CHAPTER 25-6
ADOPTION OF CHILDREN
25-6-1 Adoption of illegitimate child by acknowledgment and conduct of father--Legitimation from birth.
25-6-1.1 Father of illegitimate child not entitled to notice unless acknowledged.
25-6-2 Adoption of minor child permitted--Minimum difference in ages--Best interests of child.
25-6-3 Consent of spouse required for adoption.
25-6-4 Consent of child's parents required for adoption--Court waiver of consent.
25-6-4.1 Compelling, coercing, or forcing adoption as felony.
25-6-4.2 Offering, giving, or receiving unauthorized consideration for adoption as felony.
25-6-5 Consent of child over twelve required.
25-6-6 Jurisdiction of circuit court--Appeal.
25-6-7 Venue of adoption proceedings.
25-6-8 Joinder of proceedings as to two or more children--Separate orders required.
25-6-9 Period of residence in home required before petition granted.
25-6-9.1 Home study report--Requirement--Cost.
25-6-9.2 Effective date.
25-6-10 Petition--Time of hearing--Investigation ordered--Report.
25-6-11 Notice to Department of Social Services--Recommendation of department--Appearance.
25-6-12 Execution of consent and agreement by parties--Appearances at hearing.
25-6-13 Examination of witnesses and investigations by court--Order of adoption--Contents.
25-6-14 25-6-14. Repealed by SL 1972, ch 194, § 45
25-6-15 Access to court adoption records restricted--Notice of hearing to department or adoption agency--Disclosure not contested nor supported.
25-6-15.1 Confidentiality of records.
25-6-15.2 Nonidentifying information--Release to adoptive parent or adoptee.
25-6-15.3 Registry of consents to release of identifying information.
25-6-16 Change of name by adopted child--Relationship with adoptive parent.
25-6-17 Rights and duties of natural parents terminated on adoption--Exceptions.
25-6-18 Petition for adoption of adult--Consent--Residence requirement.
25-6-19 Order for adoption of adult.
25-6-20 Jurisdictional provisions applicable to adoption of adults--Effect of adoption--New birth certificate optional.
25-6-21 Cure of past irregularities in proceedings--Limitation of actions.
25-6-22 Medical information on adoptee's birthparent available to adoptee or adoptee's legal guardian--Written request--Proof.
25-6-23 Medical and social history form filed in adoption of abused or neglected child--Availability to adoptive parents and adoptee--Failure to comply.
25-6-24 Due regard to be afforded Indian Child Welfare Act.
25-6-25 Effect of adoption orders of another jurisdiction or nation.
25-6-1. Adoption of illegitimate child by acknowledgment and conduct of father--Legitimation from birth.
The father of an illegitimate child by publicly acknowledging it as his own, receiving it as such into his family, with the consent of his wife if he is married and otherwise treating it as if it were a legitimate child, thereby adopts it as such, and such child is thereupon deemed for all purposes legitimate from the time of its birth. The other provisions of law relating to adoption shall not apply in such cases.
Source: SDC 1939, § 14.0408.
25-6-1.1. Father of illegitimate child not entitled to notice unless acknowledged.
Notwithstanding any other provision of law or court rule the father of an illegitimate child shall, as a requirement of due process, have no rights to the service of process in adoption, dependency, delinquency, or termination of parental rights proceedings unless he is known and identified by the mother or unless he, prior to the entry of a final order, in any of the three proceedings, shall have acknowledged the child as his own by affirmatively asserting paternity, within sixty days after the birth of the child:
(1) As outlined in § 25-6-1; or
(2) By causing his name to be affixed to the birth certificate as provided by § 34-25-13.2; or
(3) Otherwise by commencing a judicial proceeding claiming a parental right.
Source: SL 1974, ch 176.
25-6-2. Adoption of minor child permitted--Minimum difference in ages--Best interests of child.
Any minor child may be adopted by any adult person. However, the person adopting the child shall be at least ten years older than the child adopted unless the court finds the adoption of the child by the adult person in the best interest of the child.
In an adoption proceeding or in any proceeding that challenges an order of adoption or order terminating parental rights, the court shall give due consideration to the interests of the parties to the proceedings, but shall give paramount consideration to the best interests of the child.
