Can I still collect child support if the child has my maiden name and not his fathers?
Modification of divorce decrees generally refers to a change in the order that was issued declaring the couple officially divorced. The divorce decree will often contain orders related to child custody and visitation, as well as division of assets, support payments, and other issues. Courts consider custody and child support issues as subject to change until the child involved reaches the age of majority. Proceedings to modify a divorce decree are commenced by filing a petition to modify in the original divorce action decree. Local court rules and state rules of civil procedure, which vary, govern petitions to modify. Typically, to modify child custody or visitation, the parent seeking a modification must show a "significant change of circumstances" that would support such a modification. It is possible, depending on state law, for child support to be modified at any time under the mandatory statewide child support guidelines. The court's continuing power to modify spousal support usually depends on the terms of the court's order.
The South Carolina legislature has established child support guidelines which establish the presumptive correct amount of child support. Deviation from the guidelines require a specific finding by the court that application of the guidelines would be unjust or inappropriate and such findings must be included in the judgment. In determining child support obligations, courts generally hold that each parent should contribute in accordance with his or her means. Child support is a mutual duty, although the primary caretaker of preschool children may not be required to obtain employment. All states have enacted some form of the Reciprocal Enforcement of Support Act. URESA is a uniform law designed to facilitate the interstate enforcement of support obligations. URESA allows an individual who is due alimony or child support from someone who lives in a different state to bring action for receipt of the payments in the home state. This measure circumvents such problems as expense and inconvenience inherent in traveling from one state to another in pursuit of support. In response to federal legislation, state laws regarding child support payments have become more severe. State laws can require employers to withhold child support from the paychecks of parents who are delinquent for one month. Employers are to be held responsible if they do not comply fully. State laws must provide for the imposition of liens against the property of those who owe support. Unpaid support must be deducted from federal and state income tax refunds. Expedited hearings are required in support cases.
Termination of parental rights is a court order that severs the rights, powers, privileges, immunities, duties and obligations between a parent and child. A termination of parental rights may be voluntary or involuntary. Even if the statutory grounds for termination of parental rights are established, the court need not terminate parental rights if such action is not in the child’s best interests. Such a decision may be made based upon, among other factors, abandonment by a parent, child abuse, unfitness of a parent, and other injuries to a child. The parent whose rights are sought to be terminated has certain due process rights, such as proper notice and a hearing. After the termination of parental rights, the child is placed with someone other than the parent whose rights are terminated, such as the other parent or a foster home. A parent whose rights are terminated is generally relieved of the obligation to pay child support, however, courts are reluctant to allow parents to avoid their child support obligations by waiving all parental rights to their children. Some courts disallow a parent to terminate parental rights in order to avoid child support payments.
The following are South Carolina statutes:
Care, custody and maintenance of children. In any action for divorce from the bonds of matrimony the court may at any stage of the cause, or from time to time after final judgment, make such orders touching the care, custody and maintenance of the children of the marriage and what, if any, security shall be given for the same as from the circumstances of the parties and the nature of the case and the best spiritual as well as other interests of the children may be fit,
equitable and just
Exclusive original jurisdiction of family court.
(A) Except as otherwise provided herein, the court shall have exclusive original jurisdiction and shall be the sole court for initiating action:
(1) Concerning any child living or found within the geographical limits of its jurisdiction:
(a) Who is neglected as to proper or necessary support or education as required by law, or as to medical, psychiatric, psychological or other care necessary to his well-being, or who is abandoned by his parent or other custodian;
(b) Whose occupation, behavior, condition, environment or associations are such as to injure or endanger his welfare or that of others;
(c) Who is beyond the control of his parent or other custodian;
(d) Who is alleged to have violated or attempted to violate any state or local law or municipal ordinance, regardless of where the violation occurred except as provided in §20-7-410;
(e) Whose custody is the subject of controversy, except in those cases where the law now gives other courts concurrent jurisdiction. In the consideration of these cases, the court shall have concurrent jurisdiction to hear and determine the issue of custody and support.
(2) For the treatment or commitment to any mental institution of a mentally defective or mentally disordered or emotionally disturbed child. Provided, that nothing herein is intended to conflict with the authority of probate courts in dealing with mental cases.
(3) Concerning any child seventeen years of age or over, living or found within the geographical limits of the court's jurisdiction, alleged to have violated or attempted to violate any State or local law or municipal ordinance prior to having become seventeen years of age and such person shall be dealt with under the provisions of this chapter relating to children.
