Family Law

Divorce | Custody | Adoption | Assisted Reproductive Technology | Grandparents

Divorce

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Custody

Adoption

Adoption is a way for many to build or grow their families. The choices for adoption can be overwhelming. Contact Hawthorne Merrill Law to review discuss the options and determine what’s best for you.

Domestic Adoptions

Domestic adoptions are adoptions that take place in the United States. They occur when a couple from the United States adopts a child born in the United States. Domestic adoptions can be facilitated through a public agency, a private agency, or independently without an agency. We can work with you to figure out what type of adoption is best for you. We can also work with you to finalize your adoption once you have already begun working with any agency.

For families wishing to adopt domestically, Jane will advise clients on their legal rights and responsibilities and will provide an overview of the entire process, including the home study process and the difference between private agency adoption, public agency adoption and independent adoption. Jane works with clients at all stages for the process from initial consultations, searching families, legal issues, finalizations and ICPC. She is retained at various stages of the process to assist clients based on their needs at the time.

State laws vary regarding when the birth parents may consent to the adoption and whether they can revoke that consent within a certain amount of time. In most states independent adoption is permissible, but it is prohibited in some states. It is important to keep in mind that adoption is governed by state laws that differ as to whether attorneys may facilitate adoptions, whether independent adoptions are permissible, the amount of time a birth parent has to revoke their consent, compensation an adoptive parent may provide for a birth parent’s expenses, and the amount of time it takes for an adoption to be finalized.

Contact Hawthorne Merrill Law if you have questions about this process and how it might work for your family.

*** Jane Merrill is only licensed to practice law in South Carolina. Should you need legal advice regarding another state’s laws, Jane will direct you to an appropriately licensed attorney in that state.

Pregnant? Birth Parent Representation

Birth parent representation means representing birth parents that choose to place their child for adoption. Jane works with birth parents to make sure they are fully informed of their rights and options prior to consenting to adoption and signing the necessary paperwork.

Second Parent Adoption

Second parent adoptions are sometimes required when unmarried partners wish to co-parent a child. A second parent adoption may also be required when a child is conceived through some types of assisted reproductive technology.

Contact Hawthorne Merrill Law if you have questions about this process and how it might work for your family.

Stepparent Adoption

Stepparent adoptions occur when the biological parent has married someone they wish to be the legal parent of his or her child. The biological parent of that child or children must have his or her parental rights terminated or ended in order for the new stepparent to become the legal parent.

This process is sometimes done when the biological parent consents to the adoption and voluntarily signs a Consent to Adoption form so that his or her parental rights can be terminated and the stepparent adoption can proceed. If the biological parent cannot be found to consent to the proposed adoption, or if he or she is opposed to it, there is a process to terminate his or her parental rights without that parent’s consent. If the whereabouts of the parent are not known, it may be possible to proceed through publishing notice of the proposed adoption to give the biological parent notice of the proceeding and of the right to have his or her day in Court to contest the termination of rights. If he or she fails to respond and appear in Court at the designated time and object, his or her parental rights can be terminated or ended by the Court.

If the person’s whereabouts are known and he or she contests the adoption and termination of parental rights, there may be a trial and the judge decides if parental rights should be terminated without consent. However, it can be a very costly and uncertain process that is best discussed in detail with an attorney.

Contact Hawthorne Merrill Law if you have questions about this process and how it would work in your family’s situation.

Relative Adoption

Relative adoption may occur for different reasons, such as the death of a parent or a parent’s inability to care for a child. If either or both biological parents of that child or children are living, parental rights must be terminated so the relative may adopt.

Contact Hawthorne Merrill Law if you have questions about this process and how it might work for your family.

Independent/Direct Placement Adoption

With independent adoption, prospective adoptive parents and birth parents create an adoption plan without an agency. Prospective adoptive families may retain an attorney to prepare them for the adoption process. Birth parents considering adoption may contact an adoption attorney for more information about adoption and to assist them in selecting an adoptive family. The two families often learn of each other through family members, friends, neighbors, co-workers and other “networking” avenues. Some adoptive families advertise in newspapers or online to let people know that they want to adopt a child.

