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Child custody dispute: Native American heritage deciding factor

by | Mar 24, 2016 | Child Custody, Firm News |

A person’s identity is not always a simple matter. Heritage and roots can run deep, but the people around us undoubtedly shape us in a variety of ways. For many California residents, family is more about people and personalities than about blood. A complex child custody case currently in the news highlights the issues associated with such a divide.

A girl was removed from her birth parents in 2011, when she was 2 years old, reportedly because they indulged in substance abuse. In addition, the father — who has some Native American roots — had a criminal record. After two foster placements were unsuccessful, the girl has lived a little over four years with a third set of foster parents and their children in California. Also in 2011, family members living in Utah, who are related to the child via her step-grandfather, became aware that she was living with a foster family and expressed interest in adopting her. Neither the foster family nor the Utah relatives are Native American.

The case rests on the Indian Child Welfare Act of 1978 (ICWA). The father has never lived on a reservation among the Choctaw tribe, to whom he is distantly related, nor has he ever had any meaningful contact with the culture; however, based on the ancestry of her father, the child is 1/64th (1.56 percent) Native American, and this level of kinship was enough to attract the involvement of the National Indian Child Welfare Association. In 2014, the California Court of Appeals originally ruled that the foster family could keep the child while they continued the custody battle with her Utah relatives. Recently, the Los Angeles County Department of Children and Family Services was ordered to place the child instead with her relatives in Utah, in compliance with the ICWA.

Deciding on the best course of action in a child custody case such as this may take a great deal effort. Factors, such as whether the development and well-being of the child will be adversely affected by being uprooted, must be considered. Whether the conclusion is that the ICWA is controlling, or whether the foster family who have raised the child for the last four years should continue to do so, it is essential that the best interests of the child be at the forefront of any decisions made regarding her future.

Source: NBC News, “6-Year-Old Girl Taken From Longtime California Foster Family for Being 1/64 Native American“, Elisha Fieldstadt, Mar. 22, 2016


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