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An adopted child’s custody hinges on judicial interpretation

On behalf of Law Office of Ann A. Thomson, A Professional Law Corporation posted on Friday, November 2, 2012.

Generally, family law issues that arise in California are determined by California laws. California has its own set of laws related specifically to these issues, including child custody. Even though family-based issues, such as child custody, are governed by state laws, a state law can be pre-empted by an overriding federal law.

A couple, who resides outside of California, is facing this type of legal battle in a child custody determination of their adopted daughter. The young girl at the heart of this issue is a 3-year-old girl. The adoptive family was at her birth, has cared for her since her birth and later formally adopted the young girl. The child custody challenge began last year when the biological father sought formal custody of the young girl. The biological father was ultimately granted custody by a state court and removed the young girl to another state.

The state court that granted the biological father custody of the young girl did so pursuant to the Indian Child Welfare Act, which is a federal law. The adoptive parents claim the decision and application of the federal law is erroneous, especially when the biological father does not have parental rights under state law.

The complication over the application of the federal law is that the federal law is not uniformly applied by all states, potentially due to a lack of judicial interpretation of the federal law. The adoptive parents recently requested a ruling on their child custody issue by the United States Supreme Court. The adoptive couple has asked the court to make a determination that requires interpretation of the overriding federal law.

Source: Augusta Chronicle, “S.C. couple appeals Cherokee child custody case to US Supreme Court,” Bruce Smith, Oct. 5, 2012


From offices in Seal Beach, the Law Office of Ann A. Thomson serves clients throughout Southern California in communities such as Seal Beach, Santa Ana, Brea, Yorba Linda, Fullerton, Corona Del Mar, Costa Mesa, Newport Beach, Irvine, Laguna Beach, Dana Point, Mission Viejo, San Clemente, San Juan Capistrano, Anaheim, Fountain Valley, Garden Grove, Long Beach, Huntington Beach, Norwalk, Torrance, Rancho Palos Verdes and Los Angeles.