Once the adoptive parents and birth parents find each other, they create an adoption plan that outlines how the adoption process will go. It is important that the adoptive parents and birth parents have separate attorneys. After the child is born, the birth parents execute a consent to the adoption. The method for obtaining this consent varies by state.

In most states independent adoption is permissible, but it is prohibited in some states. It is important to keep in mind that adoption is governed by state laws that differ as to whether attorneys may facilitate adoptions, whether independent adoptions are permissible, the amount of time a birth parent has to revoke their consent, compensation an adoptive parent may provide for a birth parent’s expenses, and the amount of time it takes for an adoption to be finalized.

Contact Hawthorne Merrill Law if you have questions about this process and how it might work for your family.

Private Agency Adoption

Each private adoption agency will have its own policies, rules and requirements for families who seek to adopt a child through that agency and for its home study requirements. Private adoption agencies may allow a birth mother to choose the adoptive parents and the degree of openness she requests between the families, if any. From the perspective of birth parents, an agency adoption does not differ too much from that of an independent or private placement adoption. From the perspective of adoptive parents, the policies and costs of working with an agency can be different from those involved in an independent private placement adoption.

It is helpful to seek the guidance of an attorney no matter what type of adoption you are choosing in order to understand the process and discuss the legal issues involved. Jane offers assistance in reviewing the different types of adoption programs that are available and in deciding which would be best suited for your family.

Contact Hawthorne Merrill Law if you have questions about this process and how it might work for your family.

Public Agency Adoption

The agency involved in public agency adoptions is social services, which is the government entity responsible for foster children and has different names in various states. In South Carolina, it is the Department of Social Services. There are four regional adoption offices in South Carolina. In public agency adoptions, the prospective adoptive child is usually in foster care. When a child is placed in foster care, the birth parents have a certain amount of time to do what is necessary to reunify with their children. When reunification does not occur, a goal in the child’s case may change to adoption and parental rights may be terminated. The prospective adoptive parent in these cases may be a foster parent, relative, or a family seeking to adopt. If parental rights are terminated, the agency consents to the adoption. If parental rights are not terminated and the birth parents do not consent, the court will hold an evidentiary hearing to determine whether the adoption should move forward. Adoptive parents will have to go through a home study as part of the process. Adoptive parents may receive a financial subsidy if the adoption is finalized.

Contact Hawthorne Merrill Law if you have questions about this process and how it might work for your family.

Assisted Reproductive Technology (ART)

As medical technology advances more viable opportunities for Assisted Reproductive Technology (ART) treatments and procedures have become available to families. Although the sperm donation process has been available for years, in the last decade, donation of ova and embryo donation have also become available and success rates at some fertility clinics are quite high. It is increasingly common today to have a couple conceive a child by using donor egg or donor sperm which are united in vitro to form an embryo that is then transferred to the intended mother’s uterus such that a pregnancy is achieved. The intended mother then gives birth to a child to whom she may or may not be biologically related to and she intends to parent that child. Also, the same basic medical processes can be used to achieve a pregnancy in a woman acting as a gestational surrogate such that she gives birth to a child to whom she is not biologically related for the benefit of the intended parents. People build families in different ways. Individuals wishing to build a family through ART (assisted reproductive technology) will encounter a number of legal, medical and social issues in the process of building their family.

Assisted Reproductive Technology services are growing in demand because they offer individuals, including lesbian and gay individuals (LGBT), seeking to achieve parenthood additional choices to help achieve that dream. Hawthorne Merrill Law works with a diverse clientele including non-traditional and traditional families. Cases are evaluated on an individual basis free of arbitrary requirements.

Along with legal counseling unique to each situation, Jane provides the following services:

Educate and advise parties on rights and obligations under agreements or contracts
Review any and all existing documents and/or contracts
Draft new documents and/or contracts
Negotiate the terms of documents and/or contracts
Assist surrogates, individuals and couples with referrals to agencies, physicians, psychologist, genetic counselors, estate planner, insurance agents, and accountants
Facilitate communication and correspondence between parties, including intended parents, surrogates, donors, agencies, and physicians
Assist with coordinating administrative functions
Provide legal service necessary for establishing legal rights to the child or children

The information below provides more about assisted reproductive technology options with which Hawthorne Merrill Law can assist.

