Vol. 5, No. 4, Pg. 26. PRIVATE ADOPTION BASICS.

• Author: By Richard C. Bell

South Carolina Lawyer

1994.

Vol. 5, No. 4, Pg. 26.

PRIVATE ADOPTION BASICS

26PRIVATE ADOPTION BASICSBy Richard C. BellOne of the most rewarding yet emotional 'and legally complex areas of modern law practice is the coordination of private adoptions. The increase in two-career households, later marriages and later family planning has created a more open approach to adoption as a parental alternative. Statistical studies show a sharp decrease in children available for adoption now compared to 20 years ago. Studies also indicate that more unmarried women and teenagers carry their pregnancies to term. Yet many adoption agencies operated by state, social and religious orders report fewer infants available for adoption. Such studies may not recognize the increases in traditional private adoptions that historically have been overshadowed by state and social agencies.

Private adoptions differ from agency adoptions because no licensed adoption agency intervenes. However, most private adoptions in South Carolina involve a lawyer as intermediary. The lawyer's client can be the birth mother or the prospective adoptive parents. In a private adoption, the birth mother often selects the adoptive parents and receives no financial consideration other than reasonable and necessary living expenses.

Private and agency adoptions are alike in three ways:

* a licensed social worker or adoption investigator must visit and evaluate the adoptive parents;

* the birth parents must relinquish their rights; and

* a judge must hear the case and finalize the adoption by decree.

This article will guide the lawyer through a private adoption procedure in South Carolina as set forth in the 1986 South Carolina Adoption Act (the Act). See S.C. Code Ann. §§ 20-7-1646 et seq. A private adoption most commonly begins with contact from a birth mother (or birth parents) to discuss the possibility of adoption for the unborn child, or from prospective adoptive parents who have made contact with a birth mother and wish to take the child home from the hospital. What does the lawyer do next?

Jurisdiction

The jurisdiction for an adoption usually is not a problem. S.C. Code § 20-7-1680 gives the Family Court exclusive jurisdiction over all adoptions. The proper county for filing is either the county of residence of the petitioners (adoptive parents) or the county where the child is born. For non-resident petitioners, the proper county is simply where the child is born or resides.

Interstate Compact on the Placement of Children

Before May 1986 and the passage of the Act, South Carolina was labeled as a state that permitted baby brokering. Baby selling was outlawed, and § 20-7-1670 was intended to stop the placement of babies born in South Carolina with non-residents. In 1987 South Carolina became a member of the Interstate Compact on the Placement of Children (ICPC). See §§ 20-7-1980 through 2070. The Act requires that all placements of children where South Carolina is the receiving state (coming into the state) or the sending state (going out of state) comply with the ICPC.

The rationale of the ICPC grew out of the need for children being placed out-of-state for foster care or

28adoption to receive the same protection and services that would be provided if they remained in their home states. This recognized need was a response to such sordid practices of the past as orphan trains, child exploitation, child selling and the virtual abandonment of those forgotten children who were placed out of state.

`The lawyer must be sure to advise non-resident clients that they may have to stay in South Carolina for some time before they can take the baby home. Failure to thoroughly inform clients of the ICPC requirements and the possible delay in returning home will not only jeopardize the adoption but also can turn an otherwise happy and rewarding experience into a nightmare of frustrations as the clients and their newborn languish in some unfamiliar hotel."

Today all 50 states, the District of Columbia and the Virgin Islands are members of the ICPC. Each state has a designated compact administrator. South Carolina's compact is administered through the offices of the Department of Social Services. The safeguards against baby selling that the South Carolina legislature sought to enact are already in place in the ICPC.

When a child is placed for adoption with nonresidents, compliance with the ICPC is required. A uniform state form (100 A) is completed and sent to Columbia, where it is reviewed by the South Carolina compact administrator and then forwarded to the administrator of the...