Adoption is the process by which someone who is not the biological parent of a child becomes the legal parent of a child. Now that South Carolina recognizes gay marriages, adoption proceedings can occur that give a child two mothers or two fathers. There are no reported cases in South Carolina authorizing an adoption that provides a child three legal parents.
Any interested person may adopt a child. Often foster parents adopt children when the South Carolina Department of Social Services has terminated the parental rights of parents whose children are in their care. Other times, parents or siblings of one parent may seek to adopt a child when neither of the child’s parents are fit or are interested in raising the child. Finally, many adoptions involve stepparents who wish to take on the rights and responsibilities of parenthood.
Often, for a child to be eligible for adoption, one must first terminate the parental rights of one or both of the child’s parents. If a couple desires to adopt a child, then the parental rights of both biological parents need to be terminated. Termination is not required if a biological parent is deceased or if the biological father never developed parental rights.
A biological parent’s death terminates that parent’s parental rights. Sometimes parental rights will have been terminated in a prior court case.
For children born out of wedlock, the biological father needs to take certain steps to develop parental rights before adoption proceedings begin. If those steps are not taken, and this is proven to the court, then the father’s parental rights do not need to be terminated before an adoption can proceed. If there has been an adjudication of paternity, custody, visitation or child support involving the father, or if the father has provided support for or visited with the child, then his parental rights will need to be terminated before the child is eligible for adoption. This would not be the case if the father is seeking to have his spouse adopt the child.
A parent may also voluntarily relinquish his or her parental rights. There are forms that need to be filled out to accomplish this, and strict compliance with the statutory rules regarding relinquishment need to be followed or the relinquishment is subject to later challenge. More than a few adoptions have failed because a relinquishment was handled incorrectly and the biological parent then withdrew consent.
When parental rights have attached (as they always do for every mother, every father when the child is born in wedlock, and many fathers of children who are not born in wedlock) and have not been terminated or voluntarily relinquished, parental rights must be terminated via contested litigation before an adoption can be granted. To terminate parental rights (TPR) over a biological parent’s objection, one must demonstrate by clear and convincing evidence that there is a statutory ground to terminate the parental rights and that this termination is in the child’s best interests. Bringing your case to an adoption law firm before adoption proceedings begin can help you identify missing parts of your case and improve your long-term success. While there is no requirement that the adoption request be made at the same time as the termination request, obtaining a finding of best interests is more likely when someone is ready to adopt. Thus, when a prospective adoptive parent needs to terminate someone’s parental rights to adopt, the TPR and adoption case are always brought together.
In any adoption case involving a minor child, a guardian ad litem must be appointed for the child. A child who has reached the age of fourteen must consent to the adoption before any adoption proceedings can begin. The court will have a hearing on the adoption request (sometimes in conjunction with the TPR request) and will determine whether the adoption is in the minor child’s best interests. The court will hear from the guardian at this hearing, the biological parent (if that parent will remain the legal parent after that hearing), and prospective adoptive parent(s). The court may also hear from witnesses who contest the adoption if the adoption proceedings are being challenged. In such contested adoptions, the court will also hear from witnesses who support or bolster the adoption request. In contested adoptions, having an experienced adoption attorney can help you navigate this conflict and present your strongest case.
If parental rights need to be terminated before an adoption can be granted, then the court will also determine whether a statutory ground exists to terminate parental rights and whether the termination of parental rights is in the minor child’s best interests. If the court finds no statutory ground exists, then it cannot grant the adoption.
When it is a relative by blood or marriage who hopes to adopt the child, there are streamlined procedures for the adoption. When someone unrelated to the child seeks to adopt, there are additional procedures to follow, including pre-placement and post-placement home studies that need to be conducted by a licensed social worker.
If the adoption is granted, then the adoptive parent has all the rights and responsibilities of a natural parent. There have been cases in which an adoptive parent divorces a natural parent and ends up with custody. After the adoption is granted, one can obtain an amended birth certificate for the child that will reflect the adoptive parent as the child’s parent.
Adoptions are procedurally complex and can be factually complicated. There is an added level of complexity when a TPR needs to accompany the adoption or when a non-relative seeks to adopt. An adoption attorney experienced in adoption proceedings is vital to insuring that the adoption proceeds smoothly and successfully. If you would like to retain Gregory Forman as your adoption lawyer, please contact him here.
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