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Phoenix AZ Family Law Blog

Tuesday, January 31, 2017

Arizona Tribe May Trump the “Best Interest of the Child” in Child Custody Dispute

Q: Does the 1978 federal law known as the Indian Child Welfare Act take precedence over state law and the “best interest of the child” standard of determining custody?

In the vast majority of child custody cases, Arizona family law attorneys know that the most important factor the state courts will consider is what is in the so-called “best interest of the children”. Whenever possible, Arizona favors involvement of both parents in both child custody and visitation, which are referred to as “legal decision-making” and “parenting time”, respectively.

Sometimes one biological parent has custody and the other is not in the picture. If the custodial parent remarries and the new stepparent is raising the child like their own, they might want to take it to the next level by pursuing a stepparent adoption.

Stepparent adoption is easy if agreed to, but is still possible even when contested. A court can terminate parental rights on grounds such as abandonment or abuse if the termination is deemed to be in the "best interest of the child”, thereby opening the door for the stepparent adoption.

But sometimes the children whose custody is being determined may not be living with either of their biological parents and may be in a foster care situation. The biological father may not even know the child exists.

Arizona fathers’ rights are taken seriously and they have “powerful legal recourse” regarding family law matters, including adoption notification and child custody with the laws generally requiring notification of and obtaining the consent of the biological father, if known, prior to any adoption or child placement.

While Arizona and other states generally follow the universally excepted standard of the “best interest of the children” when entrusting the physical custody of children to a parent or guardian, there have been an small handful of isolated cases in the past few years that threaten that model.

The Indian Child Welfare Act of 1978 (“ICWA”) is a federal law that allows a tribe to intervene in cases of placement, custody, and adoption of children with Indian blood-- even children with very little Indian blood.

Recently, an Ohio couple learned that an Arizona Indian Tribe invoked the federal law to block their petition for legal guardianship of their four-year-old foster son who has lived with them since the age of two. The boy’s biological mother, the guardian ad litem, and the state can all agree that the foster placement is in the best interest of the child, but this federal statute can override everything and create an insurmountable obstacle for the foster family. In this case the tribe, not the biological father, reportedly wants the boy.

As expected, all legal remedies are being aggressively pursued. The boy’s foster parents will have to turn him over to “very distant relatives willing to take him” from his biological father’s tribe, unless there is a judicial reprieve. Before those “distant relatives” materialized, the tribe was reportedly going to place the boy—who never lived within the tribe-- in an orphanage. The foster parents are closely watching the outcome of a similar ICWA case involving a 6 year-old California girl ordered removed from her foster parents’ home for tribal placement--the U.S. Supreme Court is expected to decide whether to hear the case at any moment.

It’s heart-wrenching to read such true stories of families torn apart and children being placed in homes which may not be in their best interests. While these ICWA cases are exceedingly rare, they do illustrate the importance of hiring a family law attorney with years of experience in child custody and support, parenting time, stepparent adoption or fathers’ rights.

Cohen Family Law is devoted exclusively to family law matters and has been helping families throughout the state of Arizona for over 30 years. Call us at 602-714-8898 for a free consultation.


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