State, federal and Indian tribal courts were called to decide the fate a 3-year-old girl. The Indian Child Welfare Act of 1978 affects the priority of caregivers in child custody disputes over Native American children, many of whom reside in Texas and nearby Oklahoma where the Cherokee girl’s case began.
ICWA was created to preserve Indian culture by keeping Native Americans together when possible. The federal law gives Native American family or tribe members preference over non-Indians in legal issues involving children.
The rightful family of the little girl has been in dispute since her birth. A South Carolina couple raised the child for two years while working toward adoption. The girl’s biological father challenged the arrangement in a state Supreme Court and won back custody of his daughter in 2011.
The adoptive couple sought a judgment from the U.S. Supreme Court. Justices ruled the matter should be decided in South Carolina, the couple’s state of residence – despite the application of the federal law regarding the custody of Indian children. The South Carolina couple’s adoption was approved this summer.
A Cherokee Nation court previously agreed the child should live with the father’s spouse and paternal grandparents, while the girl’s father completed out-of-state military training. The father was arrested for custodian interference when he failed to comply with the South Carolina court’s transfer order.
The governors of both states have become involved to make sure the child’s transition occurs as peacefully as possible. The lawmakers agreed a “happy ending” for all parties would not be likely.
The Indian Child Welfare Act impacted this case, but the underlying issue remained the same as in other custody disputes. Family law judges must prioritize the child’s best interests, no matter how many levels of laws overlap. A child’s needs outweigh every other issue, including the parents or prospective parents’ desires. If you are involved in a child custody dispute, contact an experienced family law attorney to discuss your rights and options.
theolympian.com, “SC requests Okla. extradite Cherokee girl’s father” Kristi Eaton, Aug. 13, 2013