address their role in the previous issue, they surely brought some new issues to the table of this discussion that we haven’t previously seen. First of all, the court doesn’t say under what circumstances they will enforce the contract and exactly how that enforcement will be brought forth. Without those two questions answered, certain parties to an adoption may not feel as though they have to do what they agreed to do.
Secondly, this is the first time we’ve seen the phrase “undermines the adoptive parent’s parental authority.” What, exactly, undermines the adoptive parent’s parental authority? Some adoptive parents get angry when a birth mother asks to be called by a certain title, whether it’s birth, first, natural or biological mother. Is that undermining their authority by requesting a name? While it’s understandable that birth parents shouldn’t be making parenting decisions for their child once the adoption is finalized, what exactly qualifies as undermining? If my daughter is about to run out into the street and I either call her back or physically stop her (without harming her), is that undermining their authority if they weren’t paying attention? Interesting choice of words that could surely raise a lot of questions in a courtroom!
Third, and leaving the most room for confusion, what exactly is “unduly burdensome?” Again, some would argue that any visitation is “unduly burdensome” while others don’t mind traveling cross-country to visit with one another. How are these situations to be resolved? If the birth parent doesn’t find it “unduly burdensome” to fly cross-country to visit her placed child but the adoptive family says that it is, will all visitation be canceled because enforcing said visitation would “undermine the adoptive parent’s parental authority?” Interesting situations and huge messes could arise out of that wording. Can’t you see it now?
How may an agreement be terminated or modified?
This issue is not addressed in the statutes reviewed.
Oh, good job, Montana. Leave us with a bunch of questions and then give us absolutely no opportunity to change things within the contract. Really great job.
I’m especially frustrated with this state.
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For more, read:
1. Post-Adoption Contact Agreements: Missouri.
2. Post-Adoption Contact Agreements: Minnesota.
3. Information found on the State Statute Search at ChildWelfare.gov in November 2007.
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