Jan 12, 2013 | Child Custody


Many adoptive parents here in Illinois may share the same nightmare, that of the biological parents attempting to regain custody post-adoption. State and federal adoption laws are written in such a way that makes this rare, however, a couple of high-profile cases over the years have demonstrated that this can happen. A case that is currently before the U.S. Supreme Court surrounds this issue.

The case involves the 3-year-old biological daughter of an unmarried couple. Before the woman gave birth, the couple broke up and the man waived his parenting rights through a text message. The woman then put the child up for adoption. However, after the child was adopted at birth, the biological father filed for custody.

In many cases, the biological father’s custody filing may not have carried much weight because his name was not on the birth certificate and he failed to assert his parental rights when he had the opportunity. However, this man is Native American and Native Americans have additional child custody rights. In 1978, the Indian Child Welfare Act went into effect to give American Indian parents and tribes the right to have a say in the custody of Indian children. This was done because at the time a devastating number of Indian children were being removed from their homes and adopted out of their tribes.

At the end of 2011, a state supreme court ruled that the girl must be returned to her biological father under the ICWA. The U.S. Supreme Court has now taken up the case to determine whether and how the ICWA should apply in this case.

The court will have to decide what an unmarried father must do to be considered a parent under the ICWA. A decision is expected by early summer.

This case illustrates one of the complexities of child custody and adoption law in this country. Child custody and adoption matters are very delicate and the stakes are high for everyone who is involved. Those who are involved in an adoption or custody issue are wise to learn about their legal rights and responsibilities.

Source: Reuters, “Supreme Court to hear American Indian adoption parents,” Jonathan Stempel, Jan. 4, 2013

  • More information about adoption law is available on our Rockford family law firm’s Adoption page.