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South Dakota

Adoption Laws

Notice: The information contained on this website is for educational purposes only and is not intended to be a substitute for professional legal advice. Always seek the advice of a licensed and qualified professional. While the content of this website is frequently updated, information changes rapidly and therefore, some information may be out of date, and/or contain inaccuracies, omissions or typographical errors.

Consent to Adoption

Who Must Consent to an Adoption Citation: Codified Laws § 25-6-4

No child may be adopted without the consent of the child’s parents.

Consent of Child Being Adopted Citation: Codified Laws § 25-6-5

A child who is age 12 or older must consent to the adoption.

When Parental Consent Is Not Needed Citation: Codified Laws § 25-6-4

If it is in the best interests of the child, the court may waive consent from a parent or putative father who:

  • Has been convicted of any crime punishable by imprisonment in the penitentiary for a period that, in the opinion of the court, will deprive the child of the parent’s companionship for a critical period of time
  • Has, by clear and convincing evidence, abandoned the child for 6 months or more immediately prior to the filing of the petition
  • Has substantially and continuously or repeatedly neglected the child and refused to give the child necessary parental care and protection
  • Being financially able, has willfully neglected to provide the child with the necessary subsistence, education, or other care necessary for the child’s health, morals, or welfare or has neglected to pay for such subsistence, education, or other care, if legal custody of the child is lodged with others and such payment has been ordered by the court
  • Is unfit by reason of habitual abuse of intoxicating liquor or narcotic drugs
  • Has been judicially deprived of the custody of the child if the adjudication is final on appeal to the court of last resort or the time for an appeal has expired
  • Has caused the child to be conceived as a result of rape or incest
  • Does not appear personally or by counsel at the hearing to terminate parental rights after notice was received at least 30 days prior to the hearing

When Consent Can Be Executed Citation: Codified Laws § 25-5A-4

No petition to terminate rights or consent to adoption may be filed until 5 days after the child’s birth.

How Consent Must Be Executed Citation: Codified Laws §§ 25-6-12; 25-5A-16

Before the hearing on a petition for adoption, the person adopting a child, the child adopted, and the other persons whose consent is necessary shall execute their consent in writing, and the person adopting shall execute an agreement to the effect that the child adopted shall be treated in all respects as his or her own. The consent forms and the agreement of the person adopting shall be filed with the court.

At the time of the hearing on the petition, the person adopting the child and the child to be adopted shall appear in court. All persons whose consent is necessary, except the child and the person adopting the child, may be represented by a person who has power of attorney. A guardian may appear on behalf of the child, or a duly incorporated home or society for the care of dependent or neglected children may, by its authorized officer or agent, consent to the adoption of a child surrendered to such home or society by a court of competent jurisdiction. The Department of Social Services may appear in court and consent to the adoption of a child surrendered to it by any court of competent jurisdiction or, if the department has custody of a child by written agreement of a parent or parents with power of attorney to consent to adoption, by the officer of the department holding such power of attorney.

At the time of the hearing, the court, after full and complete inquiry, shall determine whether the petitioner or petitioners are fully aware of the purpose of the proceedings and the consequences of their act.

Revocation of Consent Citation: Codified Laws § 25-6-21

Except in any case involving fraud, any proceeding for the adoption of a child shall be in all things legalized, cured, and validated 1 year after the proceeding is finalized. If any person has a claim or right arising from any adoption proceeding, that person must initiate any action to enforce such right or claim within 1 year of the date when the proceeding is finalized, unless a 2 year statute of limitations is imposed by the Indian Child Welfare Act.

Criminal Background Checks for Prospective Foster and Adoptive Parents

Requirements for Foster Parents Ann. Laws § 26-6-14.3; Admin. Code §§ 67:42:01:05.01/05.02

Before issuing a child welfare license, the department shall ensure that the child welfare agency has secured from an appropriate law enforcement agency a criminal record check to determine whether the applicant or any other person specified in § 26-6-14.4 (including any adult residing in the facility or any adult volunteer who provides care and supervision to children) has ever been convicted of a crime specified by the rules of the department.