Egg and Sperm Donor Legal Services

Egg and sperm donation enables Intended Parents experiencing infertility or other medical problems to build their family. More than forty states regulate the donation of sperm, but significantly fewer states have laws regarding egg donation and they vary greatly in scope. If you are interested in using a known donor egg or sperm, it is critical that you have a detailed contract addressing the rights, responsibilities and relationship of each party, parental rights or obligations and the relinquishment of such rights as related to any resulting embryos or children, the donation procedures, medical risk, confidentiality, and the timing and amount of any compensation.

Egg donation has primarily been an option used by women with diminished ovarian reserve or women over 40 years old with reduced fertility and a poorer chance of success after IVF. An egg donor is defined as a woman normally under the age of 35 who donates healthy eggs using In-Vitro Fertilization (IVF) process. A thorough evaluation or screening of each potential egg donor is critically important, whether the donor is anonymous or known to the recipient. This screening is designed to protect all parties involved (the donor, the recipient and the resulting child or children).

If you are considering sperm or egg donation, contact Hawthorne Merrill Law to discuss your options before entering into a contract.

Embryo Donations and Adoption

Individuals that have undergone IVF will sometimes have unused pre-embryos that will be cryopreserved for future use or because the Intended Parents do not wish to destroy them. These embryos may be donated to (or less frequently, adopted by) an Intended Parent. Although state laws vary, the consensus among courts is that embryos generally fall into an “interim” classification due to their potential to develop into human life. Therefore, those that maintain surplus cryopreserved embryos should address the access, control and disposition those embryos in an agreement and a Will in the event of a divorce or death, including death or divorce during IVF treatment, specifically addressing permissible uses, if any, of the embryos after a divorce or death. Other issues to also consider are the time period for use, whether an after born child inherits, and other parameters of consent.

If you are considering embryo donation or adoption, contact Hawthorne Merrill Law to discuss your options before entering into a contract.

Cryopreserved Embryo Agreements

Individuals that have undergone IVF will sometimes have unused pre-embryos that will be cryopreserved for future use or because the Intended Parents do not wish to destroy them. Those that maintain surplus cryopreserved embryos should address the access, control and disposition those embryos in an agreement and a Will in the event of a divorce or death, including death or divorce during IVF treatment, specifically addressing permissible uses, if any, of the embryos after a divorce or death. Other issues to also consider are the time period for use, whether an after born child inherits, and other parameters of consent.

If you are considering cryopreserved embryos, contact Hawthorne Merrill Law to discuss your options before entering into a contract.

Traditional Surrogacy & Gestational Surrogacy

Traditional surrogacy is typically accomplished via intrauterine insemination (IUI) with the sperm of a known or unknown donor. A physician with a fertility clinic will introduce a donor’s or the intended father’s sperm into the surrogate’s reproductive organs with the intent of producing a pregnancy using the surrogate’s egg. Therefore, the surrogate has a genetic connection to the resulting child. If you are considering entering into a traditional surrogacy arrangement, whether it is with a recruited surrogate or family member, there are many legal considerations that should be discussed and memorialized in contract.

Traditional surrogacy arrangements should detail all necessary consents and clearly identify the parental rights and obligations of each party to the arrangement. In some traditional surrogacy is illegal, while in other states, statutes and case law are silent.

Gestational surrogacy is a more recent development and is sometimes considered a safer alternative to Traditional Surrogacy from a legal perspective because the gestational carrier has no genetic relationship with any resulting child. Gestational surrogacy occurs where a woman agrees to both be implanted with fertilized embryos via In Vitro Fertilization (IVF) and to carry a child (who is genetically unrelated to her) for the Intended Parents. The Intended Parents may or may not have a genetic connection to the child.

