Articles from 2022

November is Native American Heritage Month. This is a time to recognize the significant contributions Native Americans have made, and continue to make, to the United States of America. This month celebrates the rich and diverse cultures, traditions, and histories of Native peoples. It also provides an opportunity to raise awareness about the unique challenges faced by Native Americans, many of which continue in the present.

The US Supreme Court heard oral arguments Wednesday November 9^th in the case of Brackeen v. Haaland, which will decided whether certain sections of the Indian Child Welfare Act (ICWA) are unconstitutional. The plaintiffs argue that it provides an unlawful racial preference in child custody and adoption cases and unlawfully intrudes on a state right to regulate child placement. Those in favor of the law say that it aims to prioritize the placement of Native American children with their extended families or tribal communities, where their cultural identities will be understood and celebrated. 

The ICWA was passed by Congress in 1978 in response to the long and tragic history of separating Native American children from their families by state agencies, sometimes by force, who would place the children in institutions or with non-tribal foster families. The removal of a Native American child was not always due to abuse or neglect by a parent but was often due to misplaced beliefs about tribal life and poverty. The separation notorious with the federal government’s removal of Native American children to boarding schools, continued into the mid-20th century through state-court proceedings that determined, without considering Native American culture, that children had been neglected or abandoned. These children were then placed with families that were not Native American.

To address this history, the ICWA establishes minimum standards for the removal of Native American children from their families and establishes a preference that Native American children who are removed from their families be placed with extended family members or in Native foster homes. By keeping Native American children within their family and tribe, there is opportunity to better foster their culture and identity. Under ICWA, tribal courts have exclusive jurisdiction over child-custody proceedings involving Native children who live or have their permanent residence on tribal land. 

Brackeen v. Haaland was filed in federal court in Texas by the states of Texas, Indianan and Louisana, three couples who are not Native American who have tried to foster or adopt children with Native American ancestry, and one of the children’s biological mother. Four tribes have joined the case to defend the ICWA. The federal district court held that the ICWA was unconstitutional, but this was reversed by the U.S. Court of Appeals for the 5^th Circuit. 

A decision in Brackeen v. Haaland will address two fundamental issues:

1. Whether the ICWA’s placement preferences — which disfavor non-Indian adoptive families in child-placement proceedings involving an “Indian child”— discriminate on the basis of race in violation of the U.S. Constitution
2. Whether ICWA’s placement preferences exceed Congress’ Article I authority by invading the arena of child placement — the “virtually exclusive province of the States,” as stated in Sosna v. Iowa — and otherwise commandeering state courts and state agencies to carry out a federal child-placement program

The challengers (Texas and the non-Native American adoptive families), contend that the ICWA’s use of an “Indian child” classification to create placement preferences violates the Constitution’s requirement of equal protection under the law.  They also argue that states, not Congress, have long been delegated the power to regulate adoption and child-custody proceedings. The tribes counter that Native American children have “always been a federal (and tribal) sphere,” insisting that the Constitution gives Congress the power to regulate Native American affairs broadly, as part of the duty of protection that the federal government owes to Native Americans. In particular, they say Congress’ power to regulate commerce with tribes has never been limited to “buying, selling, and transporting goods” (a common definition of “commerce”). They contend that the Constitution gives Congress the power to regulate all interactions between Native Americans and non-Native Americans.

Native American tribes have called the ICWA “one of the most important pieces of federal Indian legislation ever enacted,” and warn that a ruling in favor of the challengers “would work profound harm on Indian children and Tribes.” They feel that the ICWA “prospectively incorporates Tribes’ own preferences into federal law.” According to the American Civil Liberties Union (ACLU), who filed an amicus brief with the US Supreme Court:

“If the Supreme Court overturns ICWA, states would once again be allowed to indiscriminately remove Native children from their families and culture while simultaneously depriving tribes of future generations — putting the very existence of tribes in jeopardy.”

Today Native American programs and courts work with state courts to determine the best placement of a Native American child with preference being given to placement with a family or tribal member to help the child remain in touch with their extended tribal family. 

For more information, check out this article from SCOTUSblog. To read more about the oral arguments that occurred Wednesday, click here.

As members of the LGBTQ+ community strive to live their most authentic life, they may desire to change their name or the gender marker on their birth certificate. Continue reading to learn more about this process in South Carolina.

Name Changes

To make a name change for an adult, there are 4 key requirements that must be met:

1. Fingerprint and Criminal Background Check from South Carolina Law Enforcement Division (SLED)

While it is possible to go on the SLED website and quickly do a criminal background check by submitting the information SLED requires, for a name change you need to do fingerprint screening as well. This will involve going to a local law enforcement center to complete a fingerprint card. You can do this at any law enforcement center, though fees may be different at each center.

After completing this background check, you will get a “Record Check” document back from SLED that you need to attach to your petition to change your name. If you have a criminal record, it will say so and include a printout of your criminal record. If you do not have a criminal record, this form will indicate that you do not have a criminal record. This will also include whether someone is listed on the sex offender registry.

Once you have completed this document, you will mail it to SLED at the address below, with a self-addressed and stamped envelope, as well as $25. They will use the self-addressed envelope to mail the results back to you.