In regulation:For those family foster home applicants seeking licensure from the department and those family foster homes licensed by the department, the department shall secure a criminal records check to detect convictions for:

  • Crimes that would indicate harmful behavior toward children
  • Crimes of violence as defined by § 22-1-2, or a similar statute from another State
  • Sex crimes as defined in State statutes chapter 22-22, or similar statutes from another State
  • Felony convictions for spousal abuse or drug-related crimes

The department shall screen a foster care applicant, family members, and other household members who are at least age 10 to determine if the individuals have been involved in any substantiated incidents of child abuse or neglect.

Requirements for Adoptive Parents Ann. Laws § 25-6-9.1

No person may place a child in a home for adoption until a home study has been completed. A home study shall include a fingerprint-based criminal record check completed by the Division of Criminal Investigation and a central registry screening completed by the Department of Social Services.

In addition, no child who is in the custody of the Department of Social Services may be placed in a home for adoption until a fingerprint-based criminal record check has been completed by the FBI for each adopting parent.

Grounds for Involuntary Termination of Parental Rights

Circumstances That Are Grounds for Termination of Parental Rights Ann. Laws §§ 26-8A-26; 26-8A-26.1; 26-8A-27

If it appears at a review hearing that all reasonable efforts have been made to rehabilitate the family, that the conditions that led to the removal of the child still exist, and that there is little likelihood that those conditions will be remedied so the child can be returned to the custody of the child’s parents, the court shall affirmatively find that good cause exists for termination of the parental rights of the child’s parents, and the court shall enter an order terminating parental rights.

In addition, the court may find that good cause exists for termination of parental rights of a parent who:

  • Committed murder, manslaughter, rape, sexual exploitation of a minor, aggravated incest, criminal abuse of a minor, or kidnapping a child under age 14 with intent to conceal the child
  • Aided or abetted, attempted, conspired, or solicited to commit a crime listed above
  • Committed aggravated assault against the child or another child of such parent
  • Has been determined by a court by clear and convincing evidence to have subjected the child or another child to torture; sexual abuse; abandonment for at least 6 months; chronic physical, mental, or emotional injury; or chronic neglect, if the neglect was a serious threat to the safety of the child or another child
  • Is incarcerated and is unavailable to care for the child during a significant period of the child’s minority, considering the child’s age and the child’s need for care by an adult
  • Has had his or her parental rights to another child involuntarily terminated by a prior legal proceeding
  • Has a documented history of abuse and neglect associated with chronic alcohol or drug abuse
  • Has exposed the child to or demonstrated an inability to protect the child from substantial harm or the risk of substantial harm, and the child or another child has been removed from the parent’s custody because the removed child was adjudicated abused and neglected by a court on at least one previous occasion
  • Has exposed the child to or demonstrated an inability to protect the child from substantial harm or the risk of substantial harm, the child has been removed from the parent’s custody on two separate occasions, and the Department of Social Services offered or provided family services on each of the two separate occasions the child was removed
  • Has exposed the child to or demonstrated an inability to protect the child from substantial harm or risk of harm resulting from a crime, act, or omission as specified above
  • Is required to register as a sex offender pursuant to chapter 22-24B
  • Has abandoned the child for at least 6 months and during this period the parent has not manifested to the child or to the physical custodian or caregiver of the child a firm intention to resume physical custody of the child and to make suitable arrangements for the care of the child

Circumstances That Are Exceptions to Termination of Parental Rights

This issue is not addressed in the statutes reviewed.

Circumstances Allowing Reinstatement of Parental Rights

This issue is not addressed in the statutes reviewed.

Home Study Requirements for Prospective Parents in Domestic Adoption

Who Must Be Studied Citation: Admin. Code § 67:14:32:05.03

The study shall include the applicants and family and other household members who are at least age 10.

Agency or Person Conducting the Study Citation: Ann. Stat. § 25-6-9.1

The home study shall be completed by a licensed child-placing agency, the Department of Social Services, or a certified social worker eligible to engage in private independent practice.

Qualifications for Adoptive Parents Citation: Admin. Code § 67:14:32:08

The general qualifications for an adoptive applicant are as follows:

  • The applicant is at least age 21 and resides in South Dakota. Verification of age is required.
  • No member of the applicant’s household age 10 or older, other than a child placed in the home for foster care, has on record a substantiated report of child abuse or neglect.
  • No member of the applicant’s household has had a conviction for any of the crimes specified in § 67:14:32:05.05.
  • The applicant is capable of providing good care for children.
  • The applicant has income to meet the needs of the applicant’s existing family and to support, care, and educate an adopted child.
  • The applicant’s children, if any, are willing to accept an adopted child as a member of the family.
  • The applicant’s family composition, needs, and relationships may not adversely affect an adopted child.
  • The applicant has the ability to parent a child, including a basic understanding of the child’s physical and mental or emotional development and the ability to fulfill the child’s needs. An applicant must have the ability to offer continuing care and guidance to a child throughout the stages of the child’s development in a manner consistent with the social and cultural heritage norms of the child. The applicant must be able to continue meeting the needs of the applicant’s own children, if any. The applicant must display the capacity to provide good care for children.

The department may require a psychological evaluation and the submission of medical records if questions arise during the application process regarding the applicant’s emotional stability or the emotional stability of another household member.

Elements of a Home Study Citation: Ann. Stat. § 25-6-9.1; Admin. Code §§ 67:14:32:05.03; :09; :11.01

A home study shall include a fingerprint-based criminal record check completed by the Division of Criminal Investigation and a central registry screening completed by the Department of Social Services. In addition, no child who is in the custody of the Department of Social Services may be placed in a home for adoption until a fingerprint-based criminal record check has been completed by the FBI for each adopting parent.

In regulation: The department shall screen an applicant and family and other household members who are at least age 10 to determine if the individual has been involved in any substantiated incidents of child abuse or neglect. The individual may not have a substantiated report of child abuse or neglect.

A physical examination is required for each applicant. A physical examination completed within the 12 months preceding the application is acceptable. The applicant must present evidence to the department that each child living in the home is currently immunized against measles, mumps, and rubella (MMR); diphtheria, tetanus, and pertussis (DTP); Haemophilus Influenzae Type b (Hib); Hepatitis B (Hep B); and polio.

An adoptive study includes an evaluation of the applicant based on references, personal interviews, screenings against the central registry for abuse or neglect, a criminal record check, information obtained from at least three character references, and home consultations.

Grounds for Withholding Approval Citation: Admin. Code §§ 67:14:32:05.05; 67:14:32:10

The department shall deny an application and shall notify the applicant of the denial if the criminal record check detects a conviction for any of the following:

  • A crime that would indicate harmful behavior toward children
  • A crime of violence
  • A sex crime
  • Within the preceding 5 years, a conviction for any other felony

Within 120 days after application, the department shall notify the applicant in writing of the approval or denial. If the application is denied, the department shall inform the applicant of the reasons for the denial. If the applicant disagrees with the department’s determination, the applicant may appeal the department’s determination by requesting a fair hearing under the provisions of chapter 67:17:02.

When Studies Must Be Completed Citation: Ann. Stat. § 25-6-9.1; Admin. Code § 67:14:32:11.01

No person may place a child in a home for adoption until a home study has been completed.

In regulation: An adoptive study must be updated on an annual basis.

Postplacement Study Requirements Citation: Ann. Stat. § 25-6-11; Admin. Code §§ 67:14:11:01 through 67:14:11:03

For a child in the custody of the department, the petitioner shall notify the department when the adoption petition has been filed with the court. The department shall make a recommendation as to the desirability of the adoption.

In regulation:Upon receipt of a copy of the adoption petition, the department shall conduct an investigation as to the desirability for the adoption. The investigation shall include:

  • Personal interviews with the petitioners, the child who is older than age 6, the natural parents, or the legal guardian if parental rights have been terminated
  • Inspection of information from case records of the department
  • Inspection of information obtained from medical, financial, or other references
  • Inspection of information provided by other social agencies

Following the investigation, the department shall submit its recommendations to the judge of the court in which the adoption petition was filed. The recommendation shall be in writing and shall be signed by the secretary of the department or a designee.

Exceptions for Stepparent or Relative Adoptions Citation: Ann. Stat. § 25-6-10

In the case of a stepparent adopting a stepchild, an investigation is not required unless ordered by the court.

