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Should Supreme Court Consider Native American Law in Custody Battle?

There’s a heart-wrenching custody battle unfolding before the United States Supreme Court. Three-year-old Veronica was given up for adoption by her mother as an infant. Her biological father, Dusten Brown, had no interest in the child for the first few months of her life, but is now challenging the adoption based solely on his Native American heritage.

Trace Gallagher reports that both biological parents gave up their rights to baby Veronica, however at four months old, the father changed his mind. The parents were not married and under South Carolina law, Brown stood almost no chance at getting her back. That’s when he claimed he was a member of the Cherokee Nation, and under the Indian Child Welfare Act, he has the right to reclaim his daughter. So far, the courts have agreed.

Matt and Melanie Capobianco were in the process of adopting Veronica, but it was never finalized because of the appeal. They had the baby for 27 months, but a judge ruled in Brown’s favor. He took custody of her and the Capobiancos haven’t seen Veronica since.

They contend that she is a multi-ethnic child, and therefore, a small amount of Native American blood shouldn’t determine her future. Matt said, “We feel like the law is being abused. […] We don’t feel that this is what it was meant for.”

The welfare act was created in the 1978 to prevent Native American children from being taken away from their tribes. The ruling on this case may decide who’s considered Native American and who is not. Chief Justice John Roberts asked, does one drop of Cherokee blood mean you have protections under the law and does it mean you qualify for benefits.

On Kelly’s Court, defense attorneys David Wohl and Ashleigh Merchant debated the case. Merchant has a personal history connection to the case. She was adopted at birth and said that her biological father fought her adoptive parents for custody when she was two years old. Merchant believes that because the biological dad in the case gave up his rights, his sudden change of mind shouldn’t determine who’s a parent.

Wohl noted that the phrase “best interest of the child” was left out of the act because at the time, Native American children were being placed in white homes citing that reason. Therefore, he said the standard that needs to be considered here is would it be “emotionally detrimental" to leave the child with the biological father.

Watch both parts of the Kelly's Court debate below:

Part 1:

Part 2:

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