Eight weeks after the Court of Appeals affirmed a family court finding that South Carolina’s adoption statute required strict compliance with statutory consent requirements in order for the consent to be valid, the Supreme Court affirmed that ruling in the September 29, 2014 opinion of Brown v. Baby Girl Harper, 410 S.C. 446, 766 S.E.2d 375 (2014). This rapid resolution demonstrates the appellate court’s determination to quickly resolve appeals involving the placement of children.

In Brown the attorney who was supposed to witness the birth mother’s consent failed to explain the consent to the birth mother and failed to witness the birth mother actually executing the consent. The non-attorney witness could not affirm that the consent was being given voluntarily and that it is not being obtained under duress or through coercion because that witness did not actually observe the consent being explained to the birth mother. The attorney for the adoptive mother explained the consent to birth mother but the attorney who was supposed to witness the consent did not. The Supreme Court indicated this procedure was insufficient. It agreed with the Court of Appeals’ analysis and further noted:

The main reason [a consent form] is so crucial is because, under South Carolina law, there simply is no waiting period before a relinquishment of parental rights becomes effective. It is the Legislature, not this Court, that has made this pronouncement. The legal rules on the timing of consents 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 process for newborns.

The Legislature has chosen to safeguard this difficult decision-making process with certain requirements regarding both the form and content of a consent or relinquishment form and the process employed at the actual signing of the form.

Per the Supreme Court, this:

decision is narrow and fact-based, and we are not precluding the use of substantial compliance in future cases where technical defects in the consent, such as a scrivener’s error, may be at stake. We reach our decision here because the defects in execution were material and egregious.

(emphasis in original)

Finding the consent to be invalid and presuming birth mother to be fit, the Supreme Court ordered the child returned to birth mother as soon as the petition for rehearing time had elapsed (unless it granted that petition).

For attorneys wanting to follow the holding of Brown and insure that adoption consents are valid, the following requirements must be complied with strictly:

  • The attorney witnessing the consent may be paid by the adoptive parent(s) but must work for the birth parent. The adoptive parent’s attorney cannot be the witness.
  • The attorney witnessing the consent must not only witness the execution of the consent but must explain the consent and its ramifications to the birth parent.
  • The non-attorney witness needs to be physically present and observing when the attorney witness explains the adoption consent to the birth parent.
  • Both the attorney and non-attorney witness must attest that the consent is being given voluntarily and that it is not being obtained under duress or through coercion.

On July 30, 2014 the South Carolina Court of Appeals published the previously unpublished opinion in the case of Katzburg v. Katzburg, 410 S.C. 184, 764 S.E.2d 3 (Ct. App. 2014). This opinion answers the frequently recurring question of where to enforce foreign state’s equitable distribution orders. The answer: circuit court. A more detailed analysis of the opinion can be found in the blog I did when Katzburg was initially released as an unpublished opinion.

The issue of where one enforces foreign equitable distribution orders has long vexed me. It has been my opinion that circuit court was the correct answer, but often family court judges did not agree with me. The judge in Katzburg didn’t, resulting in my client spending almost six months in jail. Folks occasionally call to retain me to enforce these orders and I could not give them a definitive answer on which court could enforce them. After Katzburg was issued as an unpublished opinion I actually petitioned the Court of Appeals to consider publishing solely so this issue could be resolved, and I appreciate the assistance of Thomas F. McDow, James Fletcher Thompson and T. Ryan Phillips in supporting this request. We now have a definitive answer on where to enforce these foreign equitable distribution orders.

My family spent last evening with South Carolina adoption guru James Fletcher Thompson.  James regaled us with stories of the latest trends in assisted reproduction technology.  Evidently even South Carolina is starting to allow not just gay parents to adopt but is even allowing same sex couple adoption (meaning some children have two legal mothers or two legal fathers).  Couples are raising children who have been gestated by a third party or in which only one partner has a biological connection with a child who was conceived through a donor egg or sperm.  Our culture is slowly moving from one in which being a legal parent almost always meant being the biological parent of a child conceived through sexual intercourse to one in which being a parent is increasingly based upon the establishment of a legal relationship in which one agrees to assume responsibility for raising a child in return for which the state grants one legal authority over the child.

