Original Birth Certificates. South Dakota is a Compromised State. South Dakota-born adult adopted people cannot directly request and obtain their own original birth records from the state’s vital records department. They may, however, obtain a court order to release records at age 18, and those records may include the original birth certificate. Court orders are routinely granted under current South Dakota law.
Court Records. South Dakota law provides that, upon reaching “maturity” (deemed to be 18 years of age or older), an adopted person may request and obtain court records. This has also been interpreted to include a court order to release the original birth record. The process is not without considerable state involvement. The adopted person must call the South Dakota Department of Social Services at (605) 773-3227. The DSS will then “assist” with completing a court petition and send it to the adopted person for signature and filing. Once completed and signed, it is filed with the court that finalized the adoption. If approved, certified copies of the court’s order must be presented to the vital records office and to any other entity holding adoption records that the court has approved for release.
Descendant Rights. Descendants have no specific rights to request and obtain an adopted person’s original birth certificate, and are not authorized to obtain court records upon request. The current court process to release records is limited to adult adopted people and their adoptive parents. Birth records in South Dakota are public and searchable online after 100 years.
Adoption Registry. South Dakota maintains a Voluntary Adoption Registry to facilitate contact between birth parents, birth siblings, and adoptees who are at least 18 years of age. It is a passive registry and does not provide search services.
Adult Adoption. South Dakota law provides for adoption of adults, though the law is fairly limited. Written consent of the adopted person is required, and the person being adopted must live in the home of the adoptive parent for at least six months while under twenty-one years of age.
South Dakota Law: Vital Records and Birth Certificates
Relevant parts of South Dakota vital records law. The entire South Dakota vital records statute is available here.
34-25-8. Birth registration—Certificate of live birth—Time for filing—Availability of records
The birth of every child born in this state shall be registered as provided in this chapter. Within seven days after the date of each live birth, there shall be filed with the department by electronic means if a facility has such capabilities, or otherwise if electronic means are not available, a certificate of such birth. The certificate shall be upon the form prescribed by the department. For certificates of birth filed after seven days, but within one year from the date of birth, the department may, by rules promulgated pursuant to chapter 1-26, require additional evidence in support of the facts of birth.
Informational copies of birth records shall be available to any person who can identify the birth record by providing the name of the person on the birth record, the date of birth, the mother’s maiden name, or additional information required to locate the record. Nothing in this section prohibits the release of information contained on a birth record which would not identify any person named in the record.
If one hundred years have elapsed after the date of birth, the records of the birth in the custody of the department shall become available to the public without restriction. The department shall promulgate rules, pursuant to chapter 1-26, to provide for the continued safekeeping of these records.
34-25-14. Child of unknown parents—Physician to name child and file birth certificate
In the case of a neglected or abandoned child, whose parents are unknown, such child shall be examined immediately by a licensed physician who shall assign a given name to the child, and, within seven days, file directly with the State Department of Health a certificate, in form and manner prescribed by the department.
34-25-15. Legitimation of child—New birth certificate—Fee
In cases of legitimation, the department, upon receipt of proof of the marriage of the parents after the birth of the child together with an affidavit of paternity signed by both parents of the child, shall prepare a new certificate of birth in the new name of the legitimated child.
Within ten days after the filing of an affidavit of acknowledgment of paternity, signed by both putative parents who are not married, the department shall add the name of the father to the certificate of birth if paternity is not shown on the record. Upon request of the parents, the surname of the child may be changed to that of the father or a combination of mother’s and father’s surnames, in which case the department shall prepare a new birth certificate. A change in paternity, which is already shown on a birth certificate, may be made only upon receipt of a court order determining paternity.
Upon receipt of a court order or affidavits determining the paternity of a child pursuant to § 34-25-13.1, the department shall prepare a new certificate of birth. Each applicant for a new birth record shall submit a five dollar fee to the department for the preparation and filing of the record.
34-25-16. Adoption information forwarded by clerk of courts
Within ten days after the filing of every original, amended, or annulled decree of adoption, the clerk of courts shall forward to the department such information necessary to establish a new certificate of birth on a form prepared by the department.
