If you want to protect your parental rights as a father you need to register at the Responsible Father Registry.
Please read my blog post at http://www.southcarolinaadoptionlaw.com/2009/12/articles/biological-father-1/john-doe-rip-responsible-father-registry-is-law-1-januarly-2010/ and Responsible Father Registry Q & A to help you more fully understand the Responsible Father Registry.
The text below is extracted from www.justia.com and gives a great summary of a U.S. Supreme Court Case involving unwed fathers' rights and the putative father registry. After reading this case, I doubt the new South Carolina Responsible Father Registry will have any serious U.S. Constitutional challenges.
U.S. Supreme Court
Lehr v. Robertson, 463 U.S. 248 (1983)
Lehr v. Robertson
No. 81-1756
Argued December 7, 1982
Decided June 27, 1983
463 U.S. 248
Syllabus
Appellant is the putative father of a child born out of wedlock. Appellee mother of the child married another man (also an appellee) after the child was born. Subsequently, when the child was over two years old, appellees filed an adoption petition in the Ulster County, N.Y. Family Court, which entered an order of adoption. Appellant never supported the child or offered to marry appellee mother, did not enter his name in New York's "putative father registry," which would have entitled him to notice of the adoption proceeding, and was not in any of the classes of putative fathers who are entitled under New York law to receive notice of adoption proceedings. After the adoption proceeding was commenced, appellant filed a paternity petition in the Westchester County, N.Y. Family Court. Appellant learned of the pending adoption proceeding several months later. Shortly thereafter, his attorney sought a stay of the adoption proceeding pending the determination of the paternity action, but by that time the Ulster County Family Court had entered the adoption order. Appellant filed a petition to vacate the adoption order on the ground that it was obtained in violation of his rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The Ulster County Family Court denied the petition, and both the Appellate Division of the New York Supreme Court and the New York Court of Appeals affirmed.
Held:
1. Appellant's rights under the Due Process Clause were not violated.
(a) Where an unwed father demonstrates a full commitment to the responsibilities of parenthood by "com[ing] forward to participate in the rearing of his child," Caban v. Mohammed, 441 U. S. 380, 441 U. S. 392, his interest in personal contact with his child acquires substantial protection under the Due Process Clause. But the mere existence of a biological link does not merit equivalent protection. If the natural father fails to grasp the opportunity to develop a relationship with his child, the Constitution will not automatically compel a State to listen to his opinion of where the child's best interests lie.
(b) Here, New York has adequately protected appellant's inchoate interest in assuming a responsible role in the future of his child. Under New York's special statutory scheme, the right to receive notice was completely within appellant's control. By mailing a postcard to the putative father registry, he could have guaranteed that he would receive notice of any adoption proceedings. The State's conclusion that a more open-ended notice requirement would merely complicate the adoption process, threaten the privacy interests of unwed mothers, create the risk of unnecessary controversy, and impair the desired finality of adoption decrees cannot be characterized as arbitrary. The Constitution does not require either the trial judge or a litigant to give special notice to nonparties who are presumptively capable of asserting and protecting their own rights.
2. Nor were appellant's rights under the Equal Protection Clause violated. Because he has never established a substantial relationship with his child, the New York statutes at issue did not operate to deny him equal protection. Cf. Quilloin v. Walcott, 434 U. S. 246. Appellee mother had a continuous custodial responsibility for the child, whereas appellant never established any custodial, personal, or financial relationship with the child. In such circumstances, the Equal Protection Clause does not prevent a State from according the two parents different legal rights. Caban v. Mohammed, supra, distinguished.
54 N.Y.2d 417, 430 N.E.2d 896, affirmed.
STEVENS, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. WHITE, J., filed a dissenting opinion, in which MARSHALL and BLACKMUN, JJ., joined.
Link to the Full Text of Case: http://supreme.justia.com/us/463/248/case.html
Though the statute does not require a search of the Responsible Father Registry until 1 July 2010, it was my belief that attorneys would be able to search the registry starting 1 January 2010. This would have been helpful because it would have immediately eliminated the need to serve John Doe in adoptions case.
I spoke with the general counsel of the South Carolina Department of Social Services concerning whether or not we could immediately start searching the registry. It is my understanding from my conversation with her that we will not be able to access the registry until 1 July 2010. John Doe lives a few more months.
Please read my blog post on the Responsible Father Registry and my blog post of the change in the notice requirement implemented in the Responsible Fathers Registry for a more full picture of how the registry law is going to work.
The updated tax credit for 2010 is $12,170.00 and will sunset at the end of 2010 to $6,000.00 for special needs child adoptions and $5,000.00 for all other qualified adoptions according to William Perez in his blog.
