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Adoption

CHARLESTON ADOPTION ATTORNEY JAY MCMILLIAN

WHAT ARE THE LEGAL EFFECTS OF ADOPTING SOMEONE IN SOUTH CAROLINA

Adoption is the creation of a new legal relationship between the adopted child and the adoptive parents. As simple as the concept is, it does deem repeating . . . adoptive parents obtain all rights and privileges that would normally be reserved to biological parents. The same is true for adoptive children, they assume a new legal status as being considered natural children of the adoptive parents. This is especially important for inheritance purposes. The obligations of the biological parents to support the child ends when they relinquish their parental rights or consent to the adoption.

WHO CAN BE ADOPTED IN SOUTH CAROLINA

Any child present in the State of South Carolina at the time a petition for adoption is filed is eligible to be adopted, regardless of where the child was born. In addition, the child of a spouse or child related by blood or marriage can also be adopted in South Carolina. Finally, any adult can also be adopted with the adult adoptee's consent or the consent of his/her guardian (if mentally incompetent), and the consent of the adopting parent's spouse, if any.

WHO MAY ADOPT IN SOUTH CAROLINA

Any South Carolina resident may adopt in South Carolina. There are circumstances where an out-of-state party may be allowed to adopt in a South Carolina Family Court as well. Such circumstances would include:

  1. Child is being placed with a biological relative or relative by marriage
  2. Child's best interest served by an out of state adoption
  3. Birth parents have chosen an out of state party to adopt
  4. Adoptive parents participated actively in birth of the child
  5. One of the parents is a member of the military stationed in South Carolina
  6. Child is a special needs child and will receive services out of state
  7. Child has been in foster care for at least 6 months with no potential South Carolina residents being identified as prospective adoptive parents
  8. Notoriety of the child or the child's family dictate it would be in best interest of the child to leave the state

WHO MUST CONSENT TO AN ADOPTION OF A CHILD IN SOUTH CAROLINA

The answer to this question wholly depends upon the type of relationship, or lack thereof, that may exist between the biological parents.

  1. Biological Parents are Married: Both parents must consent if child was conceived or born during the marriage. If one parent is deceased then the surviving parent can consent alone
  1. Biological Parents are Unmarried / Never Married: an unmarried biological mother must consent to an adoption.

The unmarried biological father must also consent if the child is older than 6 months and the father is paying child support and visiting and / or communicating with the child on a monthly basis or initiating communication when visits are not possible. If the child is younger than 6 months of age, the biological unmarried father must consent if he lived with the mother for 6 months immediately preceding the placement for adoption and held himself out as the father OR he paid support, medical expenses, or birth expenses of the child.

  1. If the child is a ward of the state and in foster care, then the appropriate state agency (Department of Social Services – DSS) will need to consent to an adoption
  1. If the biological mother is a minor and she is over the age of 14, the court may still require consent unless the minor is determined to lack the mental capacity to consent or best interest of child would be served by not requiring consent
  1. Consent of a legal guardian is required if both biological parents are deceased, or if the parental rights of the biological parents were terminated prior to placement with a legal guardian

There are a few other factors that bear mentioning when discussing consent to an adoption. First, any consent obtained after the birth of the child will be upheld. South Carolina law is actually unclear on pre-birth consents. Secondly, it is possible but extremely difficult to revoke a consent once it is given. Usually, the only circumstances where a Family Court will allow a consent to be revoked is if the consent was obtained through duress or coercion. Finally, South Carolina law forbids the payment of compensation to obtain a consent. This is not to be confused with payments made by the adoptive parents for the expenses of the biological mother (medical expenses, living expenses, birth expenses). These are legitimate payments.

HOW LONG WILL IT TAKE TO ADOPT A CHILD IN A SOUTH CAROLINA FAMILY COURT

There are several important deadlines in the South Carolina adoption statutes that must strictly adhered to in order to effectuate a successful adoption.

A petition for adoption in South Carolina must be filed within 60 days from the date the child is placed in the home with the proposed adoptive parents. The petition for adoption must specifically include:

  1. All required consents and relinquishments
  2. Pre-Placement report
  3. Background investigative report
  4. Statement by adoptive parents of all related payments to the adoption made in the past 5 years and to be made in the future

A final hearing on an adoption can't be scheduled until at least 90 days after the filing of the adoption petition. Also, Guardian Ad Litem must be appointed to do a post-petition investigation and those findings must be present before the Court for the final hearing.

Any biological parent who has not consented must be put on notice of the adoption petition and hearing, unless the biological parent has committed incest or criminal sexual conduct upon the child.

Upon the completion of a successful final adoption hearing, the Family Court will order the issuance of a new birth certificate. All adoption proceedings in a South Carolina Family Court are sealed absent a showing of good cause to open.

HOW DO I ADOPT A CHILD OF MY SPOUSE FROM A PREVIOUS MARRIAGE IN SOUTH CAROLINA

Adoption of a step-child of a spouse or a child related by blood or marriage is streamlined and doesn't involve all of the formalities of a full adoption listed above. The process will still involve the filing of an adoption petition and adherence to the timelines outlined above. However, the process is streamlined in the consents required and the pre-hearing investigations required, though a biological parent most likely needs to be served notice that the child is being adopted by the step parent.

DO I NEED AN ATTORNEY TO ADOPT A CHILD IN SOUTH CAROLINA

It is critical to have an attorney assist you in an adoption in South Carolina. This is one area of Family Law where one missed deadline, or one missed report or an ineffective consent is fatal to the adoption petition. It is paramount to have an attorney in your corner to guide you through this process. Please give me a call and allow me to provide the expertise and compassion needed so that your adoption is a success and you can go about creating the loving home that all children deserve.

The McMillian Law Firm

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Attorney Jay McMillian operates a solo practice with an emphasis on two core principles. First, to provide competent legal advice in the areas of Auto Accident and Personal Injury Law to the people he is proudest to serve, the people of the South Carolina Low Country. Second, to provide the most personal and intimate service to each and every client and give them the attention and compassion that they deserve while going through the stress and strain of negotiating or litigating an injury claim. If you live in Charleston, Summerville, Mount Pleasant, Goose Creek, James Island, Walterboro, Moncks Corner, and you or someone you love has been injured by the negligence of another, please call Jay at The McMillian Law Firm today.

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