Husband: Presumptive Legal Father

Posted on January 27, 2012 by Russell W. Hall III

“In South Carolina, there is a common law presumption that a child born during lawful wedlock is a child of the marriage.”  Fisher v. Tucker, 388 S.C. 388, 697 S.E.2d 548 (S.C. 2010).

“No judgment of divorce from the bonds of matrimony shall render illegitimate the child begotten of the marriage.” Section 20-3-200 of the South Carolina Code of Laws, as amended.

No matter who is the biological father the husband is the presumed father if the mother is married at conception and birth or birth. The best practice when helping petitioners adopt a child of a married couple is to have the husband sign a consent and relinquishment or name him in the adoption petition and seek to terminate his rights under the termination of parental rights (TPR) statutes.

One of the TPR statutes covers this specific situation if the presumed father(husband) is not the biological father(sperm donor); " The family court may order the termination of parental rights upon a finding of one or more of the following grounds and a finding that termination is in the best interest of the child:...The presumptive legal father is not the biological father of the child, and the welfare of the child can best be served by termination of the parental rights of the presumptive legal father.” Section 63-7-2570(5) of the South Carolina Code of Law, as amened.

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TPR: Best Interest of the Child

Posted on January 20, 2012 by Russell W. Hall III

In my TPR: Clear and Convincing Evidence, I explained the burden required to terminate a parent's rights. Even if you can overcome that burden, you still need to show that the termination is in the best interest of the child. Trying to define the best interest of the child is like herding cats; I try to figure it out on a case-by-case basis, and I will not attempt to define it in this post.

However, I have noticed as I try cases that the facts I used to overcome the clear and convincing evidence burden are  often enough to show that the termination of parental rights is in the best interest of the child. That coupled with the fact that the folks that are asking for the termination of a parent's rights  generally already have physical custody of the child and are acting as the parent equals a pretty clear decision that termination of parental rights is in the child's best interest. Then again that is only one of many cats that needs to be herded.

James Fletcher Thompson, Esq., penned a chapter on "Best Interest of the Child" standard in his book South Carolina Adoption Law and Practice: A Guide for Attorneys, Certified Investigators, and Families. This book  would be a good starting point for you in understanding the dynamics we call "Best Interest of the Child." Here is a brief review and ordering information.

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TPR: Clear and Convincing Evidence

Posted on January 9, 2012 by Russell W. Hall III

Two of the most common grounds I use to terminate the parental rights of an individual when my clients are seeking to adopt a child are willful failure to support the child and willful failure to visit with the child.

Though I may technically have the grounds to terminate the parent's rights, I have to show the judge by clear and convincing evidence that the parent has willfully failed to visit or support the child. What is “clear and convincing evidence?” It is evidence that satisfies the judge that there is a high degree of probability that the elements for the ground to terminate the parental rights of the biological parent are satisfied. 

This burden is fairly easy to prove if the biological parent does not show up for court because my client is the only one presenting testimony and evidence. If I anticipate that the biological parent will show up to court, I ensure that I have enough evidence to overcome the burden of proof by clear and convincing evidence.

The most difficult element I have to show in both grounds is the element "willful." I have to keep this in mind when preparing for the trial. It is fairly easy to show whether or not the biological parent supported the child or not. What is more difficult to prove by clear and convincing evidence is whether or not the biological parent willfully failed to support the child. A couple of examples of the facts that helped prove beyond clear and convincing  evidence that the biological parent willfully failed to support the child can be found at this link. This same burden of proof of course also applies to willful failure to visit.

The grounds for TPR are found in Section 63-7-2570 of South Carolina Code of Laws, as amended.

 

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