Requirements for Interjurisdictional Placements Citation: Ann. Stat. § 26-13-1; Admin. Code § 67:14:24:09.01

Any out-of-home placement of a child outside the State is subject to the provisions of the Interstate Compact on the Placement of Children.

The child shall not be sent into the receiving State until the appropriate public authorities in the receiving State notify the sending agency, in writing, that the proposed placement does not appear to be contrary to the interests of the child.

In regulation: A study and evaluation of an out-of-State placement facility shall be made by an agency licensed or authorized for child placement. The study and evaluation shall be based on the other State’s child placement standards and shall be submitted by the out-of-State agency to the department prior to placement of a child.

Foster to Adopt Placements Citation: Admin. Code § 67:42:05:01

A ‘fost/adopt’ family is an approved adoptive home that has agreed to accept the placement of a child who is not yet legally free for adoption. The family is committed, as is the placing agency, to make the placement permanent when legal termination of parental rights is completed.

Infant Safe Haven Laws

Infant’s Age Citation: Ann. Laws § 25-5A-27

A child who is 60 days old or younger may be relinquished.

Who May Relinquish the Infant Citation: Ann. Laws § 25-5A-27

A child may be relinquished by his or her parent.

Who May Receive the Infant Citation: Ann. Laws §§ 25-5A-27; 25-5A-34

An emergency medical services provider or licensed child-placing agency shall take possession of a child if the child is voluntarily delivered to the provider or agency by the child’s parent and the parent does not express an intent to return for the child. An emergency medical services provider is:

  • A licensed health-care facility or clinic
  • Any agent of a licensed health-care facility or clinic
  • A law enforcement officer
  • An emergency medical technician
  • A firefighter

Responsibilities of the Safe Haven Provider Citation: Ann. Laws §§ 25-5A-27; 25-5A-30; 25-5A-32

Any provider or agency who takes possession of a child pursuant to this section shall perform any act necessary to protect the physical health and safety of the child.

Any emergency medical services provider or licensed child-placing agency that accepts custody of a child may ask the child’s parent for pertinent medical information relating to the child’s medical history.

The emergency medical services provider or a licensed child-placing agency shall immediately notify the Department of Social Services that the provider or agency has taken possession of the child. The department or licensed child-placing agency shall assume the care, custody, and control of the child immediately upon receipt of the notice. However, a licensed child-placing agency that has taken possession of a child may assume the care, custody, and control of the child.

Immunity for the Provider Citation: Ann. Laws § 25-5A-31

Any emergency medical services provider or licensed child-placing agency that accepts physical custody of a child is immune from civil, criminal, and administrative liability for any act of commission or omission in connection with the acceptance of that custody or the provision of care for the child while the child is in the provider’s or agency’s custody.

Protection for Relinquishing Parent Citation: Ann. Laws §§ 25-5A-28; 25-5A-30; 25-5A-32

It is not a crime for a parent to deliver a child to an emergency medical services provider or a licensed child-placing agency if the child has not been harmed prior to being left with the emergency medical services provider or a licensed child-placing agency.

The parent leaving the child is not required to provide any information, including the name of the parents.

The department or licensed child-placing agency may not attempt to identify, contact, or investigate the parent who voluntarily delivered the child to an emergency medical services provider or a licensed child-placing agency unless it appears the child has been harmed.

Effect on Parental Rights Citation: Ann. Laws §§ 25-5A-29; 25-5A-33; 25-5A-35; 25-5A-36

If a parent of a child relinquishes custody of the child to an emergency medical services provider or a licensed child-placing agency, then, after 14 days and by operation of law:

  • All of that parent’s rights with respect to the child are terminated.
  • The child becomes a ward of the State or licensed child-placing agency.

If one parent of a child relinquishes custody of the child to an emergency medical services provider or a licensed child-placing agency, the other parent may file an action for custody of the child. The nonrelinquishing parent shall file such an action within 30 days after the provider or agency accepts custody of the child from the relinquishing parent. In such an action, the nonrelinquishing parent shall prove the following by a preponderance of the evidence:

  • He or she is the parent of the child.
  • He or she did not consent to relinquishment of the child’s custody to the provider or agency.

