By Victor Kessler
A man and woman fall in love. They get engaged and start planning their wedding. The woman discovers she’s pregnant; she tells her fiancée, but it tears apart their relationship. He won’t support her financially until after the wedding, she breaks up with him. Months later, she texts him asking for child support for their daughter. He texts back that he would rather give up his parental rights instead.
Poor and alone, the soon-to-be mother looks into adoption. She meets a nice couple from South Carolina who agree to take care of the baby girl. They support the mother during her pregnancy and are in the delivery room when the time comes. The adoptive father even cuts the umbilical cord. For four months, the couple looks after the baby, allowing the mother to visit her child whenever she likes. Then the biological father returns, looking to take custody of his daughter. A court battle ensues, and at the age of two the little girl meets her dad for the first time after the family court awards him custody. The case makes it all the way up to the Supreme Court.
It may sound like a soap opera, but Adoptive Couple v. Baby Girl is a real-life drama with serious implications for the family and thousands like them nationwide. The legal issue before the Court revolves around the Indian Child Welfare Act of 1978 (ICWA), which Congress passed to combat abusive child welfare practices that were forcibly breaking up Indian families and placing the children into foster care in non-Indian homes. The ICWA sets higher standards for terminating the rights of an Indian parent than states typically require under their own domestic laws. Because the father in this case is a member of the Cherokee Tribe, he was able to contest the adoption under the ICWA. The South Carolina Supreme Court ruled that the federal law applied and affirmed the family court’s award of custody to the father. But for the application of the ICWA, the adoption would have likely gone through and the little girl would have stayed with her adoptive parents.
The Supreme Court, in an opinion authored by Justice Alito, overturned South Carolina’s ruling. According to the Court, the ICWA was designed to prevent the removal of an Indian child from her family, not to create rights in a parent who had never had legal or physical custody of a child. Likewise, the majority decided that a provision of the ICWA requiring that efforts be made “to prevent the breakup of the Indian family” before terminating parental rights does not apply where the “breakup” happened long before the child’s birth. Justice Alito argued that it would be “unusual” to give custody to a father who had abandoned his child before her birth just because he happened to be an Indian, when state law would normally side with the mother and the adoptive parents. The dissenters express concern that the ruling will adversely affect all Indian parents who have never had formal custody of their children, even those who are involved in their offspring’s lives and who provide financial support to their families.
Ultimately, this case restricts the operation of the ICWA, a federal statute that sets a uniform standard to govern adoptions of Indian children nationwide. The Court’s ruling swaps out national uniform treatment of Indian parents under the ICWA for uniform treatment of non-custodial parents, Indian and non-Indian alike, under state law. While the federal government typically has jurisdiction over Indian affairs, this tips the scales back towards the states in an area where they have traditionally exercised almost exclusive authority, family law and the regulation of domestic life. As for the little girl, she’ll stay with her biological father while the South Carolina Supreme Court hears the case one more time.
Victor Kessler is the Legal Intern at the State and Local Legal Center in Washington, D.C.