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Adoption & Custody: The Indian Child Welfare Act

On Behalf of | Oct 29, 2013 | Adoption

Adoption & Custody: The Indian Child Welfare Act – An Extra Ingredient in Native American Custody and Adoption Cases

In 2009, a South Carolina couple, Matt and Melanie Capobianco, arranged a private adoption with the birth mother of a little girl. The Capobiancos traveled to Oklahoma for the birth of their daughter, Veronica, and returned home to South Carolina with her soon after. Before the Capobiancos had a chance to settle into their new life with their daughter, Veronica’s biological father, Dusten Brown, a registered member of the Cherokee Nation, sought to retake custody of his daughter. Claiming that he had been hoodwinked and manipulated by his ex-fiancée, Veronica’s birth mother, into giving up his parental rights, Brown brought suit against the Capobiancos, relying heavily on a federal law called the Indian Child Welfare Act. In 2011, when she was two years old, Brown regained custody of Veronica and took her back to Oklahoma with him.

Over the course of her four years, Veronica has been the subject of cases in at least five different courts, including the U.S. Supreme Court, courts in South Carolina, Oklahoma and within the Cherokee Nation. This bitter custody battle even caught the attention of the United Nations. Just a few weeks ago, the UN Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, urged federal, state, local and tribal governments to work together to ensure Veronica’s “right to maintain her cultural identity and to maintain relations with her indigenous family and people” would be protected. These rights to maintain her relationship with the Cherokee tribe are established under various UN treaties, to which the United States is a signatory.

This week, after four years of protracted and nasty litigation, Veronica returned to South Carolina with the Capobiancos. The Capobiancos are assuring the press that Veronica will be given ample opportunity to see her birth father and grow up knowing the culture of the Cherokee Nation, however, Brown and the Cherokee Nation have serious doubts.

The Indian Child Welfare Act is a law that weighs heavily in all custody disputes and adoptions involving Native American children. Congress passed the Act in 1978 in response to an alarmingly large number of Native American children who were being taken from their birth homes and tribes, irreparably tearing them away from their culture. Congress’ aim in promulgating the Act was to “promote the stability and security of Indian tribes and families” and recognizing the crucial role played by tribal governments in supporting tribal families.

The Act addresses a wide variety of issues, but its primary purpose is to establish a clear preference for Native American children to stay with Native American families. The law clearly states that when parental rights are terminated, whether involuntarily through child welfare violations or voluntarily by the parents, all attempts should be made to place the child with a member of the tribe from which the child originates. Only when it is clear that no suitable place for the child is available with a Native American family may the child be placed with a non-Native American family.

In all custody and adoption cases, the best interests and welfare of the child control the outcome. However, when Native American children are involved, the Indian Child Welfare Act adds another layer of complexity. It can be tricky to maneuver through the thicket of issues involved with the Indian Child Welfare Act. We understand that custody and adoption are highly emotional issues, and that having extra hurdles to jump intensifies feelings of fear and anxiety. Our firm is experienced in all custody and adoption issues, including Native American custody and adoption cases. Contact our office at 724-940-0100 to speak with our Pittsburgh Adoption Attorneys and Custody Attorneys to discuss your unique case.