(4) For the detention of a juvenile in a juvenile detention facility who is charged with committing a criminal offense when detention in a secure facility is found to be necessary pursuant to the standards set forth in Section 20-7-7210 and when the facility exists in, or is otherwise available to, the county in which the crime occurred.
(B) Whenever the court has acquired the jurisdiction of any child under seventeen years of age, jurisdiction continues so long as, in the judgment of the court, it may be necessary to retain jurisdiction for the correction or education of the child, but jurisdiction shall terminate when the child attains the age of twenty-one years. Any child who has been adjudicated delinquent and placed on probation by the court remains under the authority of the court only until the expiration of the specified term of his probation. This specified term of probation may expire before but not after the eighteenth birthday of the child.
Jurisdiction of family court in domestic matters.
(A) The family court has exclusive jurisdiction:
(1) To hear and determine matters which come within the provisions of the Uniform Reciprocal Enforcement of Support Act.
(2) To hear and determine actions: For divorce a vinculo matrimonii, separate support and maintenance, legal separation, and in other marital litigation between the parties, and for settlement of all legal and equitable rights of the parties in the actions in and to the real and personal property of the marriage and attorney's fees, if requested by either party in the pleadings.
(3) To hear and determine actions for and related to the adoption of children and adults.
(4) To hear and determine actions for termination of parental rights, whether such action is in connection with an action for adoption or apart therefrom.
(6) To hear and determine actions for the annulment of marriage.
(8) To hear and determine actions for changing names, whether in connection with a divorce or a separate support and maintenance action or apart therefrom.
(9) To hear and determine actions for the correction of birth records.
(10) To consent to the enlistment of a minor in the military service or the employment of a minor, if a minor has no one standing in loco parentis to do so.
(11) To hear and determine proceedings within the county to compel the support of a spouse or child, whether legitimate or illegitimate.
(12) For the protection, guardianship and disposition of neglected or dependent minors in proceedings properly brought before it for the support of a spouse or child.
(13) In all cases or proceedings within the county against persons charged with failure to obey an order of the court made pursuant to authority conferred by law.
(14) To order support of a spouse or child, or both, irrespective of whether they are likely to become a public charge.
(15) To include in the requirements of an order for support the providing of necessary shelter, food, clothing, care, medical attention, expenses of confinement, both before and after the birth, the expense of educating his or her child and other proper and reasonable expenses.
(16) To require of persons legally chargeable with the support of a spouse or child, who are possessed of sufficient means or who are able to earn such means, the payment weekly, or at other fixed periods, of a fair and reasonable sum for such support, or as a contribution toward such support, according to the means of the persons so chargeable.
(17) To make all orders for support run until further order of the court, except that orders for child support run until the child is eighteen years of age or until the child is married or becomes self-supporting, as determined by the court, whichever occurs first or to provide for child support past the age of eighteen years if the child is in high school and is making satisfactory progress toward completion of high school, not to exceed the nineteenth birthday unless exceptional circumstances are found to exist or unless there is a preexisting agreement or order to provide for child support past the age of eighteen years; and in the discretion of the court, to provide for child support past age eighteen where there are physical or mental disabilities of the child or other exceptional circumstances that warrant the continuation of child support beyond age eighteen for as long as the physical or mental disabilities or exceptional circumstances continue.
(18) To make an order for support of a husband or wife and children by his or her spouse, even though he or she may have left the home, in cases where the spouse's conduct or condition or his or her cruel or inhuman behavior made it unsafe or improper for the deserting spouse to continue to live with him or her. Such orders may require either spouse or any other party to the proceeding:
A. To stay away from the home or from the other or either spouse or children;
B. To permit either spouse to visit the children at stated periods;.
C. To abstain from offensive conduct against the other spouse or either of them, or against the children;
D. To give proper attention to the care of the home;
E. To refrain from acts of commission or omission that tend to make the home not a proper place for the other, or either spouse, or the children.
(19) In furtherance of the complete disposition of cases in the jurisdiction of the court, to bring in and make parties to any proceedings pending in the court any person or persons charged with or alleged to be interfering with the marital relationship between a husband and wife, in violation of the law or of the rights of either party to the marriage, or whose presence to the proceedings may be found necessary to a complete determination of the issues therein, or the relief to which the parties thereto, or any of them, may be entitled; and shall have the power to enjoin and restrain such interference and to punish for contempt of court violations of such injunctions or restraining orders.
(20) To award the custody of the children, during the term of any order of protection, to either spouse, or to any other proper person or institution.
(21) to determine the manner in which sums ordered paid for support shall be paid and applied, either to a person through the court, through the clerk of court, or through a centralized wage withholding system if required by federal statute or regulation.