Please view my earlier blog for a full explanation of the adoption tax credit.
Please contact your congressman and senators and ask each of them to keep the tax credit at the present level and not to revert back to the pre-2001 level. You can find your congressman's and senators' contact information at http://www.congress.org/congressorg/directory/congdir.tt.
Adult Adoptions are allowed in South Carolina under Section 63-9-1120 of its Code of Laws, as amended. "An adult person may be adopted by another adult person with the consent of the person to be adopted or his guardian and with the consent of the spouse, if any, of a sole adoptive parent, filed in writing with the court...A petition for the adoption must be filed with the family court in the county where the adoptive parents reside."
The Law Office of David H. Baum out of California answers a few of the questions you may have about adult adoptions at http://www.adoptlaw.com/faqadult.html. They questions and answers are general and substantially conform to South Carolina law. If you have any further questions, you can contact me via e-mail or phone. My e-mail address is lawyerhall@russellslawoffice.com and my phone number is 843-267-0906.
Yes, my office does handle adult adoptions.
In an adoption, the adoptive parents may need to obtain a consent and relinquishment from the biological mother and father. To be valid, South Carolina Code of Laws Section 63-9-340 provides that the consent and relinquishment "must be signed in the presence of two witnesses one of whom must be on of the following:
The guidelines for obtaining a certificate of a foreign birth and domesticating a foreign adoption can be found at the South Carolina Judicial website. These guidelines will help you determine if you wish to proceed on your own or you wish to have the help of an attorney in domesticating your foreign adoption.
South Carolina law provides that "the petitioner [to an adoption] may employ the use of fictitious names where necessary to avoid disclosure of identities of parties or persons. In addition, all adoptions are sealed in South Carolina. These two statutory provision, along with discretion on your part, will help you remain anonymous throughout the adoption process.
It is up to you to determine if you want to remain anonymous or not. The law helps you remain anonymous; is does not require you to remain anonymous.
If you chose, you may be part of the pregnancy and birth of the child. In some instances, especially with older children, you may wish to allow the birth parents to visit with the child and be involved in the child's life. The level of involvement by you in the birth and by the birth parents in child's life after the adoption is completely up to you. The level of involvement by you and the birth parents can range from no involvement (complete anonymity) to full involvement or something in between; the chose is yours.
Any child present within this State at the time the petition for adoption is filed, irrespective of place of birth or place of residence, may be adopted.
South Carolina law provides that, "[b]efore any hearing is held on the adoption or any matter related to the adoption, the court shall appoint a guardain ad litem for the [child being adopted], and the [child being adopted] must be served with a copy of the pleading. However, if the [child being adopted] is fourteen years of age or younger, the child may be served by service upon his guardian ad litem or other person with whom he resides."
The guardian ad litem, generally an attorney in an adoption action, is appointed by the court to make a recommendation to the court concerning whether or not the child should be adopted. The guardian ad litem performs a thorough investigation to included reviewing the adoptive parents' file; interviewing the adoptive parents, the child, and any other person the guardian ad litem deems necessary to interview; and any other investigation the guardian ad litem may deem necessary. This investigation helps him make his recommendation.
The standard the guardian ad litem uses in adoption cases is the best interest of the child standard. After the guardian ad litem has finished his investigation, he will generally reports his finding to the adoptive parents' attorney. If all is well, the adoptive parents' attorney will request a final hearing. If the guardian ad litem has concerns, the adoptive parents' attorney will work with the adoptive parents and the guardian ad litem to address the concerns.
If the adoptive parents have a positive home study and if the adoption is not contested, the guardian ad litem generally does not have any concerns. Of course, you need to remember that the guardian ad litem represents the child. Through his investigation he is trying to determine if the adoptive parents adopting the child is in the child's best interest; he will make his recommendation to the court accordingly.
Section 63-9-60 of the South Carolina Code of Laws provides that any South Carolina resident may petition the court to adopt a child.
Placement of children for adoption pursuant to this article is limited to South Carolina residents with exceptions being made in the following circumstances only:
(a) the child is a special needs child, as defined by Section 63-9-30 (Please see the definition below in "Continue Reading");
(b) there has been public notoriety concerning the child or child's family, and the best interests of the child would be served by placement outside this State;
(c) the child is to be placed for adoption with a relative related biologically or by marriage;
(d) at least on of the adoptive parents is in the military service stationed in South Carolina;
(e) there are unusual or exceptional circumstances such that the best interests of the child would be served by placement with or adoption by nonresidents of this State; or
(f) the child has been in foster care for at least six months after having been legally freed for adoption and no South Carolina resident has been identified as a prospective adoptive home.
