If an Indian Child, any unmarried person who is under age eighteen and is either a member of any Indian tribe or is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe, is the subject of an adoption then the ICWA applies to the adoption.
If a parent is consenting to the adoption of an Indian Child, he must follow the requirements of both South Carolina law and the ICWA.
Sections 63-9-330 and -340 of the South Carolina Code of Laws, as amended, outlines the form of a consent and relinquishment and manner under which a consent and relinquishment must be executed. Specifically, two witnesses must witness the execution of the consent and relinquishment.
ICWA gives some added requirements for a consent and relinquishment to be valid. In addition to needing the two witnesses, the consent document is not valid unless it is in writing and recorded in open court before a judge. The judge must certify that the terms and consequences of the consent are fully explained in detail and were fully understood by the parent. Additionally, the consent and relinquishment must not be given until ten days after the birth of the child (South Carolina law has no time restriction). Finally, the consent can be revoked up until the final decree of adoption or termination of parental rights (South Carolina law has no such provision, and the consent can only be withdrawn up until the final decree if the consent was given under duress and if it is in the child’s best interest).