(22) To require a person ordered to support another to give security by a written undertaking that he will pay the sums ordered by the court for such support and, upon the failure of any person to give such security by a written undertaking when required by order of the court, to punish such person for contempt and, when appropriate, to discharge such undertaking.
(23) In lieu of requiring an undertaking, to suspend sentence and place on probation a person who has failed to support another as required by law, and to determine the conditions of such probation and require them to be observed; to revoke such suspension of sentence and probation, where circumstances warrant it; and to discharge a respondent from probation.
(24) To release on probation prior to the expiration of the full term a person committed to jail for failure to obey an order of the court, where the court is satisfied that the best interest of the family and the community will be served thereby.
(25) To modify or vacate any order issued by the court.
(26) To order either before, during or after a hearing a mental, physical and psychiatric examination as circumstances warrant.
(27) To exclude the public from the courtroom in a proper case.
(28) To send processes or any other mandates in any matter in which it has jurisdiction into any county of the State for service or execution in like manner and with the same force and effect as similar processes or mandates of the circuit courts, as provided by law.
(29) To compel the attendance of witnesses.
(30) To make any order necessary to carry out and enforce the provisions of this chapter, and to hear and determine any questions of support, custody, separation, or any other matter over which the court has jurisdiction, without the intervention of a jury; however, the court may not issue an order which prohibits a custodial parent from moving his residence to a location within the State unless the court finds a compelling reason or unless the parties have agreed to such a prohibition.
(31) To require spouse to furnish support or to be liable for nonsupport, as provided above, if, at the time of the filing of the petition for supports:
(A) He is residing or domiciled in the county or when such area is the matrimonial domicile of the parties; or
(B) He is not residing or domiciled in the area referred to in subsection (A), but is found therein at such time, provided the petitioner is so residing or domiciled at such time; or
(C) He is neither residing or domiciled nor found in such area but, prior to such time and while so residing or domiciled, he shall have failed to furnish such support, or shall have abandoned his spouse or child and thereafter shall have failed to furnish such support, provided that the petitioner is so residing or domiciled at that time.
(32) The petitioner need not continue to reside or be domiciled in such area where the cause of action arose, as provided in subitems (A) and (B) of item (31) of this section, if the conduct of the respondent has been such as to make it unsafe or improper for her to so reside or be domiciled, and the petitioner may bring action in the court of the jurisdiction wherein she is residing or has become domiciled.
(33) To order periods of visitation for the grandparents of a minor child where either or both parents of the minor child is or are deceased, or are divorced, or are living separate and apart in different habitats regardless of the existence of a court order or agreement, and upon a written finding that the visitation rights would be in the best interests of the child and would not interfere with the parent/child relationship. In determining whether to order visitation for the grandparents, the court shall consider the nature of the relationship between the child and his grandparents prior to the filing of the petition or complaint.
(34) To order custody with all rights of guardianship as described in 21-21-50.
(35) To hear and determine actions for protection from domestic abuse.
(36) To issue orders compelling public officials and officers to perform official acts under Chapter 7, Title 20, the Children's Code, Chapter 4, Title 20, Protection from Domestic Abuse Act, and Chapter 29, Title 43, Protective Services for Developmentally Disabled and Senile Persons.
(37) To appoint guardians ad litem in actions pertaining to custody or visitation pursuant to Section 20-7-1545.
.(38) To hear and determine an action where either party in his or her complaint, answer, counterclaim, or motion for pendente lite relief prays for the allowance of suit money pendente lite and permanently. In this action the court shall allow a reasonable sum for the claim if it appears well-founded. Suit money, including attorney's fees, may be assessed for or against a party to an action brought in or subject to the jurisdiction of the family court. An award of temporary attorney's fees or suit costs must not be stayed by an appeal of the award
(39) To require the parties to engage in court-mandated mediation pursuant to Family Court Mediation Rules or to issue consent orders authorizing parties to engage in any form of alternate dispute resolution which does not violate the rules of the court or the laws of South Carolina; provided however, the parties in consensual mediation must designate any arbiter or mediator by unanimous consent subject to the approval of the court.
(40) To require the parent of a child brought before the court for adjudication of a delinquency matter and agencies providing services to the family to cooperate and participate in a plan adopted by the court to meet the needs and best interests of the child and to hold a parent or agency in contempt for failing to cooperate and participate in the plan adopted by the court. In imposing its contempt powers the Family Court must take into consideration mitigating circumstances including the parent's or legal custodian's participation in the treatment plan, the level of services being offered by the lead and participating agencies, and the level of cooperation by the lead and participating agencies as the court may deem appropriate.
