Step Parent Adoption in South Carolina: What To Do When The Other Parent Is In Jail Or Cannot Be Found.

The process for step parent adoption in South Carolina can avoid many of the delays and procedural requirements of the adoption statute. Still, there are some pitfalls that you should know about, especially if the other parent is incarcerated or has disappeared.

South Carolina has a sordid history when it comes to adoptions.  For many years our adoption procedures appeared to be little more than selling babies. In the 1980’s we re-wrote and modernized our rules which have since greatly improved the protection of children and the rights of birth parents.

Many of the protections written into our adoption laws do not apply when a person desires to adopt a child with whom he or she is related by blood or marriage. This is most common when a step mom or step dad seeks to adopt their spouse’s child(ren). Sometimes, also,  grandparents or other relatives will adopt their grandchildren, nieces and nephews, etc. In any case, an adoption will require the termination of the parental rights of the other parent. This means that the adopting parent must serve proper notice of the adoption proceedings on the parent whose parental rights he or she seeks to terminate.

When a step parent adoption case is filed in South Carolina, it almost always involves an absent parent who owes a huge arrearage in child support. When this situation presents itself, here are some unique problems that may confront the attorney and the adopting couple:

  1. You don’t know where the other parent can be found. Often times when a person owes a gazillion dollars in past due child support they simply vanish. As child support enforcement is now virtually nationwide, these people simply go to some foreign state, assume a new name and work for cash. Not much of a life, but for them, it beats jail. In this situation the best way to proceed is to serve the the biological parent with the Summons and Complaint by way of publication in a newspaper in the locality of their last know address. The newspaper’s Affidavit of Publication will then serve as service of process for the Summons and Complaint and the case will proceed on the court’s docket.
  2. You know where the biological parent is, but he/she is incarcerated. If the biological parent is incarcerated they are treated by our law almost as if they were incompetent. They must be served with the Summons and Complaint personally. Once they have been served, a judge has the discretion to appoint a guardian to protect his or her interests when the inmate is locked up in South Carolina, but this requirement is mandatory if the inmate is locked up in another state. The responsibility of paying the guardian’s fee will most likely always fall on the adopting parties.
  3. Once served with the pleadings in jail, the other parent now requests a lawyer. Incarcerated people have plenty of time and they sometimes use it file all sorts of things in our local courts. Once something has been filed on a case, our rules of due process require that it be dealt with. If an incarcerated inmate request a lawyer his request will be heard and denied. The right to an attorney only applies when the government is trying to take something from us, such as our life, liberty, children, etc. Private disputes between individuals in our courts do not qualify for the appointment of counsel.
  4. Notice of the final hearing: Regardless of whether or not you have found the biological parent, he or she is still required to “receive” notice of the final hearing to terminate their parental rights. If a guardian has been appointed for the other parent, its simple, the guardian is served. If the other parent cannot be found, and you had originally served them by publication, notice must be provided by leaving a copy of the notice with the Clerk of Court.

If an absent parent is properly served with the adoption proceedings and noticed of the final hearing, and is provided a guardian if the facts require it, the adoption will almost always be successful. More importantly, since all procedures have strictly been followed, the adoption will not be subject to later collateral attack on legal technicalities.

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