Gestational surrogates can be when the Intended Mother has viable eggs, but cannot carry a child to term. In other instances, when the Intended Parents cannot produce the necessary egg or sperm, then donor egg, sperm or embryos created from donor gametes are used. To transfer an embryo via IVF, the surrogate will follow a protocol involving hormone injections established by a fertility clinic. Most states, including South Carolina, have yet to enact laws establishing parentage in gestational carrier cases, though in some states the Intended Parents are able to obtain a pre-birth order so that their names go directly on the birth certificate. In other states the birth certificate is amended after the child is born.

A surrogacy agreement involves much more than just drafting a document. Contracts involving gestational surrogacy, egg donation, and other reproductive technologies involve issues on the cutting edge of medicine and the law. The contracts are highly detailed and updated to apply the changing legal landscape of this evolving way to build a family. Each legal agreement is carefully drafted to the unique circumstances of your family.

Surrogacy is largely unregulated and contracts typically raise numerous weighty legal issues, including:

Confidentiality
Consent to medical and psychological assessment of Gestational Carrier
Rights and responsibilities of the parties
The number of embryo transfers or artificial insemination attempts
Storing, donating or disposing of frozen embryos
Views on selective reduction, abortion and medical complications
The amount and purpose of life insurance coverage to be obtained by the Gestational Carrier
What fees and costs will be reimbursed by the Intended Parents
Payments for birthing and special circumstances such as a C-section
Management of escrowed funds
Circumstances in which the contract may be terminated
The disposition of unused embryos upon termination of the agreement, divorce or death

Those considering surrogacy should ask themselves some questions before beginning the process of locating and using a surrogate. Some questions to ask follow:

Are you ready to move on from current infertility treatments?
How do you feel about someone else carrying your child?
Are both partners ready to do this?
How will you explain the pregnancy and birth to others and eventually to your
child?

It is a requirement of some infertility clinics that Intended Parents and the Surrogate Mother speak to a mental health professional specializing in infertility about these and other concerns. A mental health screening can assess whether all parties have considered the matters. It will also help to determine if the Intended Parents and the Surrogate Mother are compatible.

If you are considering surrogacy, contact Hawthorne Merrill Law to discuss your options before entering into any surrogacy contract.

In vitro Fertilization

In vitro fertilization (IVF) is a series of medical procedures used to treat fertility or genetic problems and assist with the conception of a child. During IVF, mature eggs are retrieved from your ovaries and fertilized by sperm in a lab. Then the fertilized egg (embryo) or eggs are implanted in your uterus. One cycle of IVF takes about two weeks.

IVF is an effective form of assisted reproductive technology. The procedure can be done using the intended mother’s own eggs and the intended father’s sperm. Or IVF may involve eggs, sperm or embryos from a known or anonymous donor. In some cases, a gestational carrier — a woman who has an embryo implanted in her uterus — might be used.

With the IVF process comes legal issues that aren’t always addressed by the fertility clinic or physicians office.

If you are considering IVF, contact Hawthorne Merrill Law to discuss your options before entering into any contract.

Grandparents

If you have a grandchild or grandchildren living with you, or desire that your grandchild or grandchildren come to live with you, the legal implications of this arrangement must be considered.

Consider theses questions. Are you authorized to register your grandchild at school? Can you make medical decisions for them? Can you get them health insurance? Are you obligated to pay for clothes and all other necessities? Are either or both parents obligated to financially contribute to the child's care?

What legal issues affect my grandchild and me? There is no simple answer to this question. It will depend on the needs of your family. Were the children removed from their home because the parents are unfit? Is the Department of Social Services involved? Are the parents visiting the child? Has a parent died? Are there substance abuse problems?

Just because you've taken your grandchildren in doesn't mean you have the right to make legal, medical, and educational decisions for the child. South Carolina law allows grandparents to seek visitation or custody in some, but not all, situations. If court action is necessary, the court's paramount concern will be to determine what is in the child's best interests.

We can discuss the legal implications you must consider when your grandchildren live with you. Call our office so we can schedule a meeting and discuss your legal rights as a grandparent.

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