(41) To order a person required to pay support under a court order being enforced under Title IV-D of the Social Security Act who is unemployed or underemployed and who is the parent of a child receiving AFDC benefits to participate in an employment training program or public service employment pursuant to regulations promulgated by the department. The Division of Child Support Enforcement of the State Department of Social Services also has jurisdiction under this item in cases under Title IV-D of the Social Security Act brought pursuant to Article 32, Chapter 7, Title 20 of the 1976 Code.
(42) To order joint or divided custody where the court finds it is in the best interests of the child.
(43) To enforce an administrative subpoena or subpoena duces tecum issued by the Department of Social Services pursuant to Section 20-7-9575 and to enforce fines assessed by the department pursuant to Sections 20-7-9575, 43-5-595 (C), and 43-5-598 (G).
(44) To order sibling visitation where the court finds it is in the best interest of the children.
(45) To hear and determine actions concerning control of the person of a minor, including guardianship of the minor.
(46) To order custody of a minor child to the de facto custodian under the circumstances specified in Section 20-7-1540.
(B) Notwithstanding another provision of law, the family court and the probate court have concurrent jurisdiction to hear and determine matters relating to paternity, common-law marriage, and interpretation of marital agreements; except that the concurrent jurisdiction of the probate court extends only to matters dealing with the estate, trust, and guardianship and conservatorship actions before the probate court.
Venue of actions in the family courts shall be in such county as may be provided by law. Trial of such actions shall be in such county unless a change of venue is granted as provided by law. § 20-7-840. Persons who may file petition for support. Any interested persons may file a petition to the court requesting the court to order persons legally chargeable to provide support as required by law.
Child support proceedings; amount of award.
(A) In any proceeding for the award of child support, there is a rebuttable presumption that the amount of the award which would result from the application of the guidelines required under Section 43-5-580 (b) is the correct amount of child support to be awarded. A different amount may be awarded upon a showing that application of the guidelines in a particular case would be unjust or inappropriate. When the court orders a child support award that varies significantly from the amount resulting from the application of the guidelines, the court shall make specific, written findings of those facts upon which it bases its conclusion supporting that award. Findings that rebut the guidelines must state the amount of support that would have been required under the guidelines and include a justification of why the order varies from the guidelines.
(B) Application of these guidelines to an existing child support order, in and of itself, is not considered a change in circumstances for the modification of that existing order, except in a Title IV-D case.
(C) The court shall consider the following factors which may be possible reasons for deviation from the guidelines or may be used in determining whether a change in circumstances has occurred which would require a modification of an existing order:
(1) educational expenses for the child or children or the spouse, to include those incurred for private, parochial, or trade schools, other secondary schools, or post-secondary education where there is tuition or related costs;
(2) equitable distribution of property;
(3) consumer debts;
(4) families with more than six children;
(5) unreimbursed extraordinary medical or dental expenses for the noncustodial or custodial parent;
(6) mandatory deduction of retirement pensions and union fees;
(7) support obligations for other dependents living with the noncustodial parent or noncourt ordered child support from another relationship;
(8) child-related unreimbursed extraordinary medical expenses;
(9) monthly fixed payments imposed by a court or operation of law;
(10) significant available income of the child or children;
(11) substantial disparity of income in which the noncustodial parent's income is significantly less than the custodial parent's income, thus making it financially impracticable to pay what the guidelines indicate the noncustodial parent should pay;
(12) alimony. Because of their unique nature, lump sum, rehabilitative, reimbursement, or any other alimony that the court may award, may be considered by the court as a possible reason for deviation from these guidelines;
(13) agreements reached between parties. The court may deviate from the guidelines based on an agreement between the parties if both parties are represented by counsel or if, upon a thorough examination of any party not represented by counsel, the court determines the party fully understands the agreement as to child support. The court still has the discretion and the independent duty to determine if the amount is reasonable and in the best interest of the child or children.
(D) Pursuant to Section 43-5-580 (b), the department shall promulgate regulations which establish child support guidelines as a rebuttable presumption. The department shall review these regulations at least once every four years to ensure that their application results in appropriate child support award amounts. 20-7-860. Summons or rule to show cause concerning support; hearing. The court shall in a proper case issue a summons or rule to show cause, requiring the respondent to appear at the court at a time and place named, to show cause why the order for support prayed for by the petition shall not be granted. A summons or rule to show cause shall not be refused without giving the petitioner an opportunity to present witnesses and be heard by the court.
Notice of hearing in child support and alimony arrearage cases.
