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A year ago, my wife and I received a call from a second cousin that was pregnant and unable to raise the child. She knew we had been trying to have another child and had been unsuccessful. We directly asked about the biological father and were told he "took off" when he found out about the pregnancy and his whereabouts were unknown. The cousin lived in Canada. We flew the cousin to the US and the baby was born, she is a US citizen. She is turning one soon and has been with us since she was born. The adoption was finalized in December last year and a couple of weeks ago we received a call from the child's purported paternal grandmother. We do not know how she located us, the birth mother says she has not told anyone about the adoption. We now have been told that the child has First Nation ancestry from Canada, we are non-Native, but still blood relatives, second cousin to birth mother, also non-Native. The birth mother says that the biological father has never tried to contact her about the child. We are trying to find laws (including citations please) that may affect this situation, American or Canadian laws. ICWA does not apply to Canadian tribes, but we are researching any applicable laws to try and find out how this may impact the adoption and whether or not the tribe has any jurisdiction over this situation, if it is determined that the purported biological father is in fact the biological father. We are open to allowing the paternal family to be part of our daughter's life, but obviously want to continue to raise our daughter. We also are involved with the Native American community here and will support our daughter's knowledge and active involvement in her heritage. We just want to be prepared in case things turn south and we end up having a court battle. We hope to avoid this and reach a peaceful resolution but are feeling very anxious right now, not knowing what the future holds.
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Jensboys and Sak would be best to advise you. Perhaps one of the moderators could move this into the correct forum or even the general adoptive parents forum. Both Canada and the US are signatories to the Hague Convention - Sak is the best to answer this part. First Nations in Canada are very protective and their own rules - Jensboys is the best to answer this question. Kind regards,Dickons
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I don't think you have to worry about the adoption being overturned, particularly because you are in another country - but the Canadian reality is that it is EXTREMELY difficult (close to impossible in many cases) to adopt a First Nations child to non-First Nations parents EVEN if biologically related on the Non-First Nations side of things UNLESS and only if both parents consent to the adoption. The reality is that according to Canadian law the adoption of your daughter is probably illegal (not to be reversed, but would not have been approved according to Canadian law to begin with). In the case of theFirst Nations parent not consenting, the child's band (to which they belong to automatically) are given total veto over any adoptions. Saying all that, I am unaware of a Canadian case of a finalized adoption EVER being reversed. Canadian courts tend to strongly side with the "best interest" of the child. The adoption would not have been approved according to Canadian law, but once it is complete, I think it is impossible for a Canadian court to consider a finalized adoption in another jurisdiction. Saying all that - :) (as I am the white mother of two First Nations daughters, two black American sons, two white Canadian sons) the cultural connections and aspects of your daughter's life would be very, very important to her biological paternal family as well as her own personal history as she grows up. If they are willing to have a respectful relationship with you, I hope you would consider it. Please feel free to PM me if you want more information :)Jen
Oh, and unless the circumstances are extreme - grandparents are NOT automatically given rights in Canada. In this case, unless it was the father suing on some grounds - I cannot imagine the Canadian courts even hearing the case. Did you advertise properly in your jurisdiction for the father? Were reasonable attempts made to get his consent to the adoption? Do you feel that you did anything illegal to get the adoption finalized without contacting him or his consent? In your case, I would be more concerned of the American laws in your state. As the child is NOT Canadian by birth, I do not think any Canadian laws apply. Although, based from a moral standpoint, if he was not properly informed of his child's birth and given the opportunity to consent to the adoption - he may have grounds to dispute the adoption. Although, this is an extremely lengthy and costly procedure in the USA and doubtful that he would proceed.
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Prior to the adoption, the child would have had the RIGHT to apply for Canadian citizenship which would have been granted automatically - but it's not given without application. And post adoption, I am not sure how that works for a child born out of country and no longer considered the legal child of the Canadian parent. I have a feeling it would an extremely complicated process and not clear cut.