This makes the timing of today’s New York Times piece, “Measure Opens Door to Three Parents, or Four,” particularly fascinating.  Evidently courts in a few states have authorized adoptions allowing a child to have three or even four parents.  Delaware and the District of Columbia have passed laws that allow for third “de facto parents,” who have the same rights and responsibilities toward their children as adoptive parents.  California is considering a similar measure.

The article focuses upon two examples in which a child has more than two caregivers assuming a role as parents.  These families demonstrate the type of situations in which caregivers may wish for a child to have more than two legal parents.  One example was of two married homosexual couples, one gay and one lesbian, raising two daughters together.  These children are biologically related to one of the gay men but the lesbians are these girls’ legal parents.  The other example was a child who was adopted by her stepfather without terminating the parental rights of her biological father.

The desire of these parents to allow a legally-recognized parent-child relationship with more than two people has both emotional and practical bases.  Folks willing to commit to parenting a child–as all four of the “parents” in the two homosexual couples appear to have done–naturally want the law to recognize that relationship and give them the rights that stem from being a legal parent.  These parents further argue that allowing a child to have more than two legal parents reduces the risk that the child will end up in foster care if a parent dies or becomes unable to care for the child.  As the biological father of the girls explains, “This would be the final piece, so we don’t have to worry if something happens to the legal parents or if I am out with the kids and something happens.  Legally, they could just take my kids and I couldn’t do anything about it.”

The article also interviews the child, now age 20, who was adopted by her stepfather without her biological father’s parental rights being terminated.  She tells The Times, “If it were a choice between dropping my dad to be replaced by my stepdad, I would not have been open to it, but with a joint adoption you don’t have to battle about who is going to be Mom and who is going to be Dad. You can have a situation where everyone is happy and part of the family.”

One can easily imagine social conservatives going apoplectic, and perhaps apocalyptic, at the idea of children having more than two legal parents.  I have long supported same sex marriage and same sex couple adoption, yet the idea of children having more than two legal parents gives me the same sort of discomfort that the concept of legalized polygamy gives me.  The parade of horribles that social conservatives predict(ed) from allowing gay marriage or same sex adoption struck me as merely hysterical: they didn’t expand the concept of marriage or adoptive parenting so much as expand the number of potential beneficiaries of marriage or adoption.  But just as polygamy adds more inter-personal complications to the marital relationship, allowing children to have more than two parents adds these complications to the parent-child relationship.  Contested custody and visitation battles are plenty divisive when a child’s time and caretaking has to be divided between two people.  Contested custody litigation involving three, four or more parents is geometrically more complex.

Yet, as the parents and the adult child interviewed in this article demonstrate, a child’s life can sometimes be improved by having more than two caregivers willing to take on the commitment of parenting.  With our legal culture increasingly determining that mere adherence to tradition is no reason to prevent folks from redefining relationships to suit their purposes, allowing children to sometimes have more than two parents has some appeal.  Once this trend starts it’s hard to see what might stop it.  I suspect we are entering an era when some children will indeed have more than two legal parents.

Put Mr. Forman’s experience, knowledge, and dedication to your service for any of your South Carolina family law needs.

Recent Blog Posts

The Folly of Fighting Child Protective Services after a Merits Finding

Early in my career, when family court attorneys were still being court appointed to represent indigent parents in abuse and neglect proceedings, I

[ + ] Read More

Court of Appeals determines homosexual couples could not enter common law marriage prior to the Condon case

A July 1, 2020, Court of Appeals opinion in Swicegood v. Thomson determined that South Carolina code prohibited homosexual couples from forming the

[ + ] Read More

College related child care is not work-related child care for the purpose of setting child support

There are a number of South Carolina family court opinions that are of narrow relevance but of significant importance when relevant. Such cases

[ + ] Read More