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Can ICWA Affect My Kansas Adoption? Answered by a Kansas Adoption Attorney

Can ICWA Affect My Kansas Adoption? Answered by a Kansas Adoption Attorney
April 15, 2016 James Greenier

ICWA, or the Indian Child Welfare Act, was established by the Federal government in 1978 to ensure regulations were in place to protect Native American children and families’ rights in particular aspects. In various cases of adoption in Kansas, birth parents may report some Native American ancestry. Based on this reporting, The Indian Child Welfare Act must be considered in every adoption of an American born child. If the child is found to be registered and is an “Indian child” ICWA applies. The involvement of ICWA in an adoption case may complicate things as opposed to a standard adoption matter. However, this should not discourage you from pursuing as an experienced Kansas Adoption attorney will be able to walk you through the process and assist you with a successful adoption.

Laws Defining ICWA and Reporting

An Indian child is one who is either (1) a member of an Indian tribe or (2) eligible for membership in an Indian tribe and the child of a member. The criteria defining a child’s tribe membership is unique and varies depending on that tribe’s eligibility requirements and therefore can be different between states. Because ICWA is a federal law, it is upheld in Kansas adoptions as well as all other states. If either biological parent reports Native American ancestry, your attorney or adoption agency may be required to send a letter to the tribe addressing the matter of the child’s ancestry. The majority of responses do not state or claim the child’s registration. However, if the answer if yes, the ICWA rules apply.

A knowledgeable Kansas adoption attorney can assist in deciphering and defining specific ICWA regulations. However, they are generally established to protect a birth parent who wishes to consent to the adoption of an Indian child. The stipulations continue to state that consent may not be given until ten days after the child is born, and must be given before a judge and may be revoked before the adoption is final. ICWA also requires that notice must be submitted to the applicable Indian tribe if the case involves involuntary termination, specific placement preferences and the ability of the  tribe right to intervene in the adoption. Kansas law derived from a Supreme Court ruling also states that “ICWA contains placement preferences that must be followed unless good cause exists to overcome them.” In general, most tribes and ICWA regulations desire the child to be placed and remain within the Indian community.

A reporting by a biological parent of Native American ancestry does not conclude the ability to adopt and should not be discouraging. The majority of Kansas and surrounding area adoptions that involved reported Native American heritage cannot be validated. The law states that in cases where the Native American ancestry is speculative, ICWA may not apply.

Contact a Kansas Adoption Attorney to Answer All of Your Questions Today

With over 40 years of adoption experience in Kansas, Attorney Tom McDowell has helped grow many families. He is familiar with the adoption process in Kansas and can you through it step by step to success. Call Kansas Adoption Attorney Tom McDowell at McDowell Chartered Legal Services today at (316) 633-4322 to properly file for adoption.