One more quick note here. Today the US Supreme Court agreed to review a case known as Adoptive Couple v. Baby Girl. It’s rather an odd title but the issue it presents is potentially quite important. Supreme Court forays into family law are infrequent (because most family law is controlled by state rather than federal law) and they are always worth following.
The link to the Scotus blog will take you to all the briefing of the case, but I found this brief particularly helpful. I’ll summarize facts and background, taken from several briefs, here.
ICWA is the Indian Child Welfare Act. It was enacted to protect Indian parents, children and tribes in response to a long history of systematically removing Indian children from their homes and their tribes. It provides for enhanced procedural protections for an Indian child and for extra safeguards before the rights of an Indian parent can be terminated.This means, of course, that being a parent (and here it means legal parent) matters. If you are not a legal parent then there are no safeguards. If you are a legal parent, then there are safeguards.
Now there has been frequent discussion–most recently with regard to Utah–over the ways in which states assign legal parentage to unmarried men. This is the point raised in the case before the Supreme Court.
Birth mother is not Indian. She lived in South Carolina. She wished to place the child for adoption. Sometime during the pregnancy, Birth Father sent a text to Birth Mother stating that he wanted to relinquish any rights he might have. Birth Father is a member of the Cherokee Nation. After receiving the text, Birth Mother began adoption proceedings. Adoptive Family (and not Birth Father) suppored Birth Mother during the last months of her pregnancy. When the child was born, she went to live with Adoptive Family.
It seems clear that Birth Father did not do the things he would be required to do under South Carolina law to be recognized as a legal father. (I’m not sure what they are, but it doesn’t seem to be important.) As far as I contend, no one contends that the South Carolina standard violates the US Constitution. But the South Carolina Supreme Court decided that under ICWA Birth Father was a legal parent even though under South Carolina law he was not. It’s not entirely clear to me what the standard the SC Supreme Court used was–but it’s certainly not ordinary SC law.
There’s enormous confusion among the states on this point. Some states apply their own law to determine legal parental status first and only then turn to ICWA. Others, like SC, view ICWA as providing an indepedent standard. Ultimately the question is what makes an unmarried man a legal parent an where does the rule of law on that question come from–ICWA or state law? It will be important to see what the Court has to say.