Source: SDC 1939, § 14.0401; SL 1994, ch 199; SL 2018, ch 158, § 1, eff. Feb. 27, 2018.
25-6-3. Consent of spouse required for adoption.
A married man not lawfully separated from his wife cannot adopt a child without the consent of his wife, nor can a married woman, not thus separated from her husband, without his consent, provided the husband or wife not consenting is capable of giving such consent.
Source: SDC 1939, § 14.0402.
25-6-4. Consent of child's parents required for adoption--Court waiver of consent.
No child may be adopted without the consent of the child's parents. However, if it is in the best interest of the child, the court may waive consent from a parent or putative father who:
(1) Has been convicted of any crime punishable by imprisonment in a state correctional facility 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;
(2) Has, by clear and convincing evidence, abandoned the child for six months or more immediately prior to the filing of the petition;
(3) Has substantially and continuously or repeatedly neglected the child and refused to give the child necessary parental care and protection;
(4) 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 ordered by the court;
(5) Is unfit by reason of habitual abuse of intoxicating liquor or narcotic drugs;
(6) 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;
(6A) Has caused the child to be conceived as a result of rape or incest; or
(7) Does not appear personally or by counsel at the hearing to terminate parental rights after notice pursuant to §§ 25-5A-11 and 25-5A-12 which was received at least fifteen days prior to the hearing.
Source: SDC 1939, § 14.0403; SL 1973, ch 163, § 4; SL 1984, ch 188; SL 1996, ch 164, § 2; SL 1997, ch 152, § 1; SL 2006, ch 139, § 1; SL 2018, ch 159, § 1; SL 2023, ch 82, § 94.
25-6-4.1. Compelling, coercing, or forcing adoption as felony.
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. A violation of this section shall be a Class 6 felony.
Source: SL 1977, ch 205, § 2.
25-6-4.2. Offering, giving, or receiving unauthorized consideration for adoption as felony.
Any person who offers, gives, or receives any money or other consideration or thing of value in connection with the placing of any 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 agencies licensed pursuant to chapter 26-6, is guilty of a Class 6 felony.
Source: SL 1977, ch 205, § 1.
25-6-5. Consent of child over twelve required.
The consent of the child, if over the age of twelve years, is necessary to its adoption.
Source: SDC 1939, § 14.0404.
25-6-6. Jurisdiction of circuit court--Appeal.
The circuit court is vested with the jurisdiction to hear, try, and determine all matters relative to the adoption of children, subject to the right of appeal in the same form and manner as appeals are taken from the circuit court.
Source: SDC 1939, § 14.0405; SL 1951, ch 42, § 1.
25-6-7. Venue of adoption proceedings.
The circuit court for the county of the child's legal residence or of the adopting parent's legal residence according to where petition is first filed shall have the original jurisdiction.
Source: SDC 1939, § 14.0405; SL 1951, ch 42, § 1.
25-6-8. Joinder of proceedings as to two or more children--Separate orders required.
The adoption of two or more children by the same adopting parent or parents may be included in one proceeding, provided, that a separate order of adoption shall be made and filed by the court as to each child adopted.
Source: SDC 1939, § 14.0405 as added by SL 1951, ch 42, § 1.
25-6-9. Period of residence in home required before petition granted.
No petition for adoption shall be granted until the child shall have lived within the proposed foster home for a period of at least six months.
Source: SDC 1939, § 14.0406; SL 1945, ch 47, § 1; SL 1947, ch 54.
25-6-9.1. Home study report––Requirement––Cost.
A person may not place a child in a home for adoption until a home study has been completed by a licensed child placement agency, as defined in § 26-6-14, the Department of Social Services, or a certified social worker eligible to engage in private independent practice, as defined in § 36-26-17. Any person who submitted home studies under this section or under § 26-4-15 prior to July 1, 1990, may continue to submit home study reports without meeting the above requirements.
A home study must 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.
A child who is in the custody of the Department of Social Services may not be placed in a home for adoption until a fingerprint-based criminal record check has been completed by the Federal Bureau of Investigation, for each adopting parent.
