Orphan Refugee Adoptions: Ignoring the “Best Interest of the Child”

 

        This guest blog post is courtesy of Peter Hunter, Regent Law 3L:

 

In a previous blog post, found here, the author alluded to the Indian Child Welfare Act (ICWA), by reference to the case of Adoptive Couple v. Baby Girl, 570 U.S. 637 (2013). In that case, the Court indicated its willingness to abrogate the “best interest of the child” standard in adoption and custody cases involving Indian children. The Supreme Court and lower federal courts seldom interject themselves into the field of domestic relations, leaving such matters to the state courts. But, as Baby Girl illustrates, federal law, and policy, preempt state law.

While the majority of people will never interact with ICWA, understanding the Court’s rationale in deciding cases under ICWA is important nonetheless—particularly in cases involving international orphan refugee adoptions.

Simply stated, the rationale employed by the Court in adoption cases involving sovereign Indian nations may now be expanding to cases involving adoptions of international orphan refugees from other sovereign nations.

An ongoing case that has received little attention—due in large part to the secret nature of the proceedings—involves a U.S. servicemember who brought an orphan refugee baby from Afghanistan to the United States. The child’s parents were presumably killed when their village was destroyed during military operations in Afghanistan; the baby was found alive in the rubble. In 2021 the servicemember (an attorney for the Marine Corps.), who had removed the baby from Afghanistan, petitioned a Virginia Court for custody. The Virginia court awarded custody to the servicemember and his wife. The child’s extended family members in Afghanistan later petitioned the U.S. government for the child’s return.

While the details are limited, the U.S. government has admonished the Virginia judge (now retired) who entered the adoption decree, citing, among other things, violations of international law and the potential “fracturing of U.S.-Afghan relations” that resulted from the “abduction” of the child. This case was also complicated by allegations that the servicemember obtained the adoption decree under false pretenses (misrepresenting how the child came into his custody).

And while the federal government has referenced the welfare of the child, as a factor to consider in determining whether the child should remain in the U.S. or return to Afghanistan, it is unclear how returning the child to war-torn Afghanistan would be in the child’s best interest.

It is the author’s opinion that federal courts will begin to apply the same test used in ICWA cases, not predominately predicated on the best interest of the child, in cases involving the adoption of international orphan refugees by American citizens.

Disclaimer: Views expressed in this article are solely those of the author and do not purport to voice the views of the Judge Advocate General, the Department of the Navy, or any other agency or department of the United States.