The Best Interest of the Child or simply the Adults’ Interest?

This guest post is from Regent 2L law student and current Family Law student Brittany Jones:
Two young girls stripped from the only homes they have ever known. The reason: one girl was kidnapped, and the other because she part American Indian. One was moved because of government compulsion; the other because her adoptive parents were seeking her best. Nuahua was kidnapped in north-western China in 2010, and was adopted by a couple who were unable to have children. Her adoptive parents were told that she was an unwanted second child. However, she was very much wanted. Her kidnapping propelled her father on a pursuit that cost him his job and his wife. Once her father found her, Nuahua's adoptive parents did the brave thing and voluntarily reunited her with her biological father in February of 2016. (See the whole story at http://www.dailymail.co.uk/news/peoplesdaily/article-3431788/Heartbreaking-moment-adoptive-father-hugs-daughter-hands-biological-parents-discovering-kidnapped-six-years-ago.html).
Lexi, an American child, was removed from her biological parents when she was seventeen months old because they were unfit to care for her.  She has been cared for by a single foster home for the last four years. However, she has now been forcibly removed from her foster family because she is of Native American descent and her distant relatives decided to adopt her. This removal is predicated upon the Indian Child Welfare Act (ICWA) which seeks to keep children of American Indian descent within tribal homes. This move is reuniting her with her biological sister and relatives that appear to have formed some relationship with her. (See more of the story at https://www.washingtonpost.com/news/morning-mix/wp/2016/03/24/keep-lexi-home-a-foster-familys-wrenching-fight-for-a-6-year-old-choctaw-girl/).
When state family law courts evaluate the best interest of the child, reuniting the child with blood relatives and ethnicity can be a consideration. (See why at Tracing the Foundations of the Best Interest of the Child Standard in American Jurisprudence).  Only under ICWA, however, are they ever considerations. ICWA allows tribes to override a state family court's ability to evaluate all the relevant factors that would promote the child's best interest. Both sides on this issue claim that they are acting in the child's best interest.  But in little Lexi's story, are any of the adults truly thinking about the child? From news reports it is hard to say, but as a general rule it is time for the grown-ups in America to start acting like grown-ups and learn a lesson from Nuahua's adoptive family in China. Children are not pawns to be used to promote a political, economic, or emotional agenda. They have real feelings, attachments, and needs. As Christians we are called to protect the least of these and that means doing the right thing even when we feel like we might lose "our" child. More fundamentally, we are told to put others before ourselves. This should especially apply to those who do not have voice like little Lexi.


  1. It is still unclear to me why it is in the best interest of an Indian child to be forced to go live with some relatives she may never bond with. I saw the despair on the faces of the foster family as social workers invaded their home to take the child due to a court order. Obviously, the child was bewildered by the cheer presence of unfamiliar faces to take her away from the home she has ever known, but she clung to her foster father like everything was alright. My fear is that the implication of this decision may not become evident in a few years, but may become a major imprint on the personality that will emerge as a young adult. The care and love that the foster parents offered may be the best upbringing the she will ever have. On the other hand, I pray that she receives divine favor of love in this new home imposed on her by the law. After all, it was the law that facilitated how she became a member of the foster parent's household in the first place.

  2. The Indian Child Welfare Act (ICWA) is a troublesome measure as stated by Dean Kohm because in most cases the tribe wins. As stated in the article, the best interest of the child is at stake because it prevents the court from considering all of the circumstances that are involved with the adoptive family and the child. In Lexi's case it is wrong for Tribal parents to give up a child at seventeen months of age then use the Federal Government to gain her back when they have this right under the (ICWA) legislation. If you want to reclaim your child when your situation improves for you to do so then that is one thing that the court must decide however to use a Federal Mandate to recover your child is bad because of the child's interests that include his foster family. Our federal government is really tied up in liberal treatment of Native Americans. What applies to other parents that give their child up for adoption because their situation was not adequate enough to take care of the child, should also apply to Native Americans. Like in Lexi's case the best interest of the child is totally obscured by the liberation of Native Americans in this federally mandated act (ICWA)that the idea of the current circumstances of the child with his adoptive parents puts the court into a bad position to follow the mandate versus the alternative measure which is to violate the Constitution. I believe the (ICWA) should be re-evaluated for its worthiness and merit on how to help Native Americans without harming an American adoptive parent and the child himself. The Washington Redskins has been in modern courts for the nickname "Redskins" which Native Americans believe that it is more of a ratial slur than a nickname. From my perspective there is nothing wrong with the nickname because it illuminates the Native American culture and spirit. Too much emphasis is placed on the liberation of the Native American including the (ICWA).