Courts in Virginia and across the country are often given the difficult task of determining what is in the best interest of a child. Often, different sides have different beliefs regarding what is in the actual best interest; sometimes those beliefs may even contradict what is required by state or federal law. Because of this, a federal law regarding child custody of certain children is now being tested.
The issue surrounds the 1978 Indian Child Welfare Act. With its passage, priority was given to Native American families regarding the adoption of children who are also Native American. However, a family in another state is now challenging the law as they attempt to adopt a child whose mother and father are Navajo and Cherokee, respectively.
The family argues that because the law is based on race, it is unconstitutional. If their lawsuit is successful, it could ultimately impact many others. However, those who have researched the law claim that it is more based on political designations rather than racial ones. In fact, some argue that membership to a federally-recognized tribe is more akin to being a citizen of another country.
This case is not the only one challenging the decades-old federal law. Currently, the Fifth Circuit Court of Appeals must decide if a lower court’s decision that the law is unconstitutional will be upheld while other cases in other states are also challenging it. Regardless of the decision made, many people believe that the fate of the law will ultimately be determined by the U.S. Supreme Court. Unfortunately, those involved in child custody cases in Virginia and across the country — regardless of whether they are related to the Indian Child Welfare Act — may feel overwhelmed and unsure how to proceed, especially if it becomes necessary to appeal a decision without the help of an attorney with family law experience.