In the March 16, 2012 opinion in Anthony H. v. Matthew G.,397 S.C. 447, 725 S.E.2d 132 (Ct. App. 2012) the Court of Appeals held that the state and federal statutes for determining child custody jurisdiction in multi-state disputes are applicable to adoption cases that require a termination of parental rights (TPR). Because the South Carolina adoption jurisdiction statute, S.C. Code. § 63-9-40(A), requires adoption proceedings be brought in the county where the petitioner or the child resides, it had been unclear whether the Parental Kidnapping Prevention Act (PKPA) and the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) applied to adoption proceedings. Anthony H. indicates that they do if a TRP is required.
The fact pattern of Anthony H. is one that frequently occurs. Mother and Father had a final custody order in Georgia. Mother then moved to South Carolina with Stepfather, who wanted to adopt the child at issue. However, because Father had not consented to the adoption, Mother and Stepfather needed to terminate Father’s parental rights before the adoption could take place. They filed the TPR/adoption action in South Carolina. Father, who still resided in Georgia, then filed a custody modification action in Georgia and, shortly before the South Carolina case went to trial, moved to dismiss the South Carolina action arguing Georgia still had jurisdiction. The South Carolina court denied his motion to dismiss and, after trial, issued an order terminating Father’s parental rights and authorizing the adoption. Father appealed.
As the Court of Appeals noted, the PKPA and UCCJEA are explicitly applicable to termination of parental rights proceedings. 28 U.S.C.A. § 1738A(e); S.C. Code § 63-15-302(4). The Court next noted that “a nonconsensual adoption action requires a bifurcated proceeding since an adoption may not proceed without first obtaining a termination of parental rights.” Since the termination of parental rights was required before the adoption could take place, the Court determined that the PKPA and UCCJEA applied to this case.
Since Father still lived in Georgia and Georgia had not declined jurisdiction over child custody, the Court of Appeals further found that Georgia, that state has had issued the initial custody order, had exclusive jurisdiction over any termination of parental rights action. Finding that the South Carolina had improperly assumed jurisdiction, the Court of Appeals vacated the family court’s order terminating Father’s parental rights and granting Stepfather’s petition for adoption.
I often receive calls from couples who have moved to South Carolina and are hoping for the stepfather to adopt a child. If there is a custody order from another state and the father still lives in that state, I have advised such clients that they need to either obtain the father’s consent, get the issuing state to decline jurisdiction, or have the issuing state terminate the father’s parental rights before I can help them. Anthony H. indicates such advice is correct and demonstrates the folly of ignoring the PKPA and UCCJEA when trying to terminate a non-resident’s parental rights.