If you're considering adopting a child of American Indian or Alaska Native heritage or if you're in a tribe and your child is the subject of a custody case that has or could result in removal from the home, it's essential to be informed about the Indian Child Welfare Act. This federal law was passed in 1978 to "protect the best interests of Indian children and to promote the stability and security of Indian tribes and families" at a time when a large number of Indian children were being taken from their homes and placed in private and public agencies.
The law applies in custody proceedings involving any child who either belongs to a federally recognized tribe or is eligible for membership in one because he or she is the biological child of a tribe member. Tribes can determine their own eligibility and membership requirements.
"Active Efforts" to Involve the Family and Tribe Are Required
Under ICWA, the biological family and the tribe have the right to be involved in any case where a child may be placed in a foster or adoptive home. They also have the right to ask that the case be heard in their tribal court.
Child welfare and adoption agencies are required under ICWA to make "active efforts" to ensure that the family and tribe are involved in child custody cases in a timely manner so that the family is provided with the culturally-appropriate services it needs to help a child remain in or return to his or her biological family or Indian custodian. For caseworkers, this means ensuring that families are notified of any custody proceedings and can be involved if they want to be.
Cases in Which ICWA Doesn't Apply
There are some child custody cases involving Indian children in which ICWA doesn't apply. These include parental custody disputes, juvenile delinquency proceedings involving an offense that would be considered a crime for adults and cases under the jurisdiction of a tribal court. It also doesn't apply to anyone 18 or over or to someone younger who is legally married.
Whether the child involved is your own or a member of your biological family or you are a non-tribe member seeking to adopt an Indian child, you can benefit from the guidance of a family law attorney experienced with ICWA. These attorneys work to ensure that the law is being applied correctly and that the best interests of the child are being considered.
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