Custom Adoption Fact Sheet
Introduction
Custom adoption is an open process that has been recognised
in British Columbia's Adoption Act. The Ministry of Children and
Family Development (MCFD) supports the desire of First Nations and Aboriginal
Communities to ensure Aboriginal children in care are raised with Aboriginal
families whenever possible keeping them connected with their extended
family and community.
Custom adoption provides greater choice when considering
permanency options for Aboriginal children in continuing care. It enables
Aboriginal families, organizations and communities to use a culturally
appropriate way of sharing in the permanency planning for Aboriginal children.
What is custom adoption?
- Custom adoption is a term that is recognised as meaning
the cultural practices of Aboriginal peoples to raise a child, by a
person who is not the child's parent, according to the custom of the
First Nations and/or Aboriginal community of the child.
- Custom adoption is an extension of custom care (which
provides temporary or alternate care for Aboriginal children whose parents
are not able to care for them) and ensures Aboriginal children maintain
their cultural, linguistic and spiritual identity.
Custom adoption facts:
- Custom adoption is an open process that involves many
people in a child's life, including birth parents, extended family,
the Aboriginal community and those with a significant relationship to
the child.
- Custom adoption has the same effect of an adoption
order under the Adoption Act when the court makes this declaration
pursuant to an application under section 46 of the Adoption Act.
- Custom adoption is a permanency option that can be
explored with birth parents voluntarily planning adoption under the
Adoption Act.
- Custom adoption of a child in continuing custody proceeds
when custody of the child is transferred to prospective adoptive parents,
under section 54.1 of the Child, Family and Community Service Act
(CFCSA), if eligibility criteria are met.
- Financial assistance may be available to eligible
families who have had custody of a child transferred to them under section
54.1 of the CFCSA.
- An adoption order under the Adoption Act, or
the recognition of a custom adoption by a court does not affect any
rights a child may have as an Aboriginal person.
- The court has identified criteria that must be met
before it will declare that a custom adoption has occurred.
- Prospective adoptive parents of a child placed for
adoption by birth parents, or guardians of a child whose custody is
transferred from the director under section 54.1 CFCSA, work
directly with the Band, First Nations or Aboriginal communities to meet
the requirements of the court.
Legal advice/assistance:
It is suggested prospective adoptive
parents and person(s) with custody of a child(ren) retain a lawyer to
help them in their application to have a custom adoption recognized. It
is the responsibility of the court to provide guidance about what criteria
is required by the court to person(s) making application to the court
to have a custom adoption recognized under section 46 of the Adoption
Act.
What criteria does the court require?
The court has identified factors to consider when it
is being asked to declare, under section 46 of the Adoption Act,
that a custom adoption has occurred. Based on what the court has identified
the "Practice Standards and Guidelines for Adoption" lists possible
criteria that could be expected by the court.
Possible criteria include:
- consent of the birth and adopting parent(s);
- child has been voluntarily placed with the adopting
parent(s);
- adopting parent(s) are indeed native or entitled to
rely on native custom;
- rationale for native custom adoptions is present;
and,
- the relationship created by custom must be understood
to create fundamentally the same relationship as that resulting from
an adoption order under Part 3 of the Adoption Act.
How does the court determine the cultural practices
of a First Nation or Aboriginal community?
First Nations and Aboriginal communities outline their
own cultural practice of Aboriginal peoples raising a child by a person
who is not the child's parent.
Status under the Indian Act, trust funds and
inheritance:
If there are questions or concerns about a person's status
under the Indian Act, trust funds and/or inheritance, contact:
Indian and Northern Affairs
British Columbia Region
1138 Melville Street
PO Box: Suite 600
Vancouver, British Columbