An attorney for Matt and Melanie Capobianco, in a 142-page petition filed with the high court Monday, said the justices should accept the case to settle uncertainty over how the 1978 act should be interpreted.
“State courts have wrestled openly for decades over the meaning and the operation” of the act, attorney Lisa Blatt wrote.
Blatt wrote that the questions the court needs to consider are whether a noncustodial parent can invoke the act to block an adoption initiated by a non-Indian parent under state law. The other issue, she wrote, is whether the act’s definition of parent includes an unwed biological father who does not have legal status as a parent under state law.
Different states have interpreted the law differently, the petition said.
“These acknowledged divisions – involving over half of the country – lead to intolerable uncertainty in an area of law where certainty is needed most: adoption and custody proceedings that involve children,” Blatt wrote.
In July, a split South Carolina Supreme Court cited the act in upholding the return of the Capobiancos’ daughter to her father, a member of the Cherokee tribe. It was the first time South Carolina adoption law was weighed against the federal act.
In the 3-2 decision, the justices said the act confers custodial preference to the child’s father.
The child, who turned 3 last month, was adopted by the Capobiancos. They attended the girl’s birth and cared for her thereafter.
The girl’s biological father sought custody, which he was granted by a South Carolina family court late last year. He arrived in Charleston last New Year’s Eve and took the girl to Oklahoma.
Confusion over the act “spawns litigation that permanently and tragically disrupts established family units” and undermines states’ ability to deal with domestic relations issues, Blatt wrote.
“Only this court can resolve two outstanding issues central to the applicability and administration of a federal statute that impacts thousands of custody cases and countless individuals affected by those proceedings,” she wrote.