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Adoption and custody issues when Indian child welfare is a factor

When the welfare of a child is involved many parties can wind up competing to do what they think is best. Government officials in Texas have an interest in trying to protect children from abusive situations. Would-be parents who are unable to have children of their own may seek to adopt, inspired by love and a desire to provide a child a good home.

If the child happens to be a member of a Native American tribe federal law has something to say about how things should be handled. It's called the Indian Child Welfare Act and unless great care is taken, adoption and custody determinations can wind up being invalidated. A clear understanding of the ICWA is crucial.

For those who may be unfamiliar with this law; a quick synopsis. It was enacted in 1978 in response to concerns that Native American children were being improperly removed from their families and tribes. While it might be argued that those actions were motivated by good intention, lawmakers recognized that the effect was eroding Native communities and cultural identity.

The law establishes that in cases where a child's tribal membership is at issue, tribal courts, rather than state courts, have jurisdiction. While the law's language attempts to be quite clear about how it should be implemented, interpretations by the courts have varied over the years. Last month, the U.S. Department of the Interior issued new final rules to bring more consistency to ICWA proceedings.

In addition to providing clear definitions of critical legal terms, the new rules offer:

  • Guidance on what efforts child welfare officials must make to keep an Indian child with its biological family
  • Standards to be followed in emergency child welfare proceedings
  • Clarity that all participants involved in foster or adoptive placement cases have to indicate their understanding that the child involved is part of a recognized Indian tribe

The ICWA presumes that the best interests of an Indian child are served by maintaining his or her links to the tribe. This can create a unique layer of legal issues and it is clear that skilled legal representation is needed to protect the rights and interests of adoptive parents or those seeking custody of a child.

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