US Supreme Court to Hear Custody Case

 Posted on February 26, 2013 in Family Law

The U.S. Supreme Court has agreed to hear a custody case that involves a custody battle between the biological father and the adoptive parents of a three year old Cherokee girl. At issue is the child’s Native American heritage and whether or not a federal law, the Indian Child Welfare Act (ICWA) of 1978, applies in this case.

Matt and Melanie Capobianco legally adopted the little girl in 2009. They were in the room when she was born and had an "open" adoption with her birth mother. The child’s birth father, Dusten Brown, told CNN that he was engaged to the birth mother when she discovered she was pregnant, but she broke off the engagement shortly after. He agreed to relinquish his parental rights in exchange for not paying child support, but said the mother never indicated she intended to give the child up for adoption.

He discovered the baby had been adopted while he was deployed in Iraq. He also discovered that the birth mother had concealed their daughter’s Native American heritage, which would have it very difficult for the Cherokee Nation and state social services to agree to any non-Indian adoption and removal from the state. The goal of the ICWA is to "promote the stability and security of Indian tribes and Indian families by the establishment of minimum federal standards to prevent the arbitrary removal of Indian children from their families and tribes and to ensure that measures which prevent the breakup of Indian families are followed in child custody proceedings."

Brown, who lives in Oklahoma, finally was awarded custody of the child two years after she had been adopted by the Capobiancos, who live in South Carolina. Brown brought his daughter home to Oklahoma on New Year’s Eve 2011.

But the Capobiancos appealed to the nation’s highest court. Their argument is that the father's initial agreement to give up his parental rights meant he forfeited any subsequent efforts to establish custody, when the child was already in a happy, stable home environment. They also question whether the ICWA can be used to block adoption proceedings which were voluntarily initiated by a non-Indian mother who had sole custody of her child. They say the Indian father failed to establish a legal parent-child relationship under state law.

And the Supreme Court has agreed to hear their argument sometime within the next few months.

If you are considering adopting a child, you should consult with a qualified Illinois family law attorney to ensure that all potential legal issues are covered and you and your adoptive child are protected.