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Center for Advanced Studies in Child Welfare

Center for Advanced Studies in Child Welfare

A custody battle headed to the U.S. Supreme Court

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This guest post was written by Faiza Ali.

A Custody Battle Headed to the U.S. Supreme Court

EP-130119670.jpeg [Veronica with her father, Dusten Brown. Image courtesy of Post and Courier]

This article (above) is about an adoption case involving a 3 year old Native American Child that is set to start trial in April at the U.S. Supreme Court.

After two years of waiting, Dusten Brown who is of Cherokee Indian Heritage, won a custody battle in a South Carolina Supreme Court involving his daughter Veronica who was living with her adoptive parents Matt and Melanie Capobianco. Veronica's mother, who at one point was engaged to Brown, is non-native and has two other children from previous relationships. Not being able to afford to care for a third child, and due to lack of financial support from Brown, she contacted and gave him an option of paying child support or give up his parental rights. Through a text message he chose the latter.

During the adoption process, she informed the adoptions attorney about Brown's Cherokee Indian Heritage. She also misspelt his name and did not know his birthdate, which made it hard for the welfare division of the Cherokee Nation to confirm his membership in the tribe.

Four months after Veronica was born, Brown was served and signed a legal document that stated he was not going to contest the adoption. He immediately realized what he had done and tried to take the paper back but it was too late. He decided to request a stay of the adoption and also establish paternity after he consulted with an attorney. It took two years before the case was heard.

Being a member of Cherokee Nation and the paternity confirmed, a family court judge granted him custody of his child. After adopting and raising Veronica for two years, the Capobiancos' were asked to hand her over back to her biological father who took her back to Oklahoma.

The strength in this article is the Judge's consideration when making his decision of the "Federal Indian Welfare Act of 1978, which not only protects the best interest of the child but also promotes the stability and security of Indian tribes and families". The supporters of ICWA and many Native American law scholars argue, "ICWA is the most important American Indian Law ever enacted". Taking away a child from the only home and only family that she knew for two years and the continuous long custody battle is not in the interest of the child and might later affect her development and her ability to form long-term relationships.

Lisa Blatt, who was named one of the most powerful women in Washington, is the attorney who will again represent the adoptive family in their appeal. Charles Rothfield will represent Veronica's biological father and he also has argued over 200 cases in front of the high court.

This will be the second case involving a native child to be heard at the U.S Supreme Court and, therefore, a lot of people are interested in the outcome which will affect how other future cases will be decided.

The Capobiancos have filed an appeal at the U.S. Supreme court, which will be heard in April.

Information about the court decision is here.

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