Decisions of Interest

After the South Carolina family court finalized the adoption, another wrinkle developed. The father, who has been living in Oklahoma with his daughter for several years, refused to give up. He is seeking relief from the courts of Oklahoma and of the Cherokee Nation. South Carolina authorities have issued an arrest warrant against the biological father for interfering with custody. In the meantime, the child's future permanent placement remains uncertain.'

Hague Convention: Relationship with Sibling Is'a Factor to Consider

The U.S. Court of Appeals for the Second Circuit has affirmed a district court ruling that denied a father's petition for return of his son to Mexico, because the court agreed with the lower court that the boy had become acclimatized to his U.S. home, and found no error in that determination's being made based in part on the lower court's desire to keep the boy with his older sibling. Broca v. Giron, 2013 U.S. App. LEXIS 14489 (2d Cir. 7/18/13).

The children in Broca were taken from Mexico in July 2010 by their mother. This mother, daughter and son settled in Brooklyn. They were still living there in late 2011 at the time the father filed a petition seeking the return of the children in accordance with the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89, as implemented by the International Child Abduction Remedies Act, 42 U.S.C.S. ” 11601-10.

The evidence presented showed that the older child, the daughter, was well-settled in her new home, but that the son was less so. The district court found that there was adequate reason to deny return of the children based on their acclimatization, even though the boy was not settling into his new country as easily as was his older sister. In making its ruling, the district court specifically noted that it would be very disruptive to both children if they were separated from each other.

The father appealed only that part of the district court's decision concerning the return of his son. He argued that the district court erred by considering the importance of keeping the boy with his sister when it should have determined instead if he had acclimatized to his new country of residence. The Second Circuit turned to its own previous decision in Lozano v. Alvarez, 697 F.3d 41 (2d Cir. 2012), which lists some of the factors that courts should consider when assessing a child's acclimatization to his new home. One of these is “whether the child has friends and relatives in the new area.” The Second Circuit then concluded that the boy's “consistent school attendance, involvement in church, and strong relationships with friends and relatives in the area, in particular his mother and sister, all support a conclusion that he is well settled.”

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Indian Adoption Case Drags On

The Supreme Court of South Carolina ordered its state's family court to finalize the adoption of the child at the center of the drawn-out custody proceedings in which the U.S. Supreme Court determined that the Indian Child Welfare Act (ICWA) does not give superior custodial rights to a Native-American parent who has voluntarily relinquished his rights to custody of his child. Adoptive Couple v. Baby Girl, 2013 S.C. LEXIS 176 (S.C. 7/17/13).

The child in question in this adoption proceeding was born in Oklahoma to a man who is a member of the Cherokee Nation and a non-Indian mother. The father voluntarily gave up all claim to the baby, both before and after her birth, and offered no support. The mother opted to place the child with a potential adoptive couple living in South Carolina. When the birth father learned of the adoption, he sought custody of the child, arguing that the ICWA required that custody be given to him based not only on his biological bond, but also on the child's right to be raised in the Cherokee culture. The South Carolina State Supreme Court concluded that under South Carolina law, a father who gave up his rights to his child could not change his mind and automatically get her back. A best-interests inquiry would be used to determine her placement. However, it found that the ICWA trumped this state-law inquiry, so custody must be given to the father. The U.S. Supreme Court reversed, holding that the father never had custody of the child and that the ICAW therefore did not apply.

After the South Carolina family court finalized the adoption, another wrinkle developed. The father, who has been living in Oklahoma with his daughter for several years, refused to give up. He is seeking relief from the courts of Oklahoma and of the Cherokee Nation. South Carolina authorities have issued an arrest warrant against the biological father for interfering with custody. In the meantime, the child's future permanent placement remains uncertain.'

Hague Convention: Relationship with Sibling Is'a Factor to Consider

The U.S. Court of Appeals for the Second Circuit has affirmed a district court ruling that denied a father's petition for return of his son to Mexico, because the court agreed with the lower court that the boy had become acclimatized to his U.S. home, and found no error in that determination's being made based in part on the lower court's desire to keep the boy with his older sibling. Broca v. Giron, 2013 U.S. App. LEXIS 14489 (2d Cir. 7/18/13).

The children in Broca were taken from Mexico in July 2010 by their mother. This mother, daughter and son settled in Brooklyn. They were still living there in late 2011 at the time the father filed a petition seeking the return of the children in accordance with the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89, as implemented by the International Child Abduction Remedies Act, 42 U.S.C.S. ” 11601-10.

The evidence presented showed that the older child, the daughter, was well-settled in her new home, but that the son was less so. The district court found that there was adequate reason to deny return of the children based on their acclimatization, even though the boy was not settling into his new country as easily as was his older sister. In making its ruling, the district court specifically noted that it would be very disruptive to both children if they were separated from each other.

The father appealed only that part of the district court's decision concerning the return of his son. He argued that the district court erred by considering the importance of keeping the boy with his sister when it should have determined instead if he had acclimatized to his new country of residence. The Second Circuit turned to its own previous decision in Lozano v. Alvarez , 697 F.3d 41 (2d Cir. 2012), which lists some of the factors that courts should consider when assessing a child's acclimatization to his new home. One of these is “whether the child has friends and relatives in the new area.” The Second Circuit then concluded that the boy's “consistent school attendance, involvement in church, and strong relationships with friends and relatives in the area, in particular his mother and sister, all support a conclusion that he is well settled.”

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