A hearing shall be held in circuit court to terminate parental rights 60 days after the emergency medical services provider or licensed child-placing agency takes possession of the child. Due regard shall be afforded to the Indian Child Welfare Act if that act is applicable.

Regulation of Private Domestic Adoption Expenses

Birth Parent Expenses Allowed Citation: Ann. Laws § 25-6-4.2

Only charges that have been approved by the court are allowed.

Birth Parent Expenses Not Allowed

This issue is not addressed in the statutes reviewed.

Allowable Payments for Arranging Adoption Citation: Ann. Laws § 25-6-4.2

It is unlawful for any person to offer, give, or receive any money or other consideration or thing of value in connection with the placing of any child for adoption, relating to the consent to adoption, or with the petition for adoption except such charges as are approved by the court and fees charged by licensed agencies.

Allowable Payments for Relinquishing Child Citation: Ann. Laws § 25-6-4.1

It shall be unlawful to compel, coerce, or force by any means any person to release, sell, place, relinquish, or give up for adoption any minor child.

Allowable Fees Charged by Department/Agency Citation: Ann. Laws § 25-6-4.2

Fees charged by licensed agencies are permitted.

Accounting of Expenses Required by Court

This issue is not addressed in the statutes reviewed.

The Rights of Unmarried Fathers

Legal Definition of Father Ann. Laws § 25-5A-1

The term ‘parents’ means the mother and father, if living, of a child.

The term ‘putative father’ means any person who claims to be, or is named as, the biological father or a possible biological father of a child, and whose paternity of the child has not been judicially determined.

Paternity Registry Ann. Laws § 25-8-50; 25-8-63

Upon the birth of a child to an unmarried woman, and prior to discharge, any hospital, physician, health-care provider, midwife, or nurse who assists in the birth of the child shall:

  • Provide an opportunity for the child’s mother and alleged father to sign under oath an affidavit of paternity
  • Provide to the mother and to the alleged father any necessary information furnished by the Department of Social Services that describes, among other things:
    • The rights and responsibilities of parentage
    • The benefits of having the child’s paternity established
    • The alleged father’s legal rights and responsibilities, including his right to request genetic testing
    • The child’s right to receive child support
    • That a signed affidavit of paternity creates a rebuttable presumption of paternity
    • That a signed affidavit of paternity allows the establishment of a support obligation without requiring further proceedings to establish paternity
    • That completion of the affidavit of paternity is voluntary and is not required of either the mother or the alleged father

If obtained, the fully completed, signed, and notarized original affidavit of paternity shall be forwarded to the Department of Health within 7 days following the birth of the child. Every affidavit or adjudication of paternity shall be filed with the Department of Health for comparison with information contained within the State case registry.

Alternate Means to Establish Paternity Ann. Laws §§ 25-8-7; 25-8-7.1

An action to determine paternity is a civil action governed by the Rules of Civil Procedure. They are not exclusive of other proceedings that may be available on principles of law or equity.

Upon determining paternity of a child, the court shall give judgment declaring the paternity of the father to the child. The court may award a money judgment to the appropriate party for the recovery of the reasonable expenses of the mother’s pregnancy and confinement; for the education, support, or funeral expenses for the child; or for any other expenses with respect to the child as the court deems reasonable.

In any action or proceeding in which the parentage of a child is at issue, upon motion of the court or the department or any of the interested parties, the court shall, for good cause shown, order the mother, the child, or any alleged father to submit to an examination of blood, tissue, or other bodily substances for the purpose of testing any genetic systems that are generally accepted within the scientific community for the conclusive determination of paternity probability. The results of the tests, together with the opinions and conclusions of the testing laboratory, shall be filed with the court.

Required Information

This issue is not addressed in the statutes reviewed.

Revocation of Claim to Paternity Ann. Laws § 25-8-59

Any action contesting a rebuttable presumption of paternity shall be commenced in circuit court either 60 days after the creation of the presumption of paternity or the date of any administrative or judicial proceedings relating to the child, including proceedings to establish a support obligation, whichever occurs earlier, except in cases where there are allegations of fraud, duress, or material mistake of fact.

