ICWA's Pre-Existing Custody Requirement: A Flexible Approach to Better Protect the Interests of Indian Fathers, Children, and Tribes

35 Children's Legal Rights Journal (Loyola of Chicago) 25 (2015)

19 Pages Posted: 10 Oct 2014 Last revised: 1 May 2015

See all articles by Jeffrey A. Parness

Jeffrey A. Parness

Northern Illinois University - College of Law

Amanda Beveroth

Northern Illinois University - College of Law

Date Written: October 8, 2014

Abstract

In June, 2013 the Supreme Court issued its second decision regarding the Indian Child Welfare Act (ICWA) in Adoptive Couple v. Baby Girl (Adoptive Couple). The ICWA provides that an Indian parent’s parental rights cannot be terminated unless the parent’s “continued custody” of the child will likely cause “serious emotional or physical damage to the child.” In Adoptive Couple, the Court found that ICWA’s language of “continued custody” required pre-existing custody for the Act’s protections to apply. This paper argues that ICWA’s pre-existing custody requirement should not automatically bar unwed Indian fathers without earlier physical custody.

In Mississippi Band of Choctaw Indians v. Holyfield, the U.S. Supreme Court recognized in 1989 that the ICWA safeguards tribes’ interests in Indian children and children’s interests in their tribes. Prior to 2013, most states applied ICWA’s protections to any custody proceeding involving an Indian child. Holyfield, state case precedents, and state legislation support the proposition that Indian fathers with no pre-existing physical custody should not be automatically excluded from ICWA protections. This helps ensure that courts consider the tribes’ interests in Indian children alongside Indian children’s interest in a relationship with their tribe.

Adoptive Couple represents an extreme case where there was no meaningful prior parental relationship. Finding that the unwed biological Indian father made no meaningful steps to assume the responsibility of parenthood and abandoned the child before birth, the Court found that there was no custody to evaluate so that ICWA’s protections did not apply. While ICWA requires “continued custody,” this paper suggests “continued custody” is not limited to physical custody. This paper posits that where a non-physical custody Indian father demonstrates efforts to assume parenthood, “continued custody” should exist so that ICWA’s protections apply.

Keywords: adoption, ICWA, Indian children, Holyfield, pre-existing custody, Indian fathers, Indian tribes, continued custody, Indian Child Welfare Act

Suggested Citation

Parness, Jeffrey A. and Beveroth, Amanda, ICWA's Pre-Existing Custody Requirement: A Flexible Approach to Better Protect the Interests of Indian Fathers, Children, and Tribes (October 8, 2014). 35 Children's Legal Rights Journal (Loyola of Chicago) 25 (2015). Available at SSRN: https://ssrn.com/abstract=2507319

Jeffrey A. Parness (Contact Author)

Northern Illinois University - College of Law ( email )

Swen Parson Hall
DeKalb, IL 60115
United States

Amanda Beveroth

Northern Illinois University - College of Law

Swen Parson Hall
DeKalb, IL 60115
United States

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