Interstate adoptions are much more complex than an intrastate adoption; please move forward with great care if you are adopting interstate. If the child fits into subsection (a)-(d) and (f) above, the interstate hurtles are much easier to leap because these subsections more clearly define the category in which the child needs to fit to be considered an exception to the rule limiting adoption to South Carolina residents.
If you are trying to work with subsection (e) which is much more ambiguous than the rest, proceed with caution. Though you may ultimately show the court that the circumstances are unusual or exceptional and that the best interest of the child would be served by placement with or adoption by nonresident of this State, the financial and emotion cost to do so could be great.
The Courts have determined that the selection of the adoptive parents by the biological parent or parents is an unusual and exceptional circumstance. Even under this circumstance, I advise you to proceed with caution because you may need the mother to testify that she in fact selected the adoptive parents. The problem arises when you do need the biological mother to testify and she has changed her mind and does not want to give her child up for adoption. Though the biological mother in unable to withdrawal her consent and relinquishment without an order from the court, she can refuses to testify or testify that she did not pick the adoptive parents. If this is the case, then the Court will probably rule that there is no unusual and exceptional circumstances; this leaves the adoptive parents stuck in South Carolina with a child that they are unable to leave the state with. It essentially forces the adoptive parents to relinquish custody of the child or fight a battle that is not winnable because the financial and emotional burden is to great and the outcome so uncertain.
Continue Reading...The South Carolina Children's Code has moved to its new home in Title 63; the South Carolina Adoption Act's new home is in Chapter 9 of Title 63. Because the South Carolina Children's Code has moved from Title 20 to Title 63, the South Carolina Judicial Department has provided a conversion table to help practitioners and laymen alike maneuver between the old code sections and the new code sections; this conversion table is very useful to those who are researching pre-conversion case law.
Section 63-9-510 of the South Carolina Code of Laws provides that the adoptive parents have temporary custody of the adoptee once they receive the adoptee into their home and a petition for adoption has been filed.
Four requirements of third-party adoptions are eliminated or waived by Section 63-9-1110 of South Carolina Code of Laws for step-parent adoptions; these eliminations and waivers are subject to the discretion of the court.
This year seems to be the year of tax credits; this post is made up almost exclusively of William Perez's discussion on the adoption tax credit.
Tax credit of up to [$12,150 in 2009] for adopting a child
By William Perez, About.com
You qualify for the adoption tax credit if you adopted a child and paid out-of-pocket expenses relating to the adoption. The adoption credit is calculated on Form 8839 Qualified Adoption Expenses (PDF). You may claim an adoption credit of up to $12,150 (for tax year 2009) per eligible child.
The credit is reduced based your modified adjusted gross income. The IRS provides a worksheet for figuring your modified adjusted gross income for the adoption credit in the Instructions for Line 8 of Form 8839. Any income excluded from tax using the Foreign Earned Income Exclusion must be added back for the purposes of determining the phase-out range for the adoption credit.
To be eligible for the adoption credit, you must:
Eligible Children include:
Qualified Adoption Expenses are calculated by:
Adoption expenses include any and all costs directly relating to your adoption and that are reasonable and necessary for your adoption. Expenses include adoption fees, legal fees, court costs, and travel expenses.
Taxpayers who adopt a special needs child can claim the full amount of the adoption credit without regard to the actual expenses paid in the year the adoption becomes final.
Eligible expenses must be "directly related" to the adoption of an eligible child. This may include adoption fees, legal fees, and court costs. Expenses for a failed adoption might qualify for the credit if followed by a successful adoption, but the two adoption efforts would be considered as one adoption and subject to the dollar limit per eligible child. The editors of JK Lasser's Your Income Tax advise:
"Do not include expenses paid or reimbursed by your employer or any other person or organization. You may not claim a credit for the costs of a surrogate parenting arrangement or for adopting your spouse's child." (page 469)
What year you can claim the adoption credit depends on when the adoption was finalized and whether the adopted child is a US citizen, resident alien, or foreign national.
If the child is a US citizen or resident alien, then you take the adoption credit in the following order:
For example, you adopted a child in 2007, but you paid adoption expenses in 2006, 2007, and 2008. Your 2006 expenses are taken on your 2007 tax return (they must be delayed by one year because the adoption was not final). Your 2007 expenses are taken on your 2007 tax return (because they occurred in the same year as the adoption became final). You take your 2008 expenses on your 2008 tax return. In this example, your 2007 adoption expenses include both your 2006 and your 2007 expenses.
If the child is a foreign national, then you take the adoption credit only in the year when the adoption becomes final. Any expenses paid in the year after the adoption is finalized, you can take a credit for those expenses in the year that you paid them.
