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Hawaii Adoption Laws and Statutes
Division 3
Title 31
Chapter 578: Adoption
Sections 1-17
(This page was last updated on 08/16/13.)
Section 578-1 Who may adopt; jurisdiction; venue.
Section 578-1.5 Adoption.
Section 578-2 Consent to adoption.
Section 578-3 Custody of child pendente lite.
Section 578-4 Notice to resident nonconsenting legal parent whose rights have not been terminated.
Section 578-5 Same; proof of.
Section 578-6 Notice to nonresident or unlocated nonconsenting legal parent whose rights have not been terminated.
Section 578-7 Substituted or constructive service.
Section 578-8 Hearing; investigation; decree.
Section 578-9 Custody of minor child after decree and before adoption.
Section 578-10 Disposition of minor child on discontinuance, withdrawal or denial of petition.
Section 578-11 Disposition in case of death of petitioners.
Section 578-12 Setting aside or modifying decree.
Section 578-13 Change of name.
Section 578-14 Record of adoption.
Section 578-14.5 Medical information on the natural parents of the adopted minor child.
Section 578-15 Secrecy of proceedings and records.
Section 578-16 Effect of adoption.
Section 578-17 Guardian ad litem.
§578-1 Who may adopt; jurisdiction; venue. Any proper adult person, not married, or any person married to the legal father or mother
of a minor child, or a husband and wife jointly, may petition the family court of the circuit in which the person or persons reside or are in military service
or the family court of the circuit in which the individual to be adopted resides or was born or in which a child placing organization approved by the department
of human services under the provisions of section 346-17 having legal custody (as defined in section 571-2) of the child is located, for leave to adopt
an individual toward whom the person or persons do not sustain the legal relationship of parent and child and for a change of the name of the individual.
When adoption is the goal of a permanent plan recommended by the department of human services and ordered pursuant to section 587-73, the department may
petition for adoption on behalf of the proposed adoptive parents. The petition shall be in such form and shall include such information and exhibits as
may be prescribed by the family court.
Case Notes
Family court had jurisdiction over adoption of children residing in Philippines since petitioners were Hawaii residents. 421 F. Supp.
80.
In the absence of an adoption in writing parents are presumed not to have parted with the right of custody over their child. 6 H. 386.
Until legally adopted parent not precluded by surrender of child from asserting parental rights. 31 H. 328. Child not "surrendered"
by one parent when custody awarded by divorce decree to other parent, consent of such parent must be obtained for adoption of child. 32 H. 443. Child not
"abandoned" by mother who lives apart from husband. 32 H. 479. "Abandoned" defined. 37 H. 532.
Adoption proceedings are wholly statutory.
§578-1.5 Adoption. Any person may be adopted under this chapter; provided that an adult to be adopted must give written consent
to the adoption.
§578-2 Consent to adoption. (a) Persons required to consent to adoption. Unless consent is not required or is dispensed with under
subsection (c) hereof, a petition to adopt a child may be granted only if written consent to the proposed adoption has been executed by:
(1) The mother of the child;
(2) A legal father as to whom the child is a legitimate child;
(3) An adjudicated father whose relationship to the child has been determined by a court;
(4) A presumed father under section 578-2(d);
(5) A concerned natural father who is not the legal, adjudicated, or presumed father but who has demonstrated a reasonable degree of
interest, concern or responsibility as to the welfare of a child, either:
(A) During the first thirty days after such child's birth; or
(B) Prior to the execution of a valid consent by the mother of the child; or
(C) Prior to the placement of the child with adoptive parents;
whichever period of time is greater;
(6) Any person or agency having legal custody of the child or legally empowered to consent;
(7) The court having jurisdiction of the custody of the child, if the legal guardian or legal custodian of the person of the child is
not empowered to consent to adoption;
(8) The child to be adopted if more than ten years of age, unless the court in the best interest of the child dispenses with the child's
consent.
(b) A petition to adopt an adult may be granted only if written consent to adoption has been executed by the adult and the adult's spouse,
if the adult is married.
(c) Persons as to whom consent not required or whose consent may be dispensed with by order of the court.
