During the oral arguments of the adoption case before the U.S. Supreme Court this week, I heard lawyers working hard to explain what is in a young child's best interests. This is unusual. Family law issues like this rarely come before the court. Justice Scalia noted that the last time the court considered a case involving the Indian Child Welfare Act (ICWA), a 1978 federal law passed to stop the breakup of Indian families, was over a quarter century ago.
The case involved a child whose father, a member of the Cherokee tribe, wants to provide the child a home. What I heard in courtroom was a lot about the law; concepts like estoppel that only we lawyers would understand. There was discussion about how state courts have either applied or ignored the act. On one side, lawyers argued that the best interests of the child -- a common legal criterion for deciding child custody cases -- requires that the child remain with the adoptive parents. On the other side, lawyers argued that good practices enshrined in federal law required that the father be heard and allowed to take custody of his child. My organization, the National CASA Association, joined in a brief supporting the father's and the tribe's side of the case. We based this decision on the belief that ICWA represents best practices that should apply to cases involving all children.
But what I kept thinking about in that courtroom was the two million children who have had a court-appointed special advocate or volunteer guardian ad litem over the past 35 years. These children have taught us a lot about what helps children and what hurts them.
Because of this extensive experience from the front lines of child protection, we know a thing or two about best practices that work when courts have to decide where a child will find a permanent home. We know, for example, that unless the court's decision about a child's best interests is based on extensive information, it may be no more than guesswork. We know that this information is most useful when shared fully among the parties to the case. Everyone involved -- the parents, the child or child's representative, the court -- needs to know the facts, understand the proceedings, and be able to participate in order to make informed decisions. Better clarity early in the case could avoid the wrenching situation the court faced yesterday.
We also know there are no "ideal" parents. If ideal parenting were the legal requirement for custody, most of us parents wouldn't have custody of our children.
We also know that maintaining biological and cultural ties -- concepts fundamental to the development of ICWA -- can be critical to a child's positive emotional development and sense of self. We have seen adoptions disrupt when children feel disconnected to their past, and older youth hurting because there is so much they do not know or understand about their biological parents. In all kinds of cases, whether they involve American Indian children or not, we have found extended family members, particularly on the father's side, who would have been willing and able to provide a safe home for a child, but who were never contacted or considered.
The law discussed in court yesterday is more than a collection of esoteric legal procedures. Those processes represent the kind of human understanding that must underpin any court's decision making about the well being of children. Justice Kennedy yesterday expressed a deep understanding of the difficult decision judges have to make when they decide where children will live. Juvenile and family court judges make some of the most important decisions of any court in the land. Human understanding is important to those decisions.
Outside the courtroom, I talked with several tribal members about the case. The overwhelming feeling was that "the true story is not being told." This was not so much about the particular decision the court will make in the case sometime this June. It was about the important history of the legislation, the way it was designed to overcome a terrible history of removal of Native American children from their homes and their heritage. American Indian tribes have inherent powers to govern their members because they were independent nations before Europeans arrived. Yet I was surprised that sovereignty only came up twice in the oral argument.
Take the time to look beyond the emotions of yesterday's case. To find out more about the history of behind the legislation, you can find resources from organizations like the National Indian Child Welfare Association, or go to the Tribal Court Clearinghouse.
Justice Breyer yesterday mused about the need for judges like King Solomon to decide these cases. The point should be to avoid the need for the Solomonic judgment. That requires greater understanding by the public and professionals of the law, its historical underpinnings, and best practices in all court processes that relate to the placement of children. It is in every child's best interests that these processes work well from the very beginning, so that no child is ever again caught between good adoptive parents and a good biological parent.
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