Stephen J. Buhler, Attorney at Law

Court rules against father in Native American adoption case

Courts have long grappled with the best interests of the child standard that is generally followed in family law cases. As the times change, so changes the implications of that standard. Just a decade ago child custody was almost exclusively given to mothers. Today, courts are accepting and internalizing the importance of fathers and the positive effect of joint custody parenting on the children. As family laws changes and develops, another issue has recently made its way to the forefront of the legal world.

The United States Supreme Court ruled on the case of a father who wanted to apply the protections of the Indian Child Welfare Act to block the adoption of his daughter. The Court's ruling sends the case back to South Carolina to decide the child's fate. The decision is in line with others that dismissed petitions to return adopted children based off of technicalities, such as filing too late or only being a temporary member of the tribe at the time. The ruling is important for Utah, which adopts many of its foster care children into non-American Indian families.

The Act's main purpose is to stop the dissolution of Indian families, but if there was no Indian family to begin with, the act does not take effect and the Court chose not to apply it in this instance.

The Supreme Court ruled that in cases where the biological parent didn't have continued custody of the child the state's standard for establishing custody and parental rights must apply instead of the Indian Child Welfare Act. Unwed father's whose children are born in Utah face an uphill battle in establishing their parental rights. In cases of adoption an unwed father must both register and start a court action before the adoption process begins in order to retain his rights. In Utah the adoption process can start as soon as 24 hours after the child's birth.

Source: The Salt Lake Tribune "Supreme Court: Act doesn't apply in Indian girl's adoption" Brooke Adams June 25, 2013

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