(1) Persons as to whom consent not required:
(A) A parent who has deserted a child without affording means of identification for a period of ninety days;
(B) A parent who has voluntarily surrendered the care and custody of the child to another for a period of two years;
(C) A parent of the child in the custody of another, if the parent for a period of at least one year has failed to communicate with the
child when able to do so;
(D) A parent of a child in the custody of another, if the parent for a period of at least one year has failed to provide for the care
and support of the child when able to do so;
(E) A natural father who was not married to the child's mother at the time of the child's conception or birth and who does not fall within
the provisions of subsection (a)(3), (4), or (5);
(F) A parent whose parental rights have been judicially terminated under the provisions of sections 571-61 to 571-63, or under the provisions
of any other state or other law by a court or other agency having jurisdiction to take the action;
(G) A parent judicially declared mentally ill or mentally retarded and who is found by the court to be incapacitated from giving consent
to the adoption of the child;
(H) Any legal guardian or legal custodian of the child sought to be adopted, other than a parent, who has failed to respond in writing
to a request for consent for a period of sixty days or who, after examination of the person's written reasons for withholding consent, is found by the court
to be withholding the person's consent unreasonably;
(I) A parent of a child who has been in the custody of a petitioner under this chapter for a period of at least one year and who entered
the United States of America as a consequence of extraordinary circumstances in the child's country of origin, by reason of which extraordinary circumstances
the existence, identity, or whereabouts of the child's parents is not reasonably ascertainable or there is no reasonable means of obtaining suitable evidence
of the child's identity or availability for adoption;
(J) Any parent of the individual to be adopted, if the individual is an adult eligible for adoption under subsection (b); and
(K) A parent whose parental and custodial duties and rights have been divested by an award of permanent custody pursuant to section 587-73.
(2) Persons whose consent may be dispensed with by order of the court. The court may dispense with the consent of a parent who comes
within subsection (a)(3), (4), or (5) herein, upon finding that:
(A) The petitioner is the stepfather of the child and the child has lived with the child's legal mother and the petitioning stepfather
for a period of at least one year;
(B) The father is a concerned father as provided by subsection (a)(5), herein, and has not filed a petition to adopt the child, or the
petition to adopt the child filed by the father has been denied; or
(C) The father is an adjudicated, presumed, or concerned father as provided by subsections (a)(3), (4), or (5), herein, and is not a
fit and proper person or is not financially or otherwise able to give the child a proper home and education.
(d) Presumption of paternity. A man is presumed to be the natural father of a child if:
(1) He and the child's natural mother are or have been married to each other and the child is born during the marriage, or within three
hundred days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a decree of separation is entered by
a court;
(2) Before the child's birth, he and the child's natural mother have attempted to marry each other by a marriage solemnized in apparent
compliance with law, although the attempted marriage is or could be declared invalid, and:
(A) If the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage, or within three
hundred days after its termination by death, annulment, declaration of invalidity, or divorce; or
(B) If the attempted marriage is invalid without a court order, the child is born within three hundred days after the termination of
cohabitation;
(3) After the child's birth, he and the child's natural mother have married, or attempted to marry, each other by a marriage solemnized
in apparent compliance with law, although the attempted marriage is or could be declared invalid; and
(A) He has acknowledged his paternity of the child in writing filed with the department of health;
(B) With his consent he is named as the child's father on the child's birth certificate; or
(C) He is obligated to support the child under a written voluntary promise or by court order;
(4) While the child is under the age of majority, he receives the child into his home and openly holds out the child as his natural child;
or
(5) He acknowledges his paternity of the child in writing filed with the department of health, which shall promptly inform the mother
of the filing of the acknowledgment, and she does not dispute the acknowledgment within a reasonable time after being informed thereof, in a writing filed
with the department of health. If another man is presumed under this section to be the child's father, acknowledgment may be effected only with the written
consent of the presumed father or after the presumption has been rebutted. If the acknowledgment is filed and not disputed by the mother and if another
man is not presumed under this section to be the child's father, the department of health shall prepare a new certificate of birth in accordance with chapter
338.
(e) Notice of hearing; minor parent; consent authorizing selection of adoptive parents. No hearing of a petition for adoption shall be
had unless each of the living parents of the child who falls within the provisions of subsection (a) and who has not consented to the proposed adoption,
but who is alleged to come within the provisions of subsection (c)(1)(A), (B), (C) and (D) or (c)(2) of this section, and any man whose name appears as
father on the child's birth certificate, shall have had due notice, actual or constructive, of the allegations of the petition and of the time and place
of the hearing thereof. Such notice need not be given to any parent whose parental rights have been legally terminated as herein above provided or whose
consent has been filed with the court.
The minority of a child's parent shall not be a bar to the right of such parent to execute a valid and binding consent to the adoption
of such child.
Any parental consent required hereunder shall be valid and binding even though it does not designate any specific adoptive parent or
parents, if it clearly authorizes the department of human services, or a child placing organization approved by the department under the provisions of section
346-17 or some proper person not forbidden by law to place a child for adoption, to select and approve an adoptive parent or parents for the child.
