Claremore Daily Progress

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September 3, 2013

OK Supreme Court issues stay in custody case

OKLAHOMA CITY —

 

The Oklahoma Supreme Court has granted an emergency stay to keep a 3-year-old Cherokee girl with her biological father and plans to hear arguments from his lawyers and those of the girl’s adoptive parents later Tuesday.

The court granted the stay Friday, although it only became public on the court’s website Tuesday.

Three-year-old Veronica’s birth mother was pregnant when she put the girl up for adoption. A South Carolina couple, Matt and Melanie Capobianco, have been trying to adopt Veronica since she was born, while her biological father, Dusten Brown, has been fighting them for custody.

The Capobiancos filed a motion to vacate the stay, according to online court records Tuesday.

At the heart of Veronica’s case is the Indian Child Welfare Act, established in 1978 in response to high rates of Native American children being adopted by non-Native families. In 2011, a South Carolina family court awarded custody of the girl to Brown, a member of the Cherokee Nation, under the Indian Child Welfare Act. A family court in the same state ruled in July that custody be awarded to the Capobiancos and ordered Brown to hand Veronica over. Brown refused.

South Carolina authorities charged Brown with custodial interference after he failed to show up to a court-ordered meeting.

The case is now with the Oklahoma Supreme Court and both sides are expected at a hearing there Tuesday afternoon. A court referee is expected to recommend whether the full court should rule on which entity has jurisdiction in the case — South Carolina, Oklahoma or the Cherokee Nation. Brown’s lawyers argue that South Carolina should not have jurisdiction because the girl has always lived in Oklahoma.

The hearings have been closed because it’s an adoption proceeding, and neither side will comment because the court issued a gag order in the case. A call to Brown’s lawyer was not returned Tuesday and a spokeswoman for the Capobiancos said she could not comment because of the gag order.

The U.S. Supreme Court said in June that the provisions of the Indian Child Welfare Act upon which Brown relied on to win custody do not apply, and remanded the case back to South Carolina.

The dispute has raised questions about jurisdictions, tribal sovereignty and the federal law meant to help keep Native American tribes together. Veronica’s birth mother is not Native American.

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