SLED
PO Box 21398
Columbia, SC 29221

2. Screening statement from the Department of Social Services (DSS) that indicates whether the person is listed on the Central Registry of Child Abuse and Neglect

This process can be found on the DSS website (https://dss.sc.gov/resource-library/forms_brochures/files/3072.pdf), however this document will need to be witnessed or notarized. You will mail this form to DSS at the address below, as well as the payment for an $8 fee.

DSS
PO Box 1520
Columbia, SC 29202

3. Affidavit that indicates whether the person is under court order to pay child support or alimony (“Affidavit of No Support”)

This affidavit will be a sworn statement to the court including your name, and stating that there are no outstanding payments in your name, including all previously used names (e.g. maiden name)

4. Screening statement from SLED whether the person is listed on the sex offender registry

This documentation can be obtained when contacting SLED for the first requirement, fingerprint, and background check.

Once you have obtained these documents, you will file a petition with the Family Court, including a $150 filing fee. Then, you will request a hearing and attend the scheduled hearing. The Final Order will be submitted to the judge for their review and signature. It is important for you to then obtain CERTIFIED copies of the Final Order from the clerk’s office, as you will need a certified order for another step.

At this stage, if the court has granted it, your name has been legally changed. However, if you want your birth certificate to reflect this change, you will need to take additional steps. You will need to ask DHEC to amend your birth certificate to reflect the name change. To do this, you will need:

1. Certified copy of Final Order (this is why it’s important to make sure you get the certified final order because that is what DHEC requires)
2. Vital Records Birth Application
3. Included copy of state-issued ID
4. $27

This information can be mailed to DHEC or taken to the DHEC vital records office in Columbia

Gender Marker Change

Filing for a gender marker change is not as straightforward, as there is no statute or case law addressing gender marker changes in SC. However, there is a law that allows Family Court to correct birth records. There’s another law that identifies DHEC as having authority to correct mistakes on the birth certificate.

DHEC issued a letter in 2018 stating that if the court and medical professional are satisfied with gender marker change, and these 4 steps were followed, they would accept the court order for gender marker change.

1. Medical certification of physical change related to the person’s sex
2. Licensed physician and the court are satisfied their medical treatment has been completed with the result being that they are now a different sex from their biological sex at birth and is not merely in the process of transitioning
3. That the change is permanent in nature
4. Change in sex is made with the intent to change permanently and for all purposes

Note, that these requirements do not indicate that a petitioner must have had surgery to change a gender marker, as long as the court and physician are satisfied with medical treatment that has occurred and has changed sex from biological sex.

What counts as medical certification?

1. Detailed affidavit from a licensed physician treating the Petitioner in support of gender marker change and correction of birth record
2. Depending on the individual case, expert testimony from a licensed physician may be required

The petitioner’s testimony will also be key!

This testimony would need to:

1. Outline requirements DHEC has set
2. Show doctor and petitioner have been careful to follow and meet requirements
3. Explain factors like background, diagnosis of gender dysphoria, what treatments they received, biological changes, etc.

Frequently Asked Questions

Do I need an attorney to pursue a name and/or gender marker change?

• Probably – if you’re just doing the name change, the requirements are pretty straightforward; but if you are doing a name and gender marker change, it would be best to have an attorney since case law is not as straight forward and the attorney can make sure you have the strongest case possible.
• If you meet gender marker requirements, it is best to do the name and gender changes at the same time so the birth certificate can be amended all at once.

I live in SC, but I was born in another state. Can I do a name/gender marker change in SC?

• Yes! You are a resident of the state so you are subject to SC court jurisdiction.
  • However, it is important to double-check with other state vital record departments to ensure they do not require additional court order requirements.
  • Each state has different laws addressing gender marker changes. Make sure you reach out to the vitals record department to know of other requirements and whether they will accept the SC court order.

I was born in SC but now live in a different state. I was told I had to pursue the name change in SC. Is this true?

• No – SC and DHEC will accept court orders from any other state, as long as it’s compliant with other SC requirements.
  • For gender marker change, DHEC may still want to see a copy of the affidavit from a licensed physician.

I have a criminal record. Will I be able to pursue a name/gender marker change?

• For the most part, yes. The law contemplates this issue and says the clerk of court would have to notify law enforcement divisions about name or gender marker changes.

I am listed on the DSS Central Registry for Child Abuse/Neglect. Will I be able to pursue a name/gender marker change?

• For the most part, yes. If the judge grants a change, a copy of the order will be sent to update the registry.

If I file a case with the court to change my name/gender marker, will it be open to the public? What about for a minor?

• Yes; however there are circumstances where records can be sealed but this is not common. Family Court has its own court system that may not be visible on the public index online.
  • Confidential information like date of birth and SSN should be redacted before being issued on public record.
  • A little different for minors – any action in family court involving a minor child, the child is not identified. Parents bring the action so any mention of the child will identify the child as initials.

For more information, check out one of our Level Up Law episodes where attorney Charlotte Osmer overviews this process: https://www.youtube.com/watch?v=KJ1CRZXyJlA&list=PLJ9Hlm5oxA5tlb2v8VVu2SQhZNOOtD7mX&index=64