The cost of a home study required under this section is the responsibility of the Department of Social Services. The necessary funding must be budgeted and expended through the general appropriations act, pursuant to chapter 4-7. The Department shall make rules pursuant to chapter 1-26 to establish a cap on the cost to be reimbursed.
Any person who violates this section is guilty of a Class 1 misdemeanor.
Source: SL 1986, ch 214, §§ 2, 3; SL 1990, ch 185, § 1; SL 1992, ch 180, § 1; SL 2002, ch 116, § 2; SL 2003, ch 145, § 1; SL 2007, ch 156, § 1; SL 2008, ch 130, § 1; SL 2022, ch 79, § 1.
25-6-9.2. Effective date.
The provisions of §§ 25-6-9.1 and 25-6-15 apply to any child placement made after July 1, 1986.
Source: SL 1986, ch 214, § 4.
25-6-10. Petition--Time of hearing--Investigation ordered--Report.
Whenever a person, or a husband and wife jointly, petition the circuit court for leave to adopt a minor child, the judge of the circuit court must fix a time for hearing not less than ten days from the filing of the petition. A petitioner may file the petition with the circuit court before the six-month period required by § 25-6-9 has passed. The circuit court may, in the case of a stepparent adopting a stepchild, and shall in all other cases, direct an agent of the Department of Social Services or another competent person to make a careful and thorough investigation of the matter and report the findings in writing to the court. The investigative report must include the history of any previous child support obligations of each prospective adoptive parent.
Source: SDC 1939, § 14.0406; SL 1945, ch 47, § 1; SL 1947, ch 54; SL 1979, ch 167, § 1; SL 1990, ch 186; SL 2000, ch 117, § 1; SL 2024, ch 97, § 1.
25-6-11. Notice to Department of Social Services--Recommendation of department--Appearance.
Upon the filing of a petition for the adoption of a minor child the petitioner therein shall notify the Department of Social Services, by mailing to the department a copy of the petition. The petitioner also shall notify the department of the date fixed for hearing the petition, or mail to the department a copy of the order fixing the date of the hearing. The department shall make a recommendation as to the desirability of the adoption. The department may appear in any procedure the same as the party in interest, and may request a postponement of hearing on the petition in the event more time is needed for its investigation. This section only applies to a child in the custody of the department.
Source: SL 1939, ch 168, § 10; SDC Supp 1960, § 55.3715; SL 1979, ch 167, § 2; SL 1979, ch 168; SL 2007, ch 156, § 2.
25-6-12. Execution of consent and agreement by parties--Appearances at hearing.
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 a child and the child to be adopted shall appear in court or by other means as may be allowed by the court. All persons whose consent is necessary, except the child and the person adopting the child, unless a different means of appearance is allowed by the court, may appear by a person filing with the court a power of attorney, or 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.
Source: SDC 1939, § 14.0406; SL 1945, ch 47, § 1; SL 1947, ch 54; SL 1973, ch 165; SL 1989, ch 219; SL 1993, ch 213, § 117; SL 2012, ch 142, § 1.
25-6-13. Examination of witnesses and investigations by court--Order of adoption--Contents.
The circuit judge must examine all persons appearing separately and if satisfied from such examination and the report of the investigation that the child is suitable for adoption and the petitioning foster parent or parents financially able and morally fit to have the care and training of such child, that all requirements of the law have been met and that interests of the child will be promoted by the adoption, he must make an order declaring that the child thenceforth shall be the adopted child of the person adopting and shall be regarded and treated in all respects as the child of such person; and which order, among other things, shall contain the following:
(1) The full adoptive name, date of birth, sex, color or race, and place of birth, of the adopted child; and
(2) The full name, date of birth, citizenship, residence, color or race, birthplace, and occupation of both adoptive persons.
Source: SDC 1939, § 14.0406; SL 1945, ch 47, § 1; SL 1947, ch 54.
25-6-15. Access to court adoption records restricted--Notice of hearing to department or adoption agency--Disclosure not contested nor supported.
The files and records of the court in an adoption proceeding are not open to inspection or copy except:
(1) By the parents by adoption and their attorneys, representatives of the Department of Social Services, and the child upon reaching age eighteen, upon written request and proper proof of identification; or
(2) Upon order of the court expressly permitting inspection or copy.
