Q: My son wants his stepfather to adopt him, but my son and I are Native American. Can we still file for ourselves in Utah?
My son and I are both members of a federally recognized tribe. We do not live on the reservation. I assume ICWA will apply, but as neither biological father or step father are Native American, I am sure my tribe would consent. Bio father has not contacted my son or paid child support in over 5 years. We currently assume he has moved to Canada. I want to file using the forms on the UT Courts web site, but the form has this line: (10)The adoptee is not an Indian child as defined in 25 U.S. Code Section 1903.
A: Hello. ICWA is applicable and very complicated when it comes to adoption cases, and the forms on the court's website are for basic adoptions. Honestly, I am surprised that the court's website has adoption forms at all, as there are many varieties of adoption cases and overall they are complicated. If done wrong, the decree could be overturned. Unfortunately, people are lulled into a false sense of security because they received the forms from the court, but the court cannot give legal advice, nor are they aware of all the facts and helping you make decisions based upon your particular fact pattern.
Mike Branum agrees with this answer
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A: I agree with Mr. Barnes and would encourage you to hire a competent family law attorney if you are able. If you cannot afford an attorney, I would encourage you to move forward with the forms provided by the court system. If there is a box to check next to (10), don't check it. If there is not a box, then I would delete the line (if possible, otherwise strike through the line and initial after printing).
The ICWA does apply but the biological father has no standing to assert any right under the Act. He has rights as a parent and you will need to make a good faith effort to locate him because the adoption will terminate his parental rights. This is likely the area where you would most benefit from the assistance of counsel. An attorney will have resources to attempt to locate the absentee parent and, in the alternative, would be able to walk you through what is known as "alternative service" should efforts to find the biological father prove unsuccessful.
The primary intent of the ICWA was to ensure Indian children are placed in homes with members of their tribe. That is not an issue here where the child is already living with a biological parent and the other parent has no membership. ICWA will need to be addressed, but the Court can easily determine that adoption by the stepfather does not violate the ICWA. If you have to file on your own, I hope you are assigned a judge with patience working with unrepresented parties. Often in adoption proceedings - particularly where the adoption is the child's preference and they are able to appear in court to confirm - I have seen judges work well with the parties to get the adoption done.
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