Pacheco Perez P.A.

Child custody battle spotlights Indian Child Welfare Act

When a couple from South Carolina walked out of a hospital in 2009 with their newly born adopted daughter in their arms, they could scarcely have contemplated that two and a half years later they would be enmeshed in a child custody battle with the Cherokee Nation.

In what some legal experts are calling a precautionary tale, the case highlights the potential complications involved when an adopted child has tribal blood.

Moreover, the case has obvious relevance in Florida and every other state, in every adoption involving a Native American birth parent.

The South Carolina couple was specially selected by the birth mother, who signed off on the adoption. The couple was present for the birth, with the family being intact until early this year, when the young girl was removed and placed with her birth father, who is Cherokee.

The applicable law in the matter is the federal Indian Child Welfare Act, which was passed in 1978. The Act seeks to ensure that Indian children remain in Indian homes when possible, and tribes have used the law aggressively as a tool to maintain cultural identity and language.

In the instant case, the birth father is being represented by attorneys from the Cherokee Nation.

"We understand the purpose of the Act, but we feel that the ICWA is being abused," says the adoptive father.

"This isn't in her best interest," he adds. "We're her family. This is her home."

Source: Fox, "SC couple fights for custody of adopted child now in OK" Adam Paluka, Jan. 5, 2012

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