(f) Withdrawal of consent. A consent to adoption which has been filed or received in evidence in an adoption proceeding or which has
been given to the department of human services or to a child placing organization approved by the department under section 346-17, or to any other proper
person not forbidden by law to place or receive an individual for adoption, may not be withdrawn or repudiated after the individual has been placed for
adoption, without the express approval of the court based upon a written finding that such action will be for the best interests of the individual to be
adopted.
(g) Maintenance of action based on medical or surgical treatment of child barred when. A person who consents to adoption, or on whose
behalf a consent to adoption is signed, and a nonconsenting parent whose consent is not required or is dispensed with hereunder shall be barred from maintaining
any action based upon medical or surgical care or treatment given to the child with the permission of the petitioner or petitioners or the person or agency
authorized by the parental consent to select and approve an adoptive parent or parents; provided that nothing herein contained shall be construed to alienate
or impair any cause of action accruing to the child for personal injury which may be sustained as a result of such medical or surgical care or treatment.
Case Notes
Mother who in divorce case consents to provision awarding care, custody and control of child to husband and reserving visiting rights
has not thereby surrendered to another the care and custody of the child within the meaning of this section. 32 H. 443. Voluntary surrender. 42 H. 250.
Appointment of guardian ad litem is within sound discretion of judge.
Nonsupport not synonymous with abandonment.
Necessity of natural father's consent after his marriage to the mother (under prior law).
"Has failed to communicate", as used in subsection (c), means failure, when able, to maintain contact which would show parental
love and concern; actual visit is communication.
"Placed for adoption" under subsection (f) discussed. 7
Consent to adoption must be acknowledged under Hawaii family court rule 103(F)(5).
On issue of whether court's allowance of withdrawal of consent to adoption under subsection (f) will be for the child's best interest,
§578-3 Custody of child pendente lite. At any stage of the proceeding subsequent to the filing of the petition and prior to the
entry of a decree, the court, upon a showing that the best interests of the child will be served thereby, may order that the petitioner or petitioners shall
be entitled to retain the custody and control of the child and shall be responsible for the care, maintenance and support of the child including any necessary
medical or surgical treatment, pending the further order of the court. Such order may also authorize and legally obligate the petitioner or petitioners
to arrange for the burial of the child if the child shall die prior to the entry of the decree.
§578-4 Notice to resident nonconsenting legal parent whose rights have not been terminated. If a legal parent to whom notice must
be given as aforesaid is within the State, a summons issuing under the seal of the court and containing a notification as to the time and place of hearing,
shall be served by the sheriff or the sheriff's deputy, any police officer, or any person authorized by court rule, upon such parent by the delivery to
the parent of a certified copy thereof, and of the petition for adoption; or in case the parent cannot be found, by leaving copies of the summons and petition
with some agent or person transacting the business of the parent, or by leaving such copies at the parent's last known place of residence. When service
is made pursuant to this section, the time appointed for the hearing of the petition shall be not less than ten days subsequent to the date of service as
herein provided.
§578-5 Same; proof of. A return of service of the summons shall be made by the serving officer in the manner prescribed by section
634-22, and be similarly effective.
Revision Note: Section "634-22" substituted for "634-58".
§578-6 Notice to nonresident or unlocated nonconsenting legal parent whose rights have not been terminated. If a legal parent to
whom notice must be given as aforesaid was never an inhabitant of the State, or has removed therefrom, or if, after due diligence, the parent cannot be
found within the State, and the fact appears by affidavit to the satisfaction of the court, it may be ordered by the court that the service be made under
section 578-7.
§578-7 Substituted or constructive service. Upon the filing of the affidavit referred to in section 578-6, the court may order service
of the notice prescribed in sections 578-2 and 578-4 to be made as follows:
(1) Personal service or service by registered mail without the State. If the residence of a nonresident legal parent is known or is ascertained
at any stage of the proceeding prior to the filing of a return of service pursuant to section 578-5, the court may order that service of notice of the time
and place of hearing of the petition and of a copy thereof and of a copy of the court's order be made upon such parent (A) by personal service thereof,
without the State, by such person and in such manner as the court may direct, or (B) by sending certified copies of the petition and of the notice of the
time and place of the hearing thereof and of the court's order, by registered mail, addressed to such parent, with request for return receipt, which service,
evidenced by such receipt signed by the parent and returned to the clerk of the court, shall be regarded as equivalent to service by publication or in lieu
thereof. When service is made pursuant to this paragraph, the time appointed for the hearing of the petition shall be not less than twenty-one days subsequent
to the date of service as herein provided.