The court may not order disclosure of any matter appearing in adoption records unless the Department of Social Services or the licensed adoption agency has received notice of the petition for disclosure of such information and of the date fixed for hearing the petition. The Department of Social Services or the licensed adoption agency shall neither contest nor support the petition for disclosure during its hearing.
Source: SL 1939, ch 168, § 11; SDC Supp 1960, § 55.3716; SL 1985, ch 208, § 4; SL 1986, ch 214, § 1; SL 1986, ch 215; SL 2023, ch 83, § 1.
25-6-15.1. Confidentiality of records.
All papers, records, and information pertaining to an adoption whether part of the permanent file in the Department of Social Services or in a child placement agency are confidential and may be disclosed only in accordance with §§ 25-6-15 to 25-6-15.3, inclusive.
Source: SL 1985, ch 208, § 1.
25-6-15.2. Nonidentifying information--Release to adoptive parent or adoptee.
Nonidentifying information, if known, shall be made available to the adoptive parent, or to the adoptee upon reaching the age of eighteen, upon written request and proper proof of identification. This information or any part thereof may be withheld only if it is of such a nature that it would tend to identify a biological relative of the adoptee.
For the purposes of §§ 25-6-15 to 25-6-15.3, inclusive, nonidentifying information is:
(1) The age of the natural parents at the time of the birth of the adoptee. However, this does not include the dates of birth of the parents;
(2) The heritage of the natural parents, which includes nationality, ethnic background, and race;
(3) The education, which shall be number of years of school completed by the natural parents at the time of the birth of the adoptee;
(4) The general physical appearance of the natural parents at the time of the birth of the adoptee in terms of height, weight, color of hair, eyes, skin, and other information of a similar nature;
(5) The talents, hobbies, and special interests of the natural parents;
(6) The existence of any other children born to either natural parent before the birth of the adoptee;
(7) Whether it was a voluntary or involuntary termination of parental rights;
(8) The religion of the natural parents;
(9) The occupation of natural parents in general terms;
(10) The health history of natural parents and blood relatives; and
(11) The relationship between the natural parents.
Source: SL 1985, ch 208, § 2.
25-6-15.3. Registry of consents to release of identifying information.
The Department of Social Services shall maintain a voluntary registry of those adoptees and natural 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 adoptee desires release of this identifying information after his death. A person who uses this voluntary register may revoke his consent at any time.
Source: SL 1985, ch 208, § 3.
25-6-16. Change of name by adopted child--Relationship with adoptive parent.
A child, when adopted, may take the family name of the person adopting. After adoption the two shall sustain towards each other the legal relation of parent and child and have all the rights and be subject to all the duties of that relation.
Source: SDC 1939, § 14.0407; SL 1943, ch 50; SL 1945, ch 47, § 2.
25-6-17. Rights and duties of natural parents terminated on adoption--Exceptions.
The natural parents of an adopted child are from the time of the adoption, relieved of all parental duties towards, and of all responsibility for the child so adopted, and have no right over it. Adoption of a child shall be final and unconditional except as otherwise provided by § 25-6-21. The natural parents of an adopted child shall retain no rights or privileges to have visitation or other post-adoption 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 pre-adoption agreement between the natural parent or parents and the adoptive parents. Any existing child support arrearages shall be addressed by the court in the order terminating parental rights. 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 in so far as the case gave circuit courts the option to order an open adoption or post-termination visitation. Post-adoption visitation is an extraordinary remedy and may be exercised only by the adoptive parents when in the child's best interests. This section does not apply to pre-adoption agreements entered into before July 1, 1997.
Source: SDC 1939, § 14.0407; SL 1943, ch 50; SL 1945, ch 47, § 2; SL 1997, ch 153, § 1; SL 2013, ch 119, § 20.
25-6-18. Petition for adoption of adult--Consent--Residence requirement.
