Montana Code 41-3-1328. Removal of Indian child from adoptive or foster care placement
41-3-1328. (Temporary) Removal of Indian child from adoptive or foster care placement. (1) If a final decree of adoption of an Indian child has been vacated or set aside or the adoptive parents voluntarily consent to the termination of their parental rights to the Indian child, the biological parent or prior Indian custodian may petition to have the Indian child returned to the custody of the parent or Indian custodian. The court shall grant the request unless there is a showing by clear and convincing evidence that return of custody to the biological parent or Indian custodian is not in the best interests of the child.
Terms Used In Montana Code 41-3-1328
- Adoptive placement: means the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption. See Montana Code 41-3-1303
- Best interests of the child: means the physical, mental, and psychological conditions and needs of the child and any other factor considered by the court to be relevant to the child. See Montana Code 41-3-102
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Foster care placement: means an action removing an Indian child from the child's parent or Indian custodian for temporary placement in a foster home or institution or with a relative, guardian, conservator, or suitable other person under which the parent or Indian custodian may not have the child returned on demand but parental rights have not been terminated. See Montana Code 41-3-1303
- Indian: means a person who is a member of an Indian tribe or who is an Alaska Native and a member of a regional corporation as established in 43 U. See Montana Code 41-3-1303
- Indian child: means an unmarried Indian person who is under 18 years of age and who is:
(a)a member of an Indian tribe; or
(b)eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe. See Montana Code 41-3-1303
- Indian custodian: means an Indian person who under tribal law, tribal custom, or state law has legal or temporary physical custody of an Indian child or to whom the parent has transferred temporary care, physical custody, and control of the Indian child. See Montana Code 41-3-1303
- Parent: means a biological parent of an Indian child or an individual who has lawfully adopted an Indian child, including adoptions made as tribal customary adoptions. See Montana Code 41-3-1303
(2)If an Indian child is removed from a foster care placement or a preadoptive or adoptive home for the purposes of further foster care or a preadoptive or adoptive placement, the placement must be made in accordance with this part unless an Indian child is being returned to the parent or Indian custodian from whose custody the child was originally removed. (Terminates June 30, 2025–sec. 55, Ch. 716, L. 2023.)