South Dakota Adoption Laws

South Dakota adoption laws protect the legal rights of the birth parents, adoptive families, and, most importantly, the adoptive children. South Dakota is an "adoption-friendly" state because its laws are less restrictive than some. The adoption process still requires prospective parents to meet all requirements and appear before a family court judge.

If you're considering adoption, you can go through the South Dakota Department of Social Services (SDDSS) or a private adoption service. Federal and state laws apply to both types of adoption.

South Dakota Adoption Laws

In South Dakota, the court's primary concern is the best interests of the child. Social services screen prospective adoptive parents and homes thoroughly. This protects the parental rights of the birth parents as well as those of the adopting parents.

Types of Adoption

South Dakota recognizes several types of adoptions. Adoptions may be public or private.

• Adoptions done through the SDDSS or other public social service agencies. Some religious service agencies have contracted with the state to place children in need of foster care and adoption services.
• Private adoptions are helped by adoption attorneys through private adoption agencies.
• Interstate and international adoptions. Interstate adoptions must follow the Interstate Compact on the Placement of Children (ICPC). The Hague Convention governs international adoptions. SDDSS is not involved with international adoptions. Parents should consult an attorney who handles out-of-country adoptions.
• Stepparent adoptions. When a non-custodial parent willingly or involuntarily relinquishes their parental rights, the child's stepparent can adopt the child. The non-custodial parent terminates all parental rights and contact with the child, so no adoption can take place unless the other parent agrees or is unavailable.
• Adult adoption. Adults may adopt other adults if both parties consent. The adoptee must have lived in the adoptive home as a child for at least six months before the age of 21.

Who May Adopt

In general, any adult may adopt in South Dakota. Marriage is not required. All adopting parents must be residents of South Dakota. Prospective parents must also meet other requirements to become parents.

• You must be at least 10 years older than the child you wish to adopt. A child 12 years of age and over must consent to the adoption.
• You must pass a criminal background check, including a child abuse registry check and a domestic violence check.
• You must undergo a home study by a child placement agency or independent social worker.
• The child must live with the adoptive family for six months before finalization. This is not for relative and stepparent adoptions.

Married people can't adopt without the other spouse's consent. This rule applies to legally separated (but not divorced) spouses. For instance, a legally separated husband can't adopt a child without his wife's consent.

South Dakota law allows faith-based adoption agencies to refuse adoption based on their "sincerely held religious beliefs."

South Dakota's Adoption Process

A birth mother may voluntarily terminate her parental rights five days after the birth of the child. The birth father may voluntarily terminate his parental rights at the same time. If the father is unknown or unavailable, South Dakota courts have a process for terminating his rights involuntarily (S.D. Codified Laws § 25-6-4). The court must have both parents' consent before the adoption can continue.

In independent adoptions, the birth parents can select the adoptive parents if they wish. The parent signs their rights to the agency for adoption through private agencies. With an SDDSS adoption, termination of parental rights is complete, and the child is ready for adoption.

All families must have a home study performed by a licensed social worker or SDDSS before finalizing the adoption. By state law, SDDSS pays for all home studies. A child is placed only once the study is complete.

The child must live with the adoptive parents for six months before the court finalizes the adoption. A minor child may take the adoptive family's name and request a new birth certificate.

Post-Adoption Information

South Dakota law restricts access to adoption records except by the adoptive parents and the child upon their 18th birthday (S.D. Codified Laws § 25-6-15 et seq.). South Dakota does not generally enforce open adoptions unless there is a compelling reason.

Parents who adopt special needs children or other children with financial costs associated with their adoption may be eligible for help from SDDSS.

Native American Adoption

South Dakota's adoption services must follow the Indian Child Welfare Act (ICWA). This federal law requires adoption agencies and state social services to give preference to Native American families and tribes when a Native child goes into foster care or adoption. Under ICWA, adoption services must notify a child's tribe or Indian custodian if the state removes a child from their parents without the parents' consent.

Under federal law, a tribe or tribal court may intervene at any time during an adoption proceeding if it is in the best interests of the child to do so.

Get Legal Advice from a South Dakota Adoption Attorney

If you've started on your adoption journey or are considering adoption for your unborn child, you need legal advice from an experienced South Dakota adoption attorney to help you protect your rights and those of your child.