34-25-16.1. New birth certificate upon adoption of child born in state or foreign nation—Exception
If the birth occurred in South Dakota, the Department of Health shall issue a new certificate of birth in the new name of the child and with the name of the adopting person. However, a new certificate of birth may not be prepared if so requested by the court decreeing the adoption, the adoptive parents, or the adopted person.
If the birth occurred in a foreign nation and the adoption decree is entered in a court of this state, the Department of Health shall issue a new certificate of birth in the new name of the child and with the name of the adopting person. The birth certificate shall be prepared in accord with the facts as found and entered by the court. If the birth occurred in a foreign nation and the adoption was finalized in a foreign nation, any circuit court of this state may issue an order, ex parte and without hearing, directing that a new certificate of birth be issued upon filing the following documentation:
(1) A certified copy of the adoption order from the foreign nation;
(2) A certified translation of the adoption order if necessary;
(3) Proof of the date and place of the child’s birth;
(4) Proof of IR-3 immigration status; and
(5) Proof that each adopting person is a resident of this state.
The Department of Health shall issue a new certificate of birth in the new name of the child and the name of each adopting person upon receipt from the clerk of courts such information necessary to establish a new certificate of birth on a form prepared by the department.
The issuance of certificates pursuant to this section is conditioned upon the receipt of a fee based upon administrative cost as established by the department pursuant to chapter 1-26.
34-25-16.4. Sealing of original birth certificate after new certificate issued–Opening of sealed materials
When a new certificate of birth is established pursuant to §§ 34-25-15 to 34-25-16.2, inclusive, the original certificate of birth together with the adoption information or other evidence upon which a new certificate is made shall be sealed, filed, and may be opened only upon order of a court of competent jurisdiction, or by the secretary of health for purposes of properly administering the vital registration system.
34-25-16.5. Original birth certificate sealed or forwarded to department after new certificate issued
When a new certificate of birth is established by the State Department of Health, all copies of the original certificate of birth in the custody of any local registrar in this state shall be sealed from inspection or forwarded to the State Department of Health, as directed.
34-25-16.7. Determining mother for birth certificate
For the purposes of birth registration, the mother is deemed to be the woman who gives birth to the child, unless otherwise determined by a court of law prior to the filing of the birth certificate.
34-25-52. Copies of certified or informational records supplied by department or local registrars—Application—Time—Fees
The department or authorized local registrars shall, upon receipt of an application, issue a certified copy of a vital record to the registrant or the registrant’s spouse, children, parents, guardian, next of kin, or authorized representative. The department may authorize others to obtain certified copies in response to a demonstration that the record is needed for the determination or protection of a personal or property right. The department or authorized local registrars shall upon receipt of an application, issue informational copies to any applicant of any vital record. The department or authorized local registrar may withhold the immediate issuance of any certified copy for a period of no longer than three days. The department shall be entitled to a fee based upon administrative cost as established by the department pursuant to chapter 1-26 for each search of the files and records. The fee shall be paid in advance by the applicant and shall not be in addition to the fee hereinbefore provided for the making and certification of the record but shall be applied in payment thereof if the record is found.
South Dakota Law: Court Records and Registry
Relevant parts of South Dakota adoption law related to court adoptions and the state’s adoption registry. The entire South Dakota adoption statute is available here.
25-6-15. Restrictions on access to court records in adoption proceedings—Court order required for disclosure of information—Notice of hearing to department or adoption agency—Disclosure not contested nor supported
The files and records of the court in adoption proceedings are not open to inspection or copy by persons other than the parents by adoption and their attorneys, representatives of the Department of Social Services, and the child when he reaches maturity, except upon order of the court expressly permitting inspection or copy. No person having charge of any adoption records may disclose the names of any parents, or parents by adoption, or any other matter, appearing in such records, or furnish certified copies of any such records, except upon order of the court for the county in which the adoption took place or other court of competent jurisdiction except as otherwise provided by this section and §§ 25-6-15.1 to 25-6-15.3, inclusive. 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.
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.
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.
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.
South Dakota Law: Adoption Generally
Relevant parts of South Dakota adoption law. The entire South Dakota adoption statute is available here.
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.
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 the penitentiary for a period that, in the opinion of the court, will deprive the child of the parent’s companionship for a critical period of time;
(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.
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.
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.
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.
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.
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.
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.
Relevant South Dakota Law: Adult Adoption
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.
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.