Charleston Family Law Attorneys | What Matters in Adoption Cases: #1, Notice to Necessary Persons
Within the past year, newspapers in the Charleston area were full of stories about a prolonged custody and adoption battle between an adoptive couple living in Charleston County and a biological father living in Oklahoma. While that case ultimately was decided by the US Supreme Court, and included issues of whether the child was a member of an Indian tribe, issues of notice were also argued. In any adoption case, the issue of notice to the people who are necessary to the case is critical to a full and final resolution.
Our legislature provides us with a statute for our guidance: Sec. 63-9-730, S.C. Code of Laws Ann., takes care to outline the steps required for a successful adoption. Before looking at those steps, it is important to consider cultural changes which have contributed to the difficulty of identifying and locating biological fathers:
(1) It is not always easy to know the identity of the biological father.
It has become “less unusual” (or “more and more common”) for a woman to have sexual relations with more than one man in a close, limited period of time, being the window of opportunity for conception. In such circumstances, DNA testing may be necessary after the baby is born, in order to positively identify the father, and to thereby trigger the requirements of notice to the supposed biological father.
(2) There is an ever-present reluctance on the part of some pregnant women to identify the man (or men) who may have fathered her child.
Such women will typically describe single encounters, such as at a party, with an unknown man or with a man for whom she never got the last name, or an assault, or similar circumstances. (Of course, some such claims may be accurate but the pregnant woman may, in fact, actually know the man who fathered the child). Every effort must be made to identify the biological father, and the pregnant woman must be helped to understand that failure to identify this person could jeopardize the child’s adoption in the future.
(3) Frequent moves, and across state lines, contribute to lingering difficulties in locating biological fathers.
There are tools available to Charleston family law attorneys to deal with these difficulties.
Why does this matter?
Notice of an adoption request (and of a termination of parental rights request) must be given to certain people, and those people are as follows (reference is to the statute on notice as cited above):
A. Any person who has been adjudicated by a court in this State to be the father of the child;
B. Any person or agency required to give consent or relinquishment pursuant to statute but whose consent cannot be obtained (See Sec. 63-9-310, S.C. Code of Laws );
C. The father of the child, whose consent is not required under Section 63-9-310 (A)(4)or(5) – most easily described as a non-supportive birth parent;
D. Any person who is recorded on the child’s birth certificate as the child’s father;
E. Any person who is openly living with the child OR the child’s mother, OR both, at the time the adoption proceeding is initiated, and who is holding himself out to be the child’s father;
F. Any person who has been identified as the child’s father by the child’s mother in a sworn, written statement;
G. Any person from whom consent or relinquishment is NOT required under Section 63-9-320 (A)(2) – most easily described as biological fathers (in this context) who have already had their parental rights terminated, voluntarily or involuntarily; biological fathers who are incompetent to give their consent; and biological fathers who achieved the pregnancy at issue via criminal conduct.
The purpose of outlining these elements of notice is to provide an introduction to the complex nature of the adoption statutes. This article deals only with deciphering who is required to be provided with notice of an adoption; there are other statutes which deal with consent to adoption. The subject matter of adoption is fraught with opportunities for stumbling and oversight. If you have an interest in adopting a child, or in placing a child for adoption, make certain that you consult with experienced Charleston family law attorneys.