A South Carolina couple who adopted a 3 year old girl in 2009 is asking the U.S. Supreme Court to order the biological father to return the child to them. The Court agreed to hear the case because it presents questions about the application of the Indian Child Welfare Act to state child custody disputes.
The child, simply known in court papers as “Baby Girl,” was born in Oklahoma in September 2009 to a Hispanic mother and a Cherokee Nation father. The mother placed the infant with adoptive parents in South Carolina the next day.
The biological father of the child contends that he and the mother were engaged when she learned that she was pregnant and that he asked her to move up their wedding date so that the child would be legitimate. The mother refused and told the father that she did not wish to marry him. She also asked for financial support, which the father refused unless she married him.
The mother subsequently decided to put the baby up for adoption. The father, who is a soldier in the U.S. Army, did not learn of the adoption until 12 days before his 11 month deployment to Iraq (where he received a Bronze Star).
The father sued for custody in South Carolina state court, arguing that the Indian Child Welfare Act (ICWA) generally bars the adoption of Indian children by non-Indians. Congress passed the ICWA in 1978 because the overwhelming majority of Indian children removed from their families out of child welfare and safety concerns were being placed in non-Indian homes.
A South Carolina family court judge agreed and ordered the adoptive parents to turn over the child to her biological father in Oklahoma. The South Carolina Supreme Court affirmed with a 3-2 vote. “We do not take lightly the grave interests at stake in this case,” the court wrote. “Adoptive Couple are ideal parents who have exhibited the ability to provide a loving family environment for Baby Girl. Thus, it is with a heavy heart that we affirm the family court order.”
The adoptive parents turned over the child (who was 2 years old at the time) to the biological father in December 2011 and has lived with him and his parents in Oklahoma ever since.
Lawyers for the couple argue that the father never took any responsibility that would qualify him as a “parent” under the ICWA and that he failed to provide any financial support to the birth mother during her pregnancy. The couple also argues that if the South Carolina Supreme Court’s decision is upheld, it would “permit biological fathers of Indian children to repudiate their parental responsibilities under state law while retaining a back-pocket veto over the mother’s choice to place her child for adoption.”
The couple also pointed out that the child is only 3/256ths Cherokee, she never lived on tribal land, and that the biological father had severed all ties with the mother before the child was born.
Oral arguments were heard by the Supreme Court on April 16th and a decision should be announced in June. The case is Adoptive Couple v. Baby Girl (Docket No. 12-399).
Source: Christian Science Monitor, “Supreme Court to hear child custody fight; at crux is law on tribal rights,” Warren Richey, April 15, 2013