(2) Service by publication. If the residence of such parent is not known and cannot be ascertained, or if an attempt to effect service
by either of the methods authorized in paragraph (1) hereof is unsuccessful, the court may order that service shall be made by publication. The order shall
direct that publication of notice of the pendency of the petition and of the time and place of the hearing thereof be made in a newspaper or newspapers
suitable for the advertisement of notices of judicial proceedings once in each week for not less than four successive weeks as the court may prescribe,
the last publication to be not less than twenty-one days prior to the time appointed for the hearing of the petition. The court may, in addition to ordering
publication, direct that a copy of the petition and notice be forthwith deposited in the post office, addressed to such parent at the parent's last known
place of residence. The service of the notice required by section 578-2 shall be deemed complete at the expiration of the time prescribed by the order of
publication.
Cross References
Service by certified mail, see §1-28.
§578-7 Substituted or constructive service. Upon the filing of the affidavit referred to in section 578-6, the court may order service
of the notice prescribed in sections 578-2 and 578-4 to be made as follows:
(1) Personal service or service by registered mail without the State. If the residence of a nonresident legal parent is known or is ascertained
at any stage of the proceeding prior to the filing of a return of service pursuant to section 578-5, the court may order that service of notice of the time
and place of hearing of the petition and of a copy thereof and of a copy of the court's order be made upon such parent (A) by personal service thereof,
without the State, by such person and in such manner as the court may direct, or (B) by sending certified copies of the petition and of the notice of the
time and place of the hearing thereof and of the court's order, by registered mail, addressed to such parent, with request for return receipt, which service,
evidenced by such receipt signed by the parent and returned to the clerk of the court, shall be regarded as equivalent to service by publication or in lieu
thereof. When service is made pursuant to this paragraph, the time appointed for the hearing of the petition shall be not less than twenty-one days subsequent
to the date of service as herein provided.
(2) Service by publication. If the residence of such parent is not known and cannot be ascertained, or if an attempt to effect service
by either of the methods authorized in paragraph (1) hereof is unsuccessful, the court may order that service shall be made by publication. The order shall
direct that publication of notice of the pendency of the petition and of the time and place of the hearing thereof be made in a newspaper or newspapers
suitable for the advertisement of notices of judicial proceedings once in each week for not less than four successive weeks as the court may prescribe,
the last publication to be not less than twenty-one days prior to the time appointed for the hearing of the petition. The court may, in addition to ordering
publication, direct that a copy of the petition and notice be forthwith deposited in the post office, addressed to such parent at the parent's last known
place of residence. The service of the notice required by section 578-2 shall be deemed complete at the expiration of the time prescribed by the order of
publication.
§578-8 Hearing; investigation; decree. (a) No decree of adoption shall be entered unless a hearing has been held at which the petitioner
or petitioners, and any legal parent married to a petitioner, and any subject of the adoption whose consent is required, have personally appeared before
the court, unless expressly excused by the court. After considering the petition and such evidence as the petitioners and any other properly interested
person may wish to present, the court may enter a decree of adoption if it is satisfied (1) that the individual is adoptable under sections 578-1 and 578-2,
(2) that the individual is physically, mentally, and otherwise suitable for adoption by the petitioners, (3) that the petitioners are fit and proper persons
and financially able to give the individual a proper home and education, if the individual is a child, and (4) that the adoption will be for the best interests
of the individual, which decree shall take effect upon such date as may be fixed therein by the court, such date to be not earlier than the date of the
filing of the petition and not later than six months after the date of the entry of the decree.
(b) Before entering the decree, the court shall notify the director of human services of the pendency of such petition for adoption and
allow a reasonable time for the director to make such investigation as the director may deem proper as to the fitness of the petitioners to adopt the individual,
however, the physical disability of the petitioners shall not of itself be determinant of unfitness for purposes of this section, and as to whether the
best interest of the individual will be subserved by the adoption; provided that the court may, if it finds that the best interests of the individual to
be adopted so require, by written order waive the requirement for notification and investigation above set forth, and enter its decree solely on the basis
of the evidence adduced at the hearing. The director shall have the right to intervene in any adoption proceeding for the purpose of protecting the interests
of the individual to be adopted or of any legal parent of the individual, and shall have the same rights of appeal as any party to the proceeding. The attorney
general, upon the request of the director, shall represent the director in any such proceeding. The director, when notified as above set forth, or when
the director has intervened without notification, shall make a report to the court within the time required, reporting the facts disclosed and the director's
recommendation; provided that the director, if the director determines that the best interests of the individual to be adopted will be served thereby, may
refer any such notification to a child placing organization approved by the department under section 346-17, and the report and recommendation of such organization,
when forwarded by the director, shall be considered by the court in lieu of a report and recommendation by the director. If the court determines that any
such report discloses facts adverse to the petitioners or indicates that the best interests of the individual to be adopted will not be subserved by the
proposed adoption, it shall thereupon give notice of the determination to the petitioners and afford them a reasonable opportunity to rebut the report.
