Legal Question in Family Law in Montana

My husband (Married 3 years, together 5) wants to adopt my son. This is the only dad my son knows. He'll be 10 in November. His biological father hasn't seen him since 2006 before he was 3. My son has no clue who he is. He hasn't paid child support in almost 5 years. Hiding on the reservation and working with family under the table to avoid it. Would this be considered abandonment? What do I have to do without the legal ad process in the paper to just file papers to petition for my husband to adopt him? We've already filed a petition for him to sign over his rights and his biological father avoided avoided being served for 3 months until the papers were sent back to us. Please Help!


Asked on 10/01/13, 3:51 pm

1 Answer from Attorneys

Carolyn J. Stevens CJ Stevens|Law

If bio dad is hiding on the reservation, I assume the child is at least some blood quantum Native American. If that's the case, welcome to the more complicated world of Indian Child Welfare Act. Step-dad will need to comply with ICWA. I've done only a few adoptions that fell under ICWA, and they were more than five years ago, so I will not venture into this territory and make mistakes at your expense.

About service of process: The newspaper is your last resort service. You must first attempt to serve bio dad by personal service. Sometimes a savvy process server can get the job done, sometimes no one can find a well-hidden person. If the process server can't find the dad, you move the Court for leave to serve by publication. That's the pages and pages of tiny legal print you see in the classified section; each is a service by publication.

Just a thought: Bio dad might come out of hiding long enough to accept service, sign the Consent to Adoption, and have his signature notarized. If you have any clues where he might be, you could ask friends/relatives in the area if they would help you get the documents to him. All he would need to do is step out long enough to accept the documents from the server, sign them, and hand them back. Then Process Server could file the Certificate of Service attesting proper service, and sent the documents to you. Long shot, but it takes bio father off the hook he's been hiding from.

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Answered on 10/01/13, 5:34 pm


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