For example, my husband is American and our biological boys have the RIGHT to American citizenship but are not Americans because we have not applied for them to be Americans. They are legally solely Canadians because they are born in Canada. We could apply for their citizenship as foreign born Americans ... but won't. In this case, I am pretty sure the child is NOT considered Canadian as the child was not registered as a Canadian prior to adoption and now is no longer the legal child of any Canadian citizen plus was born in the USA.
I am not an expert on Canadian law or the laws of the First Nations/Native Americans. However, let me mention a few problems that you may face, and recommend that you retain a good adoption attorney.
First off, it is ILLEGAL under U.S. law to bring a pregnant woman to the United States for the purpose of placing her child for adoption here. The law was initially passed to prevent the exploitation of foreign born women.
There have been many cases where a woman who planned to place her baby when she was pregnant, didn't want to do so after she gave birth. If that woman was brought to the U.S., given lodging, given medical care, etc., she might feel -- or be made to feel by the adoptive parents or their agency -- that she "had to" place the baby anyway. And, in fact, some crooked facilitators used to abandon women in the U.S., without money, passport, etc., if they chose not to relinquish. The poor women, afraid to call the police and not speaking much English, wound up relinquishing just so they could get home. U.S. law is based on the premise that a woman is not a "birthmother" until she has delivered and has had time to make a rational decision about placement, without any form of coercion.
Now, I know that you did not plan to treat your relative in this way, but the law still applies. Technically, you broke the law by bringing your relative to the U.S. for purpose of giving birth and relinquishing the child for adoption. The only reason you were able to do so was that border crossings by Canadians are very common; no visa is required, and the border patrols are looking for drug runners, terrorists, and so on, not pregnant women. You would have had a much different situation if you had tried to bring a Russian woman to the U.S. to deliver and place her baby with you.
In fact, your relative should have stayed in Canada to have her baby or, if there was a compelling reason for her to get medical care in the U.S., gone home to Canada afterwards. And if she had done so, it would have been clear that, under both Canadian and U.S. laws, any placement of her baby with an American family would have been considered international, and would have had to occur under not only the laws of Canada and the U.S., but also under Hague Convention rules.
The Hague Convention laws were put in place to protect children, their birthparents, and their adoptive parents. They are good rules, but they do make adoption take a bit longer and make adoptive parents jump through some extra hoops. Relative adoptions are permitted, and their rules are somewhat simplified, but still, they MUST occur under the Hague treaty, as ratified by both Canada and the U.S. And Hague principles do address the importance of keeping a child in his/her own country, where possible.
And now, there is a possible Native American/First Nation connection, on top of all of these irregularities. Since you have a lot of ties to Native Americans/First Nation people, I find it hard to imagine that you never gave a thought as to whether the birthfather might have First Nation heritage, and whether any First Nation issues might arise.
I guess my real question is, "Where the heck were the social worker and the lawyer?" I am sure that you had to hire professionals to do the adoption of your relative's child. But when I see the sloppy process, with failure to recognize the illegality of bringing a woman to the U.S. to deliver and surrender a child for adoption, with failure to comply with the Hague Convention requirements that are written into law in both Canada and the U.S., and with failure even to consider possible First Nation issues, I am absolutely boggled.
The good news, from your point of view, is that the courts tend to be reluctant to overturn adoptions, unless there is clear evidence of fraud, and I'm sure that you did not intentionally set out to commit fraud. As a result, even if the birthfather and his family complain, they may not be able to get custody of your relative's child.
HOWEVER, I would strongly suggest that you get legal counsel, just to be on the safe side. The fact is that, if the birthfather's family chooses to contest the adoption, there could well grounds for overturning it, given all of the irregularities. Of course, given how costly it could be to get to that point, and given that the birthfather has shown no interest previously in parenting the child, my guess is that the birthfather's family might not make the attempt.
Sharon