(c) In cases where a child is adopted from a foreign country and is brought into the State, the court, in its discretion, may dispense
with a hearing upon receipt of a sworn affidavit, ex-parte, from the adoptive parents requesting that the hearing be dispensed with, and upon a finding
that the issues it would have reviewed have received full consideration by the country from which the child was adopted and the United States Citizenship
and Immigration Services.
Decree of adoption not subject to collateral attack where court had jurisdiction of parties and subject matter. 11 H. 450; 26 H. 439,
515. Appeal from decree, who may. 45 H. 69, 361 P.2d 1054.
Decree of adoption refused when petitioners not proper persons to have care and custody of child. 29 H. 238.
Attorney's fees may not ordinarily be awarded in absence of statute or agreement. 56 H. 543, 544 P.2d 728.
Responsibility of department of human services discussed, where family court erred in concluding that adoption agreement, which allowed
termination of foster board payments prior to completion of adoption process, violated public policy. 74 H. 409, 849 P.2d 55.
§578-9 Custody of minor child after decree and before adoption. The decree may provide that, during the period, if any, between
the entry thereof and the effective date of adoption, the care, custody, and control of a minor child be given to the petitioner or petitioners, who, in
such event, shall be liable during such period for the care, maintenance, and support of the minor child and for its torts in the same manner as legal parents,
and may further provide for the supervision and visitation of the minor child by the director of human services or the director's agent during such period
and for such reports in connection therewith as the court may require.
§578-10 Disposition of minor child on discontinuance, withdrawal or denial of petition. Upon the discontinuance or withdrawal or
denial of any petition for adoption, the court may make appropriate temporary orders concerning the care, custody and control of a minor child involved
and may refer the minor child to the department of human services or to another appropriate agency or officer for action as in the case of a minor subject
to section 571-11(1).
§578-11 Disposition in case of death of petitioners. Notwithstanding the death of a petitioner or the petitioners during the pendency
of the petition, the court, if it finds that the best interests of the individual to be adopted will be served thereby, and, in the case of a surviving
petitioner, that such petitioner so desires, may enter a decree of adoption as prayed for in the petition, effective as of the date of the filing of the
petition.
§578-12 Setting aside or modifying decree. At any time within one year from the date of entry of any decree of adoption, the court
may, for good cause, set aside or modify the decree and, in connection therewith, may make appropriate orders, concerning the custody of the minor child
and the disposition and handling of the record of adoption by the department of health. The setting aside or modification of any decree of adoption shall
not affect any property rights which have become vested between the date of the entry of the decree or the effective date of the decree and the effective
date of any order setting aside or modifying the decree of adoption.
No decree of adoption shall be subject to attack in any collateral proceeding, and, after the expiration of one year from the date of
its entry, no decree of adoption shall be subject to direct attack upon any ground other than fraud rendering the decree void as of the time of its entry.
Case Notes
Review of decree: Persons entitled to petition for review, and to appeal from court's determination. 45 H. 69, 361 P.2d 1054.
Decree may not be attacked after one year except on the ground of fraud. 1 H. App. 364, 619 P.2d 1092.
§578-13 Change of name. The court may fix or change the given name and the family name of an adoptive minor child to the name stipulated
by the adoptive parents or that name which is in the best interest of the child.
The court may fix or change the given name and family name of an adoptive individual who is an adult at the time of the filing of the
petition for adoption to the name stipulated by the adoptive parents or that name which is in the best interest of the adult.
Case Notes
Change of family name is mandatory. 45 H. 69, 361 P.2d 1054.
§578-14 Record of adoption. (a) A certified copy of the decree of adoption, or a certified abstract thereof on a form approved by
the department of health, after the decree has become effective, shall be sent to the department. The department shall cause to be made a new record of
the birth in the name of the individual, as fixed or changed by the decree, with the names of the adoptive parents and, upon request of both adoptive parents,
or the sole adoptive parent if there is only one, that the name or names of either or both of the natural parents appear on the certificate, with the name
of a natural parent who consents to be named on the certificate.
(b) If a new birth certificate is issued, the original birth certificate shall be sealed and filed with the decree or the abstract thereof,
and the sealed package shall be opened only as provided in section 578-15(b).