An adult may adopt another adult by filing a petition requesting the adoption with the judge of the circuit court, together with an agreement in writing that the person being adopted shall be treated in all respects as a natural child of the petitioner. Written consent of the adopted person shall also be required. It shall be a further prerequisite that the person being adopted shall have lived in the home of the adoptive parent for a period of at least six months while the person being adopted was under twenty-one years of age, and this fact shall appear in the petition. If the person being adopted is the biological child of the adoptive parent, the prerequisite of living in the home of the adoptive parent during the person's minority is waived.
Source: SDC 1939, § 14.0406 as added by SL 1961, ch 216; SL 2015, ch 146, § 1; SL 2019, ch 122, § 1.
25-6-19. Order for adoption of adult.
Upon showing of good cause to the judge and if the documents required by § 25-6-18 are in proper form and show the proper facts, upon the filing of same the judge of the circuit court shall enter an order allowing the petition for adoption of an adult and declaring the adoption completed.
Source: SDC 1939, § 14.0406 as added by SL 1961, ch 216; SL 2019, ch 122, § 2.
25-6-20. Jurisdictional provisions applicable to adoption of adults--Effect of adoption--New birth certificate optional.
The provisions of §§ 25-6-6 to 25-6-8, inclusive, and of §§ 25-6-16 and 25-6-17 shall be applicable to adult adoption, but a new birth certificate shall be issued only if requested in the petition.
Source: SDC 1939, § 14.0406 as added by SL 1961, ch 216.
25-6-21. Cure of past irregularities in proceedings--Limitation of actions.
Except in any case involving fraud or any case controlled by the Indian Child Welfare Act, (25 U.S.C. §§ 1901 to 1963, inclusive), any proceeding for the adoption of a child commenced under chapter 25-6 shall be in all things legalized, cured, and validated one year after the proceeding is finalized. If any person has a claim or right arising from any adoption proceeding, that person shall initiate any action to enforce such right or claim within one year of the date when the proceeding is finalized unless a two year statute of limitations is imposed by the Indian Child Welfare Act, (25 U.S.C. §§ 1901 to 1963, inclusive), as amended to January 1, 2019.
Source: SL 1994, ch 200; SL 1996, ch 166; SL 2012, ch 143, § 1; SL 2019, ch 127, § 1.
25-6-22. Medical information on adoptee's birthparent available to adoptee or adoptee's legal guardian--Written request--Proof.
An adoptee or the adoptee's legal guardian having knowledge of a hospital or clinic with medical information of an adoptee's birth parent may provide a written request to the hospital or clinic for that information. The adoptee shall send a copy of the written request to the Department of Social Services in Pierre. The adoptee or the adoptee's legal guardian shall provide to the hospital or clinic proof that the person whose medical information is being sought is a birth parent of the adoptee seeking the information. When a hospital or clinic receives a written request and the proof as required by this section, it shall release the medical information to the Department of Social Services. Upon receipt of the medical information from the hospital or clinic, the department shall forward the information to the adoptee or the adoptee's legal guardian. A hospital's or clinic's compliance with this section may not be construed as a violation of subdivision 19-19-503(b) or § 34-12-15.
Source: SL 1994, ch 196, § 2.
25-6-23. Medical and social history form filed in adoption of abused or neglected child--Availability to adoptive parents and adoptee--Failure to comply.
When a child is adjudicated to be abused or neglected and a court enters a decree terminating parental rights, the parent shall complete a medical and social history form which shall be supplied by the Department of Social Services. When completed such form shall be filed with the court of the state where the adoption proceedings shall take place. A copy of the medical history portion of the completed form shall be made available to the adoptive parent prior to finalization of the adoption and to the adoptee upon reaching the age of eighteen years upon written request and proper proof of identification. No involuntary termination of parental rights heretofore or hereafter entered by any circuit court is void or inoperative due to failure to comply with this section.
Source: SL 1994, ch 196, § 3.
25-6-24. Due regard to be afforded Indian Child Welfare Act.
Due regard shall be afforded to the Indian Child Welfare Act (25 U.S.C. §§ 1901-1963), if that Act is applicable.
Source: SL 2004, ch 2, § 9, eff. Mar. 3, 2004; SL 2019, ch 127, § 2.
25-6-25. Effect of adoption orders of another jurisdiction or nation.
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.
Source: SL 2007, ch 157, § 1.
