A Heartbreaking Custody Case

Up before the Supreme Court right now is a case where parents were forced to give up their adopted two-year old girl that they’ve had since birth.  It’s a crazy and sad story.

The Birth Mother gave the child up for adoption after the Biological Father refused to take any part in the child’s life, waived any parenthood, and contributed nothing financially at any time to the mother or child.  Faced with these circumstances the Birth Mother, who had three other children, gave the baby up for adoption because she could barely afford to support her existing children.  The baby was adopted by the Adoptive Parents who lived together for 27 months.

The Biological Father is 1/100th Native American.  A relevant fact for reasons to follow.

When the Biological Father learned that the baby was adopted, he filed a lawsuit asking for custody.  The kicker of the case is that his claim was based on a federal law whereby Native American children cannot be adopted out without some kind of permission from the appropriate Native American authority.  The state court sided with the Biological Father and held that federal law trumped state law and that since there was no permission given by any Native American authority they ordered the child returned to the Biological Father.

The federal law in question was designed to stem an insidious adoption scheme where Native American children were being taken from their native families for little or no reason and adopted out to non-Native Americans.

Federal law trumping state law is a huge deal … under the state’s “best interest” standard the adoption would have stayed in tact because the child was already established and happy with her adoptive parents making the status quo in the best interest of the child.

The Adoptive Parents were devastated, as anyone can imagine.  They filed suit seeking to get their daughter back.

As it stands it is a three way case.  The Adoptive Parents want their daughter back.  The Biological Father wants his new found custody confirmed.  And the Biological Mother wants her child back arguing that if the child is going anywhere other than back to the Adoptive Parents it should be to her (i.e., that she has superior rights to the Biological Father based on his waiver of parentage).

So now what!?  If the Adoptive Parents win the child gets displaced again.  If the Biological Father wins it’s a great unfairness to the Adoptive Parents AND the Biological Mother.  If the Biological Mother wins she might very well relinquish the child to the Adoptive Parents sparking a new round of confusion and controversy.

This is a mess of the worst kind.  Most lawsuits involve only money were it certainly stings to lose, but it’s only money.  Where a child is involved it is as serious as it gets.

One has to wonder about the fathering capabilities of the Biological Father who now has custody … this is the same guy who didn’t contribute anything financially or paternally during the pregnancy or infancy of the girl.  It was that very failure that probably was the tipping point of the mother’s inability to support the child and thus her decision to put the child up for adoption.  And he “wins” here?!  A tragedy.

As I type I’m wondering what my point is.  I suppose it’s that rules are only approximations … they can’t be confused with the real thing.  Application of law needs a wise hand to make sure that the inherent flaws in all laws are weeded-out and that a fair and just result occurs.

If it were me I’d have ruled that the adoption was invalid under federal law … but that since so much time had passed between the baby and her Adoptive Parents things should be left alone.  Very often in law we find situations where a court basically finds a “technical” winner but then gives somebody else the “practical” victory for reasons that supersede the technical side of it.   Here, the baby and Adoptive Parents developed deep bonds and equity demands that federal law be trumped by basic human rights (embodied in many, many state and federal laws).  I would further argue that State Law never loses its jurisdiction over what happens to its child citizens and that while the federal law in this case is relevant it is not the sole operative law on the matter.   To further support my reasoning I would note that the issue of a fraudulent adoption scheme that justifiably inspired the federal law in the first place is not present here at all.

Isn’t if funny how much clearer things are when the whole world isn’t watching your decision?



About Edward B. Batista

The Law Office Of Edward B. Batista. Offices in Sacramento and Nevada City. Specializing in estate litigation, estate planning, wills/trusts, probate, contracts and real estate.
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