(c) If the birth of the individual occurred outside of the State and a record of birth exists, the certified copy of the decree or the
abstract thereof, shall be transmitted by the department of health to the birth registration authorities of the place of the individual's birth with a request
that those authorities take appropriate action with respect to the record of the individual's birth. If the birth of the individual occurred outside of
the State, or if the birth of an individual born in the State has not been registered with the department of health, or if other good cause exists, the
clerk of the court, upon request, and with the approval of the family court, upon the finding of the court that the action is for the best interests of
the individual involved, shall furnish to the adoptive parents, or to the individual, or to any proper person acting in their behalf, a certified copy or
abstract of the decree of adoption or a certificate of adoption in a form approved by the court. If the parental rights of a parent or the parents of a
minor child have been judicially terminated under chapter 571 prior to the entry of the decree, a certified copy of the decree shall be filed in the termination
proceeding.
§578-14.5 Medical information on the natural parents of the adopted minor child. (a) The department of health shall prepare a standard
form entitled, "medical information form," for the purpose of perpetuating medical information on the natural parents of the adopted minor child.
This form shall include a request for any information relating to the adopted child's potential genetic or other inheritable diseases or afflictions, including
but not limited to known genetic disorders, inheritable diseases, and similar medical histories, if known, of the parents of the natural parents. The department
of health shall make these forms available to all affected public agencies, all child placing organizations approved by the department of human services
under section 346-17, attorneys, and other private individuals assisting the natural or adoptive parents in the adoption process, and the family court.
(b) All affected public agencies and all child placing organizations approved by the department of human services under section 346-17
shall make reasonable efforts to complete this form with medical information on both natural parents, to obtain from the natural parents written consent
to the release of this information to or for the benefit of the adopted child, and whenever possible, to obtain from the natural mother a signed release
to receive a copy of all of her medical records, relating to the birth of the adopted child, which are within the possession of the hospital or other facility
at which the child was born. When applicable, the family court may require the petitioner or the petitioner's agent in the adoption proceeding to obtain
this completed form from the natural parents with their consents and the signed release from the natural mother.
(c) Whenever possible, a completed form with the required information on each natural parent shall accompany any document, to be filed
with the family court, which requests the relinquishment, termination, or divestiture of parental rights, as provided under sections 571-61 and 587-73(b)(3),
and the petition for adoption under this chapter. If available, a copy of the hospital or other facility's medical records under subsection (b) shall also
accompany the document to be filed in the family court. This copy shall not be disseminated to the parties and shall be sealed by the family court pending
transmittal to the department of health.
(d) For good cause shown, the family court may waive the requirement in subsection (c).
(e) If the natural parents have been court ordered to complete the forms required in subsection (c) pursuant to section 587-71(n), and
have either failed to complete the forms or have failed to return the completed forms to the department of human services, the requirement in subsection
(c) shall be waived.
(f) The completed forms shall be made a part of the records of the department of health.
(g) The completed forms and, if applicable, the previously sealed copy of the natural mother's medical records shall be forwarded to
the department of health. The department shall extract from the medical records pertinent information relating to inheritable diseases and genetic disorders
and shall retain this information in an abstract. The completed forms and the abstract, if available, shall be included in the department's adoption records.
(h) An adopted child upon reaching the age of majority, the adoptive parent, guardian, or custodian on behalf of a minor adopted child,
or an authorized designee of the adult adopted child or of the minor's adoptive parent may file a written application with the department of health for
access to the information described in subsection (g).
(i) Upon the filing of the application in subsection (h), the department of health shall furnish the applicant with a copy of the completed
forms and, if available, the abstract of pertinent information from the natural mother's medical records. The department is authorized to disclose the information
under this subsection without prior court approval, notwithstanding section 338-20(e).
Nothing in this section shall be construed or applied in any manner to require any public agency or child placing organization to reveal
the identities of the natural parents without their consents.
§578-15 Secrecy of proceedings and records. (a) The records in adoption proceedings, after the petition is filed and prior to the
entry of the decree, shall be open to inspection only by the parties or their attorneys, the director of human services or the director's agent, or by any
proper person on a showing of good cause therefore, upon order of the court. Except in the case of an individual being adopted by a person married to the
legal father or mother of the individual or unless authorized by the court, no petition for adoption shall set forth the name of the individual sought to
be adopted or the name of either of the parents of the individual; provided that the legal name of the individual and the name of each of the individual's
legal parents may be added to the petition by amendment during the course of the hearing thereof and shall be included in the decree. The hearing of the
petition shall be in chambers and shall not be open to the public.
