If you’re taking steps towards adoption, the Indian Child Welfare Act is a law that might impact you. The Indian Child Welfare Act is a federal law that creates rules to follow when qualifying children are involved in an adoption. In order to complete your adoption in the best way possible, it’s critical to understand the Indian Child Welfare Act and how it applies to your case. Here’s what you need to know about the Indian Child Welfare Act:
What is the Indian Child Welfare Act?
The Indian Child Welfare Act is a U.S. federal law. It applies to children who are eligible for membership in a Native American tribe. When an eligible child may be placed outside of their home for any reason, the Indian Child Welfare Act creates rules that everyone involved in the adoption must follow. The rules apply to adoptive placements, pre-adoptive placements, foster care and more. The purpose of the Indian Child Welfare Act (ICWA) is to preserve Native American culture and ensure that removals are in the best interests of the child. The ICWA became law in 1978.
Does the Indian Child Welfare Act apply to adoptions?
Yes, the Indian Child Welfare Act applies to adoptions. The ICWA applies to all adoption, foster care and pre-adoptive placements. It even applies to step-parent adoptions and adoption within an extended family. If your child is a qualifying child, the ICWA applies to your adoption case.
The Indian Child Welfare Act and adoptions
Perhaps the most notable aspect of the ICWA is that it creates a list of preferences for adoptive placement of a Native American child. The courts must first look to preferences that are the top priority for a qualifying child according to the ICWA. If no qualified and willing adoptive placements are found, the court may then move down the list of priorities in order to find a placement for the child.
First, the court must look to members of the child’s extended family. If there’s a qualified extended family member willing to adopt the child, the court must place the child with the family member. When the court decides if the family member is qualified, they don’t compare the family to other families who may want to adopt. Rather, if the extended family members are qualified to adopt in their own right, that’s where the court must place the child.
If no extended family members are found, the court may then look to other members of the child’s Native American tribe. If there are still no qualified and willing adoptive families found, the court may then look to other Native American families. Only once all of these priorities have been exhausted can the state look to place a child for adoption with a non-Native American family.
Does the court have to follow priorities under the Indian Child Welfare Act?
The court may deviate from the order of priorities for good cause. Good cause might include the preference of the biological parents or extraordinary needs of the child. The burden of proof for what counts as good cause depends on the state. Some states think a simple preponderance of the evidence is enough while other states want more convincing proof of good cause.
A qualifying child has a right to information about their biological family
If a child qualifies for protections under the Indian Child Welfare Act, they have a right to information about their biological family. Usually, in North Carolina, an adoption may be open or closed. When an adoption is closed, the child may only receive information about their biological family in very limited circumstances.
When an adoption falls under the ICWA, the court must provide the child with information about their biological family. When the child turns 18 years old, the court must tell them about their biological parents and their tribal affiliation. The court must give them all of the information that they need in order to exercise their rights of tribal membership. The court may not withhold the information even if the parents request confidentiality or the court believes that it’s not in the best interests of the child to receive the information. If the ICWA governs the adoption, the child has a right to the information when they turn 18 years old.
The Indian Child Welfare Act allows for challenges for up to two years
Another important part of the Indian Child Welfare Act is the amount of time that a person can challenge an adoption. A person with standing has up to two years in order to challenge an adoption on the grounds of fraud or duress. If you’re adopting a child and the ICWA applies, it’s important to remember that a person with standing may step in and challenge the adoption for up to two years after the adoption is complete.
Consents under the Indian Child Welfare Act
A parent may consent to an adoption even if the Indian Child Welfare Act applies. In an ICWA case, the parents must consent to the adoption in writing, and the consent must be recorded before the judge. The judge must be satisfied that the parent fully understands the consequences of their consent. They must find that the parent understands the consent in English or they must arrange for translation of the proceedings. A parent may not consent to the adoption until at least 10 days after the child’s birth.
Required notices under the Indian Child Welfare Act
If the state wants to place a child outside of the home without the consent of the parents, the court must give notice to both the parents and the child’s tribe. Representatives from the tribe have standing to petition in the case. Usually, if tribal representatives petition in a case, they petition in order to challenge the child’s placement.
Jurisdiction in Indian Child Welfare Act cases
Both federal and state courts have the right to challenge jurisdiction in Indian Child Welfare Act cases. It’s important to work with an attorney in order to file your claim in the right court. The ICWA continues to be the subject of review and scrutiny. On October 4, 2018, a court ruled that the ICWA unlawfully gives some children preferential treatment in adoptions. The State of North Carolina was not involved in the lawsuit, and it’s important to continue to comply with the ICWA’s requirements any time that you pursue an adoption that may involve a Native American child. Compliance with the ICWA can help you ensure that your adoption is complete under North Carolina and federal law.