Centuori & Alcoverde, P.C.

Many Arizona readers are unaware that a child's race could come into play during a custody dispute. Most people believe that when parties are unable to come to an agreement on the care and custody of a child, the court will look at what is in the best interests of that child when making a determination. In reality, however, that child custody approach become complicated when the child in question is of Native American descent.

The reason lies in a law known as the Indian Child Welfare Act, which was passed in the late 1970s. At that time, Indian children were being removed from their homes by social workers and given to non-native families, often for no reason other than the fact that the children were living in poverty. The law states that tribal governments are entitled to a say in the placement of Native American children. The ICWA has been called into play in numerous child custody disputes, with the end result of blocking the ability of a non-native family to adopt or raise a Native American child.

In the current case, the child at the center of the matter is now 6 years old. She has been living with her foster parents for a period of four years, after it became clear that her parents were struggling with drug addiction issues and could not care for the child. She is 1/64 Chocktaw through her father's side, although her father never established ties with the tribe or lived on a reservation. The couple with whom she has been placed are relatives of the girl's paternal step-grandfather.  

The foster parents fought against having the girl removed from their care, but were unsuccessful. Their story has led to a great deal of debate on the matter, including questions about the Indian Child Welfare Act and whether that law has outlived its usefulness. For those in Arizona who have a child of Native American descent in their care, this child custody fight may be one of deep personal interest.

Source: New York Post, "An obsession with racial identity is put above the needs of a child", Naomi Schaefer Riley, March 27, 2016

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