(b) Upon the entry of the decree, or upon the later effective date of the decree, or upon the dismissal or discontinuance or other final
disposition of the petition, the clerk of the court shall seal all records in the proceedings; provided that upon the written request of the petitioner
or petitioners, the court may waive the requirement that the records be sealed. The seal shall not be broken and the records shall not be inspected by any
person, including the parties to the proceedings, except:
(1) Upon order of the family court upon a showing of good cause;
(2) For adoptions which occurred prior to January 1, 1991, after the adopted individual attains the age of eighteen and upon submission
to the family court of a written request for inspection by the adopted individual or the adoptive parents in accordance with the following:
(A) Within sixty calendar days after receipt of a request for inspection, the family court, by certified mail with return receipt requested,
shall mail to the last known address of each natural parent a notice of the request for inspection of adoption records, a copy of the request for inspection
and copies of any accompanying letters, photographs, or other documents submitted in support of the request. The notice shall inform the natural parent
that unless an affidavit signed by the natural parent requesting confidentiality is received by the family court within sixty calendar days of the date
of receipt of the notice, the natural parent will be deemed to have waived any rights of confidentiality and the records shall be subject to inspection
by the adopted individual or the adoptive parent who submitted the request. The notice shall also inform the natural parent that an affidavit requesting
confidentiality for a period of ten years may be filed. A blank affidavit to be completed and signed by the natural parent shall be mailed with the notice;
(B) If the family court has received a return receipt for the notice but an affidavit requesting confidentiality is not received by the
family court within sixty calendar days of the date of receipt of the notice, the family court shall allow inspection under this section;
(C) If the notice is returned as undeliverable to a natural parent, the family court shall designate an agent or agency to conduct a
good faith and diligent search to locate the natural parent and to provide the notice and all other documents required under subparagraph (A). The search
shall extend over a period not to exceed one hundred eighty calendar days. Contacts with natural parents by a designated agent or agency under this section
shall be personal, whenever possible, and confidential. The family court shall provide the designated agent or agency with a copy of the request for inspection
and copies of any accompanying letters, photographs, or other documents submitted in support of the request, and the designated agent or agency shall present
the copies to the natural parent when contacted. The family court and the designated agent or agency shall ensure that no person other than a natural parent
or the agent or agency through which a natural parent obtained assistance for the adoption is informed of the adoptive individual's existence and the relationship
to the natural parent;
(D) If a natural parent cannot be located after the search conducted under subparagraph (C), the family court shall allow inspection
under this section;
(E) If an affidavit requesting confidentiality is received by the family court within sixty calendar days of the date of receipt of the
notice provided under subparagraph (A) or (C), the family court shall not allow inspection during the effective period of the affidavit;
(F) If a ten-year affidavit is filed under subparagraph (E), the natural parent may refile affidavits every ten years thereafter to maintain
confidentiality, or the natural parent may file an affidavit effective for the remainder of the natural parent's lifetime. All affidavits subsequent to
the initial affidavit may be filed within ninety calendar days before the last effective day of the initial affidavit. If there is no effective affidavit
on file with the family court at the time a request for inspection is received by the court, the court shall allow inspection under this paragraph;
(G) An affidavit requesting confidentiality shall be effective until the last day of the period for which the affidavit was filed, until
the natural parent revokes the affidavit, or until the natural parent is deceased, whichever occurs sooner; and
(H) Where two natural parents are involved and confidentiality is waived under this paragraph by only one natural parent, the inspection
of the records shall not include any identifying information concerning the other natural parent;
(3) For adoptions occurring after December 31, 1990, in accordance with the following:
(A) Each natural parent shall be informed of the procedures required under this paragraph if the natural parent desires to maintain confidentiality
after the adopted individual attains the age of eighteen;
(B) Within ninety calendar days before the adopted individual attains the age of eighteen a natural parent may file an affidavit with
the family court to request confidentiality and the natural parent may refile affidavits every ten years thereafter to maintain confidentiality or the natural
parent may file an affidavit effective for the remainder of the natural parent's lifetime. All affidavits after the initial affidavit may be filed within
ninety calendar days before the last effective day of the initial affidavit;
(C) If a natural parent declines or fails to file an affidavit under subparagraph (B), the family court shall allow inspection of the
record by the adopted individual or the adoptive parents at any time after the adopted individual has attained the age of eighteen; and
(D) Where two natural parents are involved and confidentiality is waived under this paragraph by only one natural parent, the inspection
of the records shall not include any identifying information concerning the other natural parent;
(4) For all adoptions, regardless of date of occurrence, after the adopted individual attains the age of eighteen and upon submission
to the family court of a written request for inspection by a natural parent; provided that the adopted individual shall have the same rights and obligations
applicable to natural parents under paragraphs (2) and (3), including rights of notice and opportunity to file affidavits requesting confidentiality.
(5) For all adoptions, regardless of date of occurrence, after the adopted individual attains the age of eighteen and upon submission
of an affidavit by a natural parent consenting to the inspection of records by the adoptee or an affidavit submitted by an adoptee consenting to the inspection
of records by the natural parents; provided that where only one natural parent files an affidavit for consent, the inspection of records shall not include
any identifying information concerning the other natural parent;
(6) Upon request by the adopted individual or the adoptive parents for information contained in the records concerning ethnic background
and necessary medical information, notwithstanding any affidavit requesting confidentiality; or
(7) Upon request by a natural parent for a copy of the original birth certificate.
