Family Law Blog

Native American Man Loses Child Custody Lawsuit

Friday, August 16, 2013

In a child custody case that Los Angeles family lawyers saw as a test of government laws that grant extra protections to Native Americans, a little girl who was handed over to her Native American biological father has now been handed back to her adoptive parents.

The 27-month-old girl, had been living with her adoptive parents since her birth, and was handed over to her biological father in 2011.The girl was born as a result of a relationship between her parents, a Native American and non-Native American woman who were engaged. However, the woman broke off the engagement before the marriage, and asked the father if he wished to relinquish his rights as the biological father of the child, or pay child support. The father chose to relinquish his rights to the child.

The man changed his mind when he found out that the child had been placed for adoption, and had been given to a non-Native American in South Carolina. He then moved to sue for custody of the child from the adoptive parents.

A special federal law called the Indian Child Welfare Act worked in his favor, and the man was given custody of the child in 2011. This was even though he had never met his child prior to being given custody. The law was enacted in 1975, after a study found that as many as 35% of Native American children were being separated from their homes, and placed in adoptive care because of the lack of culturally appropriate and sensitive child custody laws.

However, the Supreme Court recently overturned that decision, ruling that the language of the law protecting Native American custody refers to a parent who already has custody of the child, and loses custody of the child. In this case, the father never had custody of the child, and in fact, had never met the child before custody was granted to him.