If your adopted child does not yet have a Social Security Number, you must apply for an Adoption Tax ID Number (ATIN) in order for you to begin claiming your adopted child as a dependent. The IRS provides comprehensive information on the Adoption Taxpayer Identification Number.
The maximum dollar amount you can claim for the adoption tax credit is limited by actual expenses you paid, by the phase out range for income, and by the interaction of the adoption credit with the foreign tax credit and the alternative minimum tax.
Any adoption credit in excess of your tax liability can be carried forward to the next tax year. Excess adoption credits can be carried-forward for five years and is used up on a first-in, first-out basis. The IRS provides a Credit Carryforward Worksheet in the Instructions for Form 8839.
"The legal rules on the timing of consent are ultimately a compromise between the interest in protecting biological mothers from making hasty or ill-informed decisions at a time of great physical and emotional stress, and the interest in expediting the adoption for newborns."
Joan Heifetz Hollinger
South Carolina does not have a waiting period before a consent and relinquishment (hereafter "consent") becomes effective; the consent is effective immediately and cannot be withdrawn without an order from the court.
Under South Carolina Law, the biological parent wishing to withdraw her consent must show that the withdrawal is in the best interest of the child and that the consent was not given voluntarily or was obtained under duress or through coercion. This post will focus on the voluntariness of the consent.
In McCann v. Doe, the South Carolina Supreme Court examines a withdrawal of a mother's consent. After the Court recites the facts, it analyzes the voluntariness of the consent and concludes the consent was not given voluntarily.
The Court gives the definition of duress as "'a condition of mind produced by improper external pressure or influence that practically destroys the free agency of a party and causes him to do an act or form a contract not of his own volition. '" It than proceeds to put emphasis on "emotional stressors" as it determines whether the consent was entered into voluntarily.
The dissenting opinion with which I agree states:
The majority concludes that the evidence showed McCann's "emotional stressors and suffering caused impaired functioning," which in turn rendered her relinquishment involuntary. However, an action is involuntary when it is performed under duress, force, or coercion, and the crux of this case really is whether McCann acted while under duress...
In my opinion, there is no compelling evidence that McCann's "emotional stressors" were anything but internal in nature. Therefore, although I would agree with the family court's conclusion that McCann was in an emotional state, the family court erred in finding her consent was given involuntarily. Circumstances such as temporary depression or emotional distress simply are not sufficient, in and of themselves, to invalidate a consent to adoption.
Moreover, to suggest that because others offered to support McCann regarding her adoption decision, this encouragement somehow acted to coerce McCann into signing the relinquishment is a sad commentary, indeed. Support for a parent's choice to place a baby for adoption is something that should be promoted, although clearly the decision should never be forced upon a parent...
Of most importance to the instant case is the relinquishment form which was entitled "CONSENT TO ADOPTION." As previously mentioned, and as conceded by the majority, this form complied with the statutory requirements...The purpose of these statutes is "to ensure that birth parents freely and voluntarily consent to relinquish there particular child, and do not do so under conditions of duress.
The South Carolina legislators have put several safeguards in place to ensure that a birth parent is not under duress when she consents to the adoption and relinquishes her parental rights. One of the safeguards is the form and substance of the document the birth parent signs. Another safeguard is the requirement of having the consent and relinquishment signed in the presence of two witnesses. If the consent and relinquishment is taken within this state, one of the witnesses is required to be a family court judge, an attorney who does not represent the adoptive parents, or a person certified by the Department of Social Service to take a consent and relinquishment . If the consent and relinquishment is taken outside of this state then an attorney licensed in the state or jurisdiction within which the consent and relinquishment is signed is required to be one of the witnesses.
In this case, the Court seemed to be bending the facts to its will rather than rendering an opinion based on the facts when it focused on the inner turmoil of the birth mother rather than any external coercion that may have occurred. The Court acknowledged that the consent and relinquishment was proper in form and substance; the facts discussed in the opinion indicate that the attorney taking the consent explained the legal ramification of signing the consent and the birth mother acknowledged she understood the legal ramification of signing the consent. Yet under the guise of the "totality of the circumstance" the Court rendered an opinion contrary to these facts and based on the Court's expanded definition of duress.
This opinion has the potential to make the adoption process less certain and more costly. It seems that a birth mother now only needs to show that several "emotional stressors" overwhelmed her and made her feel like she had no other choice but to release her baby for adoption; in these cases, the lower courts will be apt to find that the consent was entered into involuntarily because the South Carolina Supreme Court expanded the definition of duress to include these internal pressures caused by "emotional stressors."
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