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Know the Law: An Adoption and a Legal Challenge

Written by: Jacqueline A. Leary (Botchman)

Published in the Union Leader (8/16/2020)

Q: I’m planning to adopt my stepchild. Do we need to provide notice to the biological parent?

A: This summer, the New Hampshire Supreme Court, in In re J.P., No. 2019-0743, 2020 WL 4375135 (N.H. July 31, 2020), provided important guidance on the construction of the state’s adoption statute pertaining to the notice requirement.

In In re J.P., which was tried and argued on appeal by the author, the court found the biological father was entitled to be notified.

RSA 170-B:6,I(d) states, in relevant part, notice of an adoption petition must be given to:

“A person who is ... providing financial support to (the birth mother) or the child at the time any action under this chapter is initiated and who is holding himself out to be the child’s father prior to the mother surrendering her parental rights ... or the mother’s parental rights being involuntarily terminated.”

The statute, therefore, requires notice of an adoption petition be given to a person who is “providing support to the birth mother or the child … and who is holding himself out to be the child’s father… prior to the mother surrendering her parental rights ... or the mother’s parental rights being involuntarily terminated.”

Until J.P., this provision arguably provided that, unless a mother’s parental rights are being surrendered or terminated, a man who is providing support and holding himself out to be the father has no right to notice of a proposed adoption.

The Probate Court and the Supreme Court rejected this narrow construction in favor of one that fulfills the statutory mandate that notice be construed “broadly.”

In J.P., a mother and stepfather had adopted J.P. without providing notice to the biological father. Unaware of the biological father’s father-son relationship, regular visits, and support payments, the probate court granted the unopposed adoption petition.

Upon discovery of the adoption, the father sought to vacate the order. The probate court conducted a trial on the merits and found the biological father was acknowledged by the mother, her family and his family as J.P.’s father; had regular visits with J.P.; and paid the mother monthly support.

The probate court ruled that the father was entitled to notice of the adoption and awarded the father fees and costs incurred in preparing for the case as well as fees and costs for genetic testing that confirmed the father’s paternity of J.P.

The New Hampshire Supreme Court affirmed the probate court’s order with the exception of the award of fees and costs related to genetic testing.

In re J.P. provides clarity on the “notice” and “holding out” provisions of the adoption statute. Counsel should be cautious when determining if an individual is entitled to notice.

Jacqueline can be reached at [email protected].

Know the Law is a bi-weekly column sponsored by McLane Middleton, Professional Association. We invite your questions of business law. Questions and ideas for future columns should be emailed to [email protected]. Please note – Know the Law provides general legal information, not legal advice. We recommend that you consult a lawyer for guidance specific to your particular situation.

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