“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.