In cases involving allegations of fraud, duress, or material mistake of fact, any action contesting a rebuttable presumption of paternity shall be commenced within 3 years after the creation of any presumption. The burden of proof shall be upon the moving party, and the payment of child support or any other legal responsibilities of the parties may not be suspended during the pendency of the proceedings, except upon a showing of good cause by the moving party.

Access to Information

This issue is not addressed in the statutes reviewed.

Use of Advertising and Facilitators in Adoptive Placements

Use of Advertisement

This issue is not addressed in the statutes reviewed.

Use of Intermediaries/Facilitators Citation: Ann. Stat. § 25-6-4.2

Any person who offers, gives, or receives any money or other consideration or thing of value in connection with the placing of a child for adoption, or relating to the consent to adoption, or with the petition for adoption, except such charges as are approved by the court and fees charged by licensed agencies, is guilty of a felony.

Who May Adopt, Be Adopted, or Place a Child for Adoption?

Who May Adopt Citation: Ann. Laws §§ 25-6-2; 25-6-3

Any adult person who is at least 10 years older than the child may adopt. A married person must have the consent of his or her spouse unless they are legally separated.

Who May Be Adopted Citation: Ann. Laws §§ 25-6-2; 25-6-18

Any minor child may be adopted. An adult may be adopted if he or she consents and if he or she lived in the home of the adoptive parents during his or her minority for at least 6 months.

Who May Place a Child for Adoption Citation: Ann. Laws § 26-6-8

Only the following may place a child for adoption:

  • A parent
  • A guardian
  • A relative within the second degree
  • A licensed child welfare agency
  • The Department of Social Services

Post-Adoption Laws

Access to Adoption Records

Who May Access Information Citation: Ann. Code §§ 25-6-15.2; 25-6-15.3

Nonidentifying information may be released to:

Identifying information may be released to:

  • The adopted person
  • The birth parents

Access to Nonidentifying Information Citation: Ann. Code § 25-6-15.2

Nonidentifying information, if known, shall be made available to the adoptive parent or to the adopted person who is age 18 or older upon written request and proper proof of identification. Information may be withheld only if would tend to identify a birth relative. Nonidentifying information includes:

  • The age of the birth parents at the time of the child’s birth
  • The heritage of the birth parents, including nationality, ethnic background, and race
  • The number of years of school completed by the birth parents at the time of the child’s birth
  • The general physical appearance of the birth parents at the time of the child’s birth in terms of height, weight, color of hair, eyes, skin, and other information of a similar nature
  • The talents, hobbies, and special interests of the birth parents
  • The existence of any other children born to either birth parent before the child’s birth
  • Whether the termination of parental rights was voluntary or involuntary
  • The religion of the birth parents
  • The occupations of the birth parents in general terms
  • The health history of the birth parents and blood relatives
  • The relationship between the birth parents

Mutual Access to Identifying Information Citation: Ann. Code § 25-6-15.3

The Department of Social Services shall maintain a voluntary registry of adopted persons and birth parents who have presented a consent regarding the release of identifying information about themselves. Any consent shall indicate to whom the information may be released and whether the adopted person desires release of this identifying information after his or her death. A person who uses this voluntary register may revoke his or her consent at any time.

Access to Original Birth Certificate Citation: Ann. Code § 34-25-16.4

The original birth certificate is available upon order of the court.

Where the Information Can Be Located

South Dakota Voluntary Adoption Registry, Department of Social Services, Adoption Unit

Intestate Inheritance Rights for Adopted Persons

Birth Parents in Relation to Adopted Person Citation: Ann. Laws § 29A-2-114

For purposes of intestate succession, an adopted person is no longer considered the child of that person’s birth parents, except that:

  • Adoption of a child by the spouse of a birth parent has no effect on the relationship between the child and the birth parent whose spouse has adopted the child or the right of the child or a descendant of the child to inherit from or through the other birth parent.
  • Adoption of a child by a birth grandparent or a descendant of a birth grandparent has no effect on the right of the child or a descendant of the child to inherit from or through either birth parent.

Adoptive Parents in Relation to Adopted Person Citation: Ann. Laws § 29A-2-114

For purposes of intestate succession, an adopted individual is the child of that individual’s adopting parent or parents.

