MISSISSIPPI LEGISLATURE

1997 Regular Session

To: Judiciary A

By: Representative Green (72nd)

AN ACT TO AMEND SECTIONS 93-17-5 AND 93-17-7, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT A FATHER OF A CHILD BORN OUT OF WEDLOCK MUST ACKNOWLEDGE PATERNITY UNDER SECTION 93-9-28, MISSISSIPPI CODE OF 1972, IN ORDER TO CLAIM RIGHTS REGARDING THE CHILD IN ADOPTION PROCEEDINGS; TO AMEND SECTION 93-23-3, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT A FATHER OF A CHILD BORN OUT OF WEDLOCK MUST ACKNOWLEDGE PATERNITY UNDER SECTION 93-9-28, MISSISSIPPI CODE OF 1972, IN ORDER TO CLAIM A RIGHT TO CUSTODY OR VISITATION RIGHTS WITH RESPECT TO THE CHILD; AND FOR RELATED PURPOSES. 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 93-17-5, Mississippi Code of 1972, is amended as follows:

93-17-5. There shall be made parties to the proceeding by process or by the filing therein of a consent to the adoption proposed in the petition, which consent shall be duly sworn to or acknowledged and executed only by the following persons, but not before three (3) days after the birth of said child: (1) the parents, or parent, if only one (1) parent, though either be under the age of twenty-one (21) years; or, (2) in the event both parents are dead, then any two (2) adult kin of the child within the third degree computed according to the civil law, provided that, if one (1) of such kin is in possession of the child, he or she shall join in the petition or be made a party to the suit; or, (3) the guardian ad litem of an abandoned child, upon petition showing that the names of the parents of such child are unknown after diligent search and inquiry by the petitioners. In addition to the above, there shall be made parties to any proceeding to adopt a child, either by process or by the filing of a consent to the adoption proposed in the petition, the following:

(a) Those persons having physical custody of such child, except persons having such child as foster parents as a result of placement with them by the Department of Human Services of the State of Mississippi.

(b) Any person to whom custody of such child may have been awarded by a court of competent jurisdiction of the State of Mississippi.

(c) The agent of the county Department of Human Services of the State of Mississippi that has placed a child in foster care, either by agreement or by court order.

Such consent may also be executed and filed by the duly authorized officer or representative of a home to whose care the child has been delivered. The child shall join the petition by its next friend.

In the case of a child born out of wedlock, the father shall not be deemed to be a parent for the purpose of this chapter, and no reference shall be made to the illegitimacy of such child. Only if such father has voluntarily acknowledged paternity in accordance with Section 93-9-28 may he claim rights as a parent for the purpose of this chapter.

If such consent be not filed, then process shall be had upon the parties as provided by law for process in person or by publication, if they be nonresidents of the state or are not found therein, after diligent search and inquiry, or are unknown after diligent search and inquiry; provided that the court or chancellor in vacation may fix a date in term time or in vacation to which process may be returnable and shall have power to proceed in term time or vacation. In any event, if the child is more than fourteen (14) years of age, a consent to the adoption, sworn to or acknowledged by the child, shall also be required or personal service of process shall be had upon the child in the same manner and in the same effect as if it were an adult.

SECTION 2. Section 93-17-7, Mississippi Code of 1972, is amended as follows:

93-17-7. No infant shall be adopted to any person if either parent, as defined in Section 93-17-5, as amended by House Bill No. , 1997 Regular Session, after having been summoned, shall appear and object thereto before the making of a decree for adoption, unless it shall be made to appear to the court from evidence touching such matters that the parent so objecting had abandoned or deserted such infant or is mentally, or morally, or otherwise unfit to rear and train it, including, but not limited to, being within any of the grounds requiring termination of parental rights as set forth in subsections (2) and (3)(a), (b), (d) or (e) of Section 93-15-103 in either of which cases the adoption may be decreed notwithstanding the objection of such parent, first considering the welfare of the child, or children, sought to be adopted. Provided, however, the parents shall not be summoned in the adoption proceedings nor have the right to object thereto if the parental rights of the parent or parents have been terminated by the procedure set forth in Sections 93-15-101 through 93-15-111, and such termination shall be res judicata on the question of parental abandonment or unfitness in the adoption proceedings.

SECTION 3. Section 93-23-3, Mississippi Code of 1972, is amended as follows:

93-23-3. As used in this chapter:

(a) "Contestant" means a person, including a parent, who claims a right to custody or visitation rights with respect to a child. In the case of a child born out of wedlock, the father shall not be deemed to be a parent for purposes of this chapter unless he has voluntarily acknowledged paternity in accordance with Section 93-9-28;

(b) "Court" means any court of this state which is competent to hear and decide child custody matters under the laws of this state;

(c) "Custody determination" means a court decision and court orders and instructions providing for the custody of a child, including visitation rights; it does not include a decision relating to child support or any other monetary obligation of any person;

(d) "Custody proceeding" includes proceedings in which a custody determination is one of several issues, such as an action for divorce or separation, and includes child neglect and dependency proceedings;

(e) "Decree" or "custody decree" means a custody determination contained in a judicial decree or order made in a custody proceeding, and includes an initial decree and a modification decree;

(f) "Home state" means the state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as parent, for at least six (6) consecutive months, and in the case of a child less than six (6) months old the state in which the child lived from birth with any of the persons mentioned. Periods of temporary absence of any of the named persons are counted as part of the six-month or other period;

(g) "Initial decree" means the first custody decree concerning a particular child;

(h) "Modification decree" means a custody decree which modifies or replaces a prior decree, whether made by the court which rendered the prior decree or by another court;

(i) "Physical custody" means actual possession and control of a child;

(j) "Person acting as parent" means a person, other than a parent, who has physical custody of a child and who has either been awarded custody by a court or claims a right to custody; and

(k) "State" means any state, territory or possession of the United States, the Commonwealth of Puerto Rico and the District of Columbia.

SECTION 4. This act shall take effect and be in force from and after July 1, 1997.