Who must consent for an adoption in SC?
Whether you are adopting a stepchild, a grandchild, or a foster child, there are several steps that you must complete before finalizing the adoption – for example, obtaining consent from every person who could later challenge the adoption.
SC law has specific requirements for who must consent to adoption, how they must give their consent, and who must be present when the consent is obtained. Below, I’ll discuss these requirements as well as when consent can be withdrawn.
If you are considering adoption in SC, contact your Myrtle Beach adoption lawyer on the Axelrod team immediately to help ensure that the adoption process goes as smoothly as possible and for help in obtaining the required consent prior to the adoption hearing.
Who Must Consent for an Adoption in SC?
SC Code Section 63-9-310 lists the persons who must give consent or relinquishment before an adoption can be finalized, including the adoptee if they are over 14 years old, the parents of the child, the child’s guardian, and the child placement agency.
Does the Child Have to Consent to Their Adoption?
The child must consent to the adoption if they over 14 years of age unless they are incapacitated, or the court finds that it is not in the child’s best interests to consent:
(A) Consent or relinquishment for the purpose of adoption is required of the following persons:
(1) the adoptee, if over fourteen years of age, except where the court finds that the adoptee does not have the mental capacity to give consent, or that the best interests of the adoptee are served by not requiring consent…
Do the Biological Parents Have to Consent to an Adoption?
The biological parents must consent to the adoption in some circumstances but not others. For example, if the parents were married when the child was born, both parents must consent to the adoption unless they are deceased or their parental rights have been terminated:
(2) the parents or surviving parent of a child conceived or born during the marriage of the parents…
If the child’s parents were not married when the child was born, the mother must consent:
(3) the mother of a child born when the mother was not married…
If the parents were not married when the child was born and the child is placed with the adoptive parents more than six months after the child’s birth, the father’s consent is required “only if the father has maintained substantial and continuous or repeated contact with the child,” which could mean:
- The father paid a reasonable amount of child support based on his financial ability; and
- The father made at least monthly visits to the child when physically and financially able to do so or regularly communicated with the child.
If the parents were not married when the child was born and the child is placed with the adoptive parents less than six months after the child’s birth, the father’s consent is required if:
(a) the father openly lived with the child or the child’s mother for a continuous period of six months immediately preceding the placement of the child for adoption, and the father openly held himself out to be the father of the child during the six months period; or
(b) the father paid a fair and reasonable sum, based on the father’s financial ability, for the support of the child or for expenses incurred in connection with the mother’s pregnancy or with the birth of the child, including, but not limited to, medical, hospital, and nursing expenses.
Does the Child’s Guardian Need to Consent to the Adoption?
If both parents are deceased or if their parental rights have been terminated, the consent of the child’s guardian is required for adoption:
(B) Consent or relinquishment for the purpose of adoption is required of the legal guardian, child placing agency, or legal custodian of the child if authority to execute a consent or relinquishment has been vested legally in the agency or person and:
(1) both the parents of the child are deceased; or
(2) the parental rights of both the parents have been judicially terminated.
Does a Child Placement Agency Need to Consent to the Adoption?
If a child has been relinquished to a child placement agency for adoption, that agency or person must consent to the adoption:
(C) Consent is required of the child placing agency or person facilitating the placement of the child for adoption if the child has been relinquished for adoption to the agency or person.
Does Consent and Relinquishment for a SC Adoption Have to be Done a Certain Way?
SC Code Section 63-9-330 requires that consent and relinquishment be done in a sworn document that includes:
(1) the permanent address of the person or agency making the sworn written statement;
(2) the date, time, and place of the signing of the statement;
(3) the date of birth, race, and sex of the adoptee and any names by which the adoptee has been known;
(4) the relationship of the adoptee to the person or agency giving consent or relinquishment;
(5) the name and address of the adoptee’s mother or father;
(6) that the consent or relinquishment by the person or agency forfeits all rights and obligations of the person or agency with respect to the named adoptee, including any future child support obligation. Giving consent or relinquishment does not relieve a person from the obligation to pay a child support arrearage unless approved by the court;
(7) that consent or relinquishment once given must not be withdrawn except by order of the court upon a finding that it is in the best interests of the child, and that the consent or relinquishment was not given voluntarily or was obtained under duress or through coercion; and that the entry of the final decree of adoption renders any consent or relinquishment irrevocable;
(8) that the person or agency giving the consent or relinquishment understands that consent or relinquishment must not be given if psychological or legal advice, guidance, or counseling is needed or desired and that none is needed or desired;
(9) that the person or agency giving the consent or relinquishment waives further notice of the adoption proceedings, unless the proceedings are contested by another person or agency;
(10) that the person or agency giving the consent or relinquishment is doing so voluntarily, and the consent or relinquishment is not being obtained under duress or through coercion; and
(11) that the person or agency giving the consent or relinquishment has received a copy of the document.
Who Can Obtain a Consent and Relinquishment for a SC Adoption?
Although anyone can obtain the consent and relinquishment, SC Code Section 63-9-340 says that it must be signed in the presence of two witnesses, at least one of whom must be:
(1) a judge of any family court in this State;
(2) an attorney licensed to practice law in South Carolina who does not represent the prospective adoption petitioners; or
(3) a person certified by the State Department of Social Services, pursuant to Section 63-9-360, to obtain consents or relinquishments…
There are additional requirements when the consent or relinquishment is obtained outside of SC.
Each of the witnesses must also attach a certification to the document that affirms that the document was discussed with the person who is relinquishing their child and that there was no coercion, and a copy of the document must be given to the person who is providing consent:
(B) The persons who witness the signing of the sworn document, as provided for in subsection (A) of this section shall attach to the document written certification signed by each witness that before the signing of the document, the provisions of the document were discussed with the person giving consent or relinquishment, and that based on this discussion, it is each witness’ opinion that consent or relinquishment is being given voluntarily and that it is not being obtained under duress or through coercion.
(C) A copy of the document must be delivered to the person giving the consent or relinquishment at the time of the signing of the document.
Can You Withdraw Consent to an Adoption?
SC Code Section 63-9-350 states that you cannot withdraw consent to an adoption unless you prove to the court that:
- Withdrawing consent is not in the child’s best interests; and
- The consent was given involuntarily or under duress.
Once the final adoption decree is entered, consent is irrevocable:
Withdrawal of any consent or relinquishment is not permitted except by order of the court after notice and opportunity to be heard is given to all persons concerned, and except when the court finds that the withdrawal is in the best interests of the child and that the consent or relinquishment was not given voluntarily or was obtained under duress or through coercion. Any person attempting to withdraw consent or relinquishment shall file the reasons for withdrawal with the family court. The entry of the final decree of adoption renders any consent or relinquishment irrevocable.
Adoption can be a confusing but rewarding process, and it is critical that all SC adoption laws are followed so that the process goes smoothly – including obtaining consent from the appropriate parties. Your adoption attorney on the Axelrod team can help you to obtain consent for your adoption when necessary and will be there with you at every step of the adoption proceedings.