Adopted Persons Who Are Not Included in a Will Citation: Ann. Laws §§ 29A-2-302; 29A-2-705

A child who is adopted by the testator after the execution of his or her will, who is neither mentioned nor provided for in the will, is entitled to receive a share in the estate as follows:

  • If the testator had no child living when the will was executed, the omitted after-adopted child receives a share in the estate equal in value to what the child would have received had the testator died intestate, unless the will gave all or substantially all of the estate to the other parent of the omitted child and that other parent survives the testator and is entitled to inherit under the will.
  • If the testator had one or more children living when the will was executed, and the will gave property or an interest in property to one or more of the then-living children:
    • The portion of the estate that the omitted after-adopted child is entitled to share is limited to the bequests made to the testator’s then-living children.
    • The omitted after-adopted child is entitled to receive the portion of the property or interest in property that the child would have received had the testator included all omitted after-born and after-adopted children with the children to whom bequests were made and had given each child an equal share of the bequests.

Despite the above provisions, an omitted after-adopted child may not receive a share in the estate if the testator provided for the child by transfer outside the will with the intent that the transfer be in lieu of a testamentary provision.

Adopted individuals and their respective descendants, if appropriate to the class, are included in class gifts and other terms of relationship in accordance with the rules for intestate succession.

Postadoption Contact Agreements Between Birth and Adoptive Families

What may be included in postadoption contact agreements? Codified Laws § 25-6-17

The natural parents of an adopted child shall retain no rights or privileges to visitation or other postadoption contact with the child, except in cases where a natural parent consents to the adoption of a child by the child’s stepfather or stepmother who is the present spouse of the natural parent, or in cases of voluntary termination where there is a written preadoption agreement between the natural parent or parents and the adoptive parents.

Who may be a party to a postadoption contact agreement? Codified Laws § 25-6-17

In cases where the natural parent consents to an adoption by the child’s stepparent, or where there is a voluntary termination of the natural parent(s)’ rights, the natural parents may enter into a written preadoption agreement with the adoptive parents.

What is the role of the court in postadoption contact agreements? Codified Laws § 25-6-17

The courts do not have jurisdiction over the agreements. The South Dakota Supreme Court decision, People in Interest of S.A.H., 537 N.W.2d 1(S.D. 1995), is abrogated by the South Dakota Legislature insofar as the case gave circuit courts the option to order an open adoption or posttermination visitation. This section does not apply to preadoption agreements entered into before July 1, 1997.

Are agreements legally enforceable? Codified Laws § 25-6-17

Enforcement is not specifically addressed in the statutes reviewed.

Postadoption visitation an extraordinary remedy that may be exercised only by the adoptive parents when in the child’s best interests.

How may an agreement be terminated or modified?

This issue is not addressed in the statutes reviewed.

Laws Related to Intercountry Adoption

Effect and Recognition of a Foreign Adoption Decree

Ann. Stat. § 25-6-25

Any order of adoption entered in compliance with the laws of another jurisdiction or nation shall have the same effect as an order for adoption entered in this State.

Readoption After an Intercountry Adoption

This issue is not addressed in the statutes reviewed.

Application for a U.S. Birth Certificate

Ann. Laws § 34-25-16.1

If the birth occurred in a foreign nation, and the adoption decree is entered in a court of this State, the Department of Health shall issue a new certificate of birth in the new name of the child and with the name of the adopting person. The birth certificate shall be prepared in accord with the facts as found and entered by the court. If the birth occurred in a foreign nation and the adoption was finalized in a foreign nation, any circuit court of this State may issue an order, ex parte and without hearing, directing that a new certificate of birth be issued upon filing the following documentation:

  • The adoption order from the foreign nation
  • A certified translation of the adoption order, if necessary
  • Proof of the date and place of the child’s birth
  • Proof of IR-3 immigration status
  • Proof that each adopting person is a resident of this State

The Department of Health shall issue a new certificate of birth in the new name of the child and the name of each adopting person upon receipt from the clerk of courts such information necessary to establish a new certificate of birth on a form prepared by the department.

Source

Child Welfare Information Gateway. U.S. Department of Health and Human Services Administration for Children and Families. [1]

References

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