(A) If pursuant to family court rule, the clerk of court issues a rule to show cause in a case of child support or periodic alimony arrearage, the clerk also shall provide written notice to the party owed the support or alimony. The notice to the party owed support or alimony must:
(1) be provided by the court at least five days prior to the hearing;
(2) be sent by first class delivery through the United States Postal Service and addressed to the party's last address on file with the court; and (3) include the date, time, and place the party in arrears has been ordered to appear.
(B) The mailing provided for in subsection (A) is considered sufficient notice of the hearing to the party owed the support or alimony.
(C) The clerk of court shall place in the case file a copy of the notice sent to the party owed support or alimony with the time and date stamped on the copy.
(D) This section does not apply to a rule to show cause in a case of child support or periodic alimony arrearage issued by a clerk of court pursuant to family court rule if the party owed the support or alimony is represented by the Department of Social Services.
§ 20-7-870. Authority to issue warrant upon refusal to obey court order for support. Where a respondent shall neglect or refuse to obey an order for support or upon agreement signed by the respondent and approved by the court, and the court is satisfied thereof by competent proof, it may, with or without notice, issue a warrant to commit the respondent to jail until the order is obeyed or until the respondent is discharged by law.
Authority of Family Court to enforce decrees, judgments, or orders regarding child support; authority to hold arrearages in abeyance. The family court has the authority to enforce the provisions of any decree, judgment, or order regarding child support of a court of this State, including cases with jurisdiction based on the revised Uniform Reciprocal Enforcement of Support Act, provided that personal jurisdiction has been properly established. This authority includes the right to modify any such decree, judgment, or order for child support as the court considers necessary upon a showing of changed circumstances. No such modification is effective as to any installment accruing prior to filing and service of the action for modification. Additionally, the family court has the right to hold any arrearage in child support in abeyance.
Enforcement or modification of orders of other courts; transfer of cases. Any family court has jurisdiction and authority to enforce or modify an order or decree of any other court respecting support of wife or children subject to the limitations contained in § 20-7-933, custody of children and visitation upon an order from the court of original jurisdiction, transferring jurisdiction to the family court. Petition may be made by either party to the original action to transfer the cause to the family court of the county where the other party resides, or petition may be made by the family court of the county to which transfer is sought, if it appears that the transfer will serve the ends of justice. The court of original jurisdiction may transfer the cause in its discretion.
The tribunals of this State are the family court and the support enforcement agency. For the purposes of continuing exclusive jurisdiction under this subarticle, the tribunals of this State have concurrent jurisdiction to establish, modify, and enforce child support in cases being administered pursuant to Title IV-D of the Social Security Act.
(A) In a proceeding to establish or enforce a support order or to determine parentage, a tribunal of this State may exercise personal jurisdiction over a nonresident individual or the individual's guardian or conservator if:
(1) the individual is personally served with notice and a summons within this State;
(2) the individual submits to the jurisdiction of this State by consent, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction;
(3) the individual resided with the child in this State;
(4) the individual resided in this State and provided prenatal expenses or support for the child;
(5) the child resides in this State as a result of the acts or directives of the individual;
(6) the individual engaged in sexual intercourse in this State and the child may have been conceived by that act of intercourse;
(7) the individual asserted parentage in the putative father registry maintained in this State; or
(8) there is any other basis consistent with the constitutions of this State and the United States for the exercise of personal jurisdiction.
(B) The bases of personal jurisdiction set forth in subsection (A) or in any other law of this State may not be used to acquire personal jurisdiction for a tribunal of the State to modify a child support order of another state unless the requirements of Section 20-7-1152 or 20-7-1155.1 are met.
Personal jurisdiction acquired by a tribunal of this State in a proceeding under this subarticle or other law of this State relating to a support order continues as long as a tribunal of this State has continuing, exclusive jurisdiction to modify its order or continuing jurisdiction to enforce its order as provided by Sections 20-7-1000, 20-7-1005, and 20-7-1024.
(A) A tribunal of this State that has issued a child-support order consistent with the law of this State has and shall exercise continuing, exclusive jurisdiction to modify its child-support order if the order is the controlling order and:
(1) at the time of the filing of a request for modification this State is the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued; or
(2) even if this State is not the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued, the parties consent in a record or in open court that the tribunal of this State may continue to exercise jurisdiction to modify its order.
(B) A tribunal of this State that has issued a child-support order consistent with the law of this State may not exercise continuing, exclusive jurisdiction to modify the order if:
(1) all of the parties who are individuals file consent in a record with the tribunal of this State that a tribunal of another state that has jurisdiction over at least one of the parties who is an individual or that is located in the state of residence of the child may modify the order and assume continuing, exclusive jurisdiction; or
(2) its order is not the controlling order.
