Rule 417 - Setting Aside an Adoption(a) Motion to Set Aside. A person seeking to set aside a final order of adoption must file a motion to set aside the order within the time limits set by Rule 407(f).(b) Appointment of a GAL. On a party's motion or the court's own initiative, the court may appoint a GAL for the child. If the court grants the motion to set aside, the GAL, if warranted, may file a dependency petition.(c) Initial Hearing. The court must set an initial hearing no later than 10 days after the filing date and advise the parties of the date, time, and location of the initial hearing. At the initial hearing, the court must determine whether notice has been provided, and if so, the court must set a date for an evidentiary hearing no later than 30 days after the initial hearing. The court may set a mediation before that date. The court also must order that the parties exchange information as provided in Rule 406 no later than 15 days before the evidentiary hearing. The court may extend these time limits for good cause.(d) Burden of Proof. The burden is on the person seeking to set aside the adoption to prove the allegations contained in the motion by clear and convincing evidence.(e) Procedure. The court must consider evidence in the form of testimony and documents that have been admitted into evidence under Rule 104(b).(f) Indian Child. After an adoption is final, the parent of an Indian child may withdraw consent to the adoption and petition the court to vacate the adoption decree on the ground that the consent was obtained through fraud or duress under ICWA § 1913. If the court finds that consent was obtained through fraud or duress, the court must vacate the decree and return the Indian child to the parent as soon as practicable. An adoption of an Indian child that has been effective for at least two years may not be invalidated unless otherwise permitted under state law. An Indian parent or custodian also may move to set aside an adoption for reasons other than fraud or duress, pursuant to Rule 407(f).(g) Findings and Orders. The court must make its findings in a signed minute entry or order. The court must advise the parties of their right to appeal and, if court sets the adoption aside, it must enter orders concerning custody of the child. If ICWA applies, the court must make findings and enter orders pursuant to the standards and burdens of proof required under ICWA.Adopted Dec. 8, 2021, effective 7/1/2022.COMMENT TO 2022 AMENDMENT
Proceedings to set aside an adoption should be more formal than other types of juvenile proceedings due to the potential impact on all parties, particularly the child.
The Indian Child Welfare Act contemplates the return of the child to the parent or Indian custodian if the adoption is set aside. The court should return the child in the absence of clear and convincing evidence, including testimony of a qualified expert, that return of the child to the parent or Indian custodian would likely result in serious emotional or physical damage to the child.