As used in this subsection, "natural parent" means a biological mother or father, or a legal parent who is not also the biological
parent.
(c) The clerk of the court shall keep a docket of all adoption proceedings, which may be inspected only by order of the family court.
§578-16 Effect of adoption. (a) A legally adopted individual shall be considered to be a natural child of the whole blood of the
adopting parent or parents as provided in the Uniform Probate Code, relating to the descent of property.
(b) The former legal parent or parents of an adopted individual and any other former legal kindred shall not be considered to be related
to the individual as provided in the Uniform Probate Code except as provided in this section.
(c) An adopted individual and the individual's adopting parent or parents shall sustain towards each other the legal relationship of
parents and child and shall have all the rights and be subject to all the duties of that relationship, including the rights of inheritance from and through
each other and the legal kindred of the adoptive parent or parents, the same as if the individual were the natural child of the adopting parent or parents.
(d) Except as provided in subsection (e), all legal duties and rights between the individual and the individual's former legal parent
or parents shall cease from the time of the adoption; provided that if the individual is adopted by a person married to a legal parent of the individual,
the full reciprocal rights and duties which theretofore existed between the legal parent and the individual, and the rights of inheritance as between the
individual and the legal parent and the legal relatives of the parent, as provided in chapter 560, shall continue, notwithstanding the adoption, subject
only to the rights acquired by and the duties imposed upon the adoptive parents by reason of the adoption.
(e) Notwithstanding subsections (b) and (d), if an individual is adopted before that individual attains the age of majority and:
(1) The individual is adopted by a spouse of a natural parent of the individual; or
(2) The individual is adopted by a natural grandparent, aunt, uncle, or sibling of the individual or the spouse of a natural grandparent,
aunt, uncle, or sibling;
then for the purposes of interpretation or construction of a disposition in any will, trust, or other lifetime instrument, whether executed
before or after the order of adoption, and for purposes of determining heirs at law, the rights of the adopted individual and the individual's descendants
with respect to the individual's natural family shall not be affected by the adoption, and they shall be included in any determination of heirs or members
of any class, unless specifically excluded by name or class.
(f) An adopted individual, who by reason of subsection (e) would be a member of two or more designations or classes pursuant to a single
instrument, both by relationship through a natural parent and through an adoptive parent, shall be entitled to benefit by membership in only one of these
designations or classes, which shall be the larger share.
(g) For purposes of this section, if a person has been adopted more than once, the term "natural parent" includes an adopting
parent by an earlier adoption.
(h) An individual legally adopted under the laws of any state or territory of the United States or under the laws of any nation shall
be accorded the same rights and benefits in all respects as an individual adopted under this chapter.
Attorney General Opinions
Natural first cousins who by adoption become uncle and niece not disqualified to intermarry. Att. Gen. Op. 62-49.
For vital statistics purposes, an adoption has no effect on the race of the adopted individual. Att. Gen. Op. 83-3.
Case Notes
A child adopted by ancient custom has rights of inheritance. 3 H. 342; 3 H. 368. Inherits to exclusion of collateral kindred. Id. Inheritance
under prior statutes; adoptive father does not inherit property of adopted child. 3 H. 484. Prior to April 26, 1905 (Act 83, L. 1905) an adopted child did
not inherit from adoptive parents unless given the right specifically in the agreement of adoption. 3 H. 262; 13 H. 206. L 1905, c 83 conferred right of
inheritance on one adopted by agreement prior to statute. 21 H. 304. Adoptive child inherits through its adoptive parent's father. 26 H. 439. Adopted child
can inherit through adoptive parents and may be an heir of ancestor of adoptive parent. 42 H. 129. Review of decisions on inheritance by adopted children.
42 H. 640. Had testator not desired the adopted child to be a natural child he could have so drawn his will. Id. Presumed testator intended to follow the
policy of the law to treat adopted children as natural children, when such policy had its origin before the will was executed. 49 H. 273, 414 P.2d 925.
Adopted child "issue" of testator's child. Id.
Agreement of adoption not recorded, of no validity. 2
Adoption of adults is not authorized by statute.
§578-17 Guardian ad litem. Upon a finding by the court, in any stage of a proceeding under this chapter, that the best interests
of a child whose adoption is sought herein will be served by the appointment of a guardian ad litem for said child, the court may appoint a guardian ad
litem to preserve, protect and promote the best interests of the child.
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