(C) If a tribunal of another state has issued a child-support order pursuant to the Uniform Interstate Family Support Act or a law substantially similar to that act which modifies a child-support order of a tribunal of this State, tribunals of this State shall recognize the continuing, exclusive jurisdiction of the tribunal of the other state.
(D) A tribunal of this State that lacks continuing, exclusive jurisdiction to modify a child-support order may serve as an initiating tribunal to request a tribunal of another state to modify a support order issued in that state.
(E) A temporary support order issued ex parte or pending resolution of a jurisdictional conflict does not create continuing, exclusive jurisdiction in the issuing tribunal.
(A) A tribunal of this State that has issued a child-support order consistent with the law of this State may serve as an initiating tribunal to request a tribunal of another state to enforce:
(1) the order if the order is the controlling order and has not been modified by a tribunal of another state that assumed jurisdiction pursuant to the Uniform Interstate Family Support Act; or
(2) a money judgment for arrears of support and interest on the order accrued before a determination that an order of another state is the controlling order.
(B) A tribunal of this State having continuing jurisdiction over a support order may act as a responding tribunal to enforce the order.
(A) Except as otherwise provided in this subarticle, this part applies to all proceedings under this subarticle.
(B) An individual petitioner or a support enforcement agency may initiate a proceeding authorized under this subarticle by filing a petition in an initiating tribunal for forwarding to a responding tribunal or by filing a petition or a comparable pleading directly in a tribunal of another state which has or can obtain personal jurisdiction over the respondent.
(A) When a responding tribunal of this State receives a petition or comparable pleading from an initiating tribunal or directly pursuant to Section 20-7-1025 (B), it shall cause the petition or pleading to be filed and notify the petitioner where and when it was filed.
(B) A responding tribunal of this State, to the extent not prohibited by other law, may do one or more of the following:
(1) issue or enforce a support order, modify a child-support order, determine the controlling child-support order, or to determine parentage;
(2) order an obligor to comply with a support order, specifying the amount and the manner of compliance;
(3) order income withholding;
(4) determine the amount of any arrearages, and specify a method of payment;
(5) enforce orders by civil or criminal contempt, or both;
(6) set aside property for satisfaction of the support order;
(7) place liens and order execution on the obligor's property;
(8) order an obligor to keep the tribunal informed of the obligor's current residential address, telephone number, employer, address of employment, and telephone number at the place of employment;
(9) issue a bench warrant for an obligor who has failed after proper notice to appear at a hearing ordered by the tribunal and enter the bench warrant in any local and state computer systems for criminal warrants;
(10) order the obligor to seek appropriate employment by specified methods;
(11) award reasonable attorney's fees and other fees and costs; and
(12) grant any other available remedy.
(C) A responding tribunal of this State shall include in a support order issued under this subarticle, or in the documents accompanying the order, the calculations on which the support order is based.
(D) A responding tribunal of this State may not condition the payment of a support order issued under this subarticle upon compliance by a party with provisions for visitation.
(E) If a responding tribunal of this State issues an order under this subarticle, the tribunal shall send a copy of the order to the petitioner and the respondent and to the initiating tribunal, if any.
(F) If requested to enforce a support order, arrears, or judgment or modify a support order stated in a foreign currency, a responding tribunal of this State shall convert the amount stated in the foreign currency to the equivalent amount in dollars under the applicable official or market exchange rate as publicly reported.
(A) The physical presence of a nonresident party who is an individual in a tribunal of this State is not required for the establishment, enforcement, or modification of a support order or the rendition of a judgment determining parentage.
(B) An affidavit, a document substantially complying with federally mandated forms, or a document incorporated by reference in any of them, which would not be excluded under the hearsay rule if given in person, is admissible in evidence if given under penalty of perjury by a party or witness residing in another state.
(C) A copy of the record of child-support payments certified as a true copy of the original by the custodian of the record may be forwarded to a responding tribunal. The copy is evidence of facts asserted in it, and is admissible to show whether payments were made.
(D) Copies of bills for testing for parentage, and for prenatal and postnatal health care of the mother and child, furnished to the adverse party at least ten days before trial, are admissible in evidence to prove the amount of the charges billed and that the charges were reasonable, necessary, and customary.
(E) Documentary evidence transmitted from another state to a tribunal of this State by telephone, telecopier, or other means that do not provide an original record may not be excluded from evidence on an objection based on the means of transmission.
