Berman & Asbel, LLP

Supreme Court to weigh in on Indian child custody case

The U.S. Supreme Court will hear arguments in an unusual case involving parental rights. The outcome of the child custody case could change the way that a federal law is applied to cases in Pennsylvania and across the nation. At the heart of the matter are the rights of parents of Native American children, as well as rights afforded to adoptive parents.

The Indian Child Welfare Act (ICWA) was passed in 1978 in an effort to stop the unjust removal of Indian children from their homes for placement for adoption. The Act states that it is unlawful for non-Indian parents to adopt children born of Indian heritage. The case coming before the Supreme Court centers on an infant whose Hispanic mother placed her for adoption without the knowledge or consent of her Native American father.

The child was sent home with her adoptive parents the day following her birth. The father, once made aware of the situation, began fighting for the return of his child. A lower court ordered the child to be sent back to her father's care when she was a 2-year-old. The adoptive parents appealed, claiming that the father's refusal to provide financial support to the mother during the course of her pregnancy disqualifies him as a 'parent' under the ICWA.

As the Supreme Court takes , on this issue, parents in Pennsylvania and elsewhere will follow the course of the child custody case. The outcome could help judges across the nation determine the best way to apply the ICWA in complex cases such as this one. Furthermore, the rights of adoptive parents are also at issue, and the manner in which this case is decided could leave prospective adoptive parents wondering about the legal ramifications of adopting a child of Indian descent.

Source: The Christian Science Monitor, "Supreme Court to hear child custody fight; at crux is law on tribal rights," Warren Richey, April 15, 2013

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