(F) In a proceeding under this subarticle, a tribunal of this State shall permit a party or witness residing in another state to be deposed or to testify under penalty of perjury by telephone, audiovisual means, or other electronic means at a designated tribunal or other location in that state. A tribunal of this State shall cooperate with tribunals of other states in designating an appropriate location for the deposition or testimony.
(G) If a party called to testify at a civil hearing refuses to answer on the ground that the testimony may be self-incriminating, the trier of fact may draw an adverse inference from the refusal.
(H) A privilege against disclosure of communications between spouses does not apply in a proceeding under this subarticle.
(I) The defense of immunity based on the relationship of husband and wife or parent and child does not apply in a proceeding under this subarticle.
(J) A voluntary acknowledgment of paternity, certified as a true copy, is admissible to establish parentage of the child.
A tribunal of this State may:
(1) request a tribunal of another state to assist in obtaining discovery; and
(2) upon request, compel a person over whom it has jurisdiction to respond to a discovery order issued by a tribunal of another state.
Declaration of purpose.
The purpose of this subarticle is to establish procedures for the reasonable and compassionate termination of parental rights where children are abused, neglected, or abandoned in order to protect the health and welfare of these children and make them eligible for adoption by persons who will provide a suitable home environment and the love and care necessary for a happy, healthful, and productive life.
Jurisdiction of Family Court.
The family court has exclusive jurisdiction over all proceedings held pursuant to this subarticle. For purposes of this subarticle jurisdiction may continue until the child becomes eighteen years of age, unless emancipated earlier.
Procedure for filing petition for termination of parental rights.
(A) A petition seeking termination of parental rights may be filed by the Department of Social Services or any interested party.
(B) The department may file an action for termination of parental rights without first seeking the court's approval of a change in the permanency plan pursuant to Section 20-7-766 and without first seeking an amendment of the placement plan pursuant to Section 20-7-764.
Content of petition for termination of parental rights.
A petition for the termination of parental rights must set forth the:
(1) basis of the court's jurisdiction;
(2) name, sex, date, and place of birth of the child, if known;
(3) name and address of the petitioner and the petitioner's relationship to the child;
(4) names, dates of birth, and addresses of the parents, if known;
(5) names and addresses of a:(i) legal guardian of the child; or(6) grounds on which termination of parental rights are sought and the underlying factual circumstances.
(ii) person or agency having legal custody of the child; and
Filing of summons and petition; service. A summons and petition for termination of parental rights must be filed with the court and served on:
(1) the child;
(2) the parents of the child; and
(3) an agency with placement or custody of the child.
Representation by counsel; appointment of guardian ad litem.
(A) Parents, guardians, or other persons subject to a termination of parental rights action are entitled to legal counsel. Those persons unable to afford legal representation must be appointed counsel by the family court, unless the defendant is in default.
(B) A child subject to any judicial proceeding under this subarticle must be appointed a guardian ad litem by the family court. If a guardian ad litem who is not an attorney finds that appointment of counsel is necessary to protect the rights and interests of the child, an attorney must be appointed. If the guardian ad litem is an attorney, the judge must determine on a case-by-case basis whether counsel is required for the guardian ad litem. However, counsel must be appointed for a guardian ad litem who is not an attorney in any case that is contested.
Termination of parental rights. The family court may order the termination of parental rights upon a finding of one or more of the following grounds and a finding that termination is in the best interest of the child:
(1) The child or another child in the home has been harmed as defined in Section 20-7-490, and because of the severity or repetition of the abuse or neglect, it is not reasonably likely that the home can be made safe within twelve months. In determining the likelihood that the home can be made safe, the parent's previous abuse or neglect of the child or another child in the home may be considered;
(2) The child has been removed from the parent pursuant to Section 20-7-610 or Section 20-7-736, has been out of the home for a period of six months following the adoption of a placement plan by court order or by agreement between the department and the parent, and the parent has not remedied the conditions which caused the removal;
(3) The child has lived outside the home of either parent for a period of six months, and during that time the parent has wilfully failed to visit the child. The court may attach little or no weight to incidental visitations, but it must be shown that the parent was not prevented from visiting by the party having custody or by court order. The distance of the child's placement from the parent's home must be taken into consideration when determining the ability to visit;
(4) The child has lived outside the home of either parent for a period of six months, and during that time the parent has wilfully failed to support the child. Failure to support means that the parent has failed to make a material contribution to the child's care. A material contribution consists of either financial contributions according to the parent's means or contributions of food, clothing, shelter, or other necessities for the care of the child according to the parent's means. The court may consider all relevant circumstances in determining whether or not the parent has wilfully failed to support the child, including requests for support by the custodian and the ability of the parent to provide support;
(5) The presumptive legal father is not the biological father of the child, and the welfare of the child can best be served by termination of the parental rights of the presumptive legal father;
(6) The parent has a diagnosable condition unlikely to change within a reasonable time including, but not limited to, alcohol or drug addiction, mental deficiency, mental illness, or extreme physical incapacity, and the condition makes the parent unlikely to provide minimally acceptable care of the child. It is presumed that the parent's condition is unlikely to change within a reasonable time upon proof that the parent has been required by the department or the family court to participate in a treatment program for alcohol or drug addiction, and the parent has failed two or more times to complete the program successfully or has refused at two or more separate meetings with the department to participate in a treatment program;
(7) The child has been abandoned as defined in Section 20-7-490 (21);
(8) The child has been in foster care under the responsibility of the State for fifteen of the most recent twenty-two months; or
(9) The physical abuse of a child of the parent resulted in the death or admission to the hospital for in-patient care of that child and the abuse is the act for which the parent has been convicted of or pled guilty or nolo contendere to committing, aiding, abetting, conspiring to commit, or soliciting an offense against the person as provided for in Title 16, Chapter 3, criminal domestic violence as defined in Section 16-25-20, criminal domestic violence of a high and aggravated nature as defined in Section 16-25-65, or the common law offense of assault and battery of a high and aggravated nature.
(10) A parent of the child pleads guilty or nolo contendere to or is convicted of the murder of the child's other parent.
(11) conception of a child as a result of the criminal sexual conduct of a biological parent, as found by a court of competent jurisdiction, is grounds for terminating the rights of that biological parent, unless the sentencing court makes specific findings on the record that the conviction resulted from consensual sexual conduct where neither the victim nor the actor were younger than fourteen years of age nor older than eighteen years of age at the time of the offense.
Permanency of order terminating parental rights; adoption; additional permanency hearings.
(A) If the court finds that a ground for termination, as provided for in Section 20-7-1572, exists, the court may issue an order forever terminating parental rights to the child. Where the petitioner is an authorized agency, the court shall place the child in the custody of the petitioner or other child-placing agency for adoption and shall require the submission of a plan for permanent placement of the child within thirty days after the close of the proceedings to the court and to the child's guardian ad litem. Within an additional sixty days the agency shall submit a report to the court and to the guardian ad litem on the implementation of the plan. The court, on its own motion, may schedule a hearing to review the progress of the implementation of the plan.
(B) If the court finds that no ground for termination exists and the child is in the custody of the Department of Social Services, the order denying termination must specify a new permanent plan for the child or order a hearing on a new permanent plan.
(C) If the court determines that an additional permanency hearing is not needed, the court may order:
(1) the child returned to the child's parent if the parent has counterclaimed for custody and the court determines that the return of the child to the parent would not cause an unreasonable risk of harm to the child's life, physical health or safety, or mental well-being. The court may order a specified period of supervision and services not to exceed twelve months.
(2) a disposition provided for in Section 20-7-766 (E) if the court determines that the child should not be returned to a parent.
(D) If the court determines that an additional permanency hearing is required, the court's order shall schedule a permanency hearing to be held within fifteen days of the date the order is filed. The court's order must be sufficient to continue jurisdiction over the parties without any need for filing or service of pleadings by the department. The permanency hearing must be held before the termination of parental rights trial judge if reasonably possible. At the hearing, the department shall present a proposed disposition and permanent plan in accordance with Section 20-7-766. No supplemental report may be required. The hearing and any order issuing from the hearing shall conform to Section 20-7-766. If the court approves retention of the child in foster care pursuant to Section 20-7-766 (E)(iii), any new plan for services and placement of the child must conform to the requirements of Section 20-7-764. Section 20-7-764 requires the plan to address conditions that necessitated removal of the child, but the plan approved pursuant to this subsection shall address conditions that necessitate retention of the child in foster care.
Effect of order terminating parental rights; rights of inheritance.
(A) An order terminating the relationship between parent and child under this subarticle divests the parent and the child of all legal rights, powers, privileges, immunities, duties, and obligations with respect to each other, except the right of the child to inherit from the parent. A right of inheritance is terminated only by a final order of adoption.
(B) The relationship between a parent and child may be terminated with respect to one parent without affecting the relationship between the child and the other parent.
Construction of provisions; interest of child as prevailing. This sub-article must be liberally construed in order to ensure prompt judicial procedures for freeing minor children from the custody and control of their parents by terminating the parent-child relationship. The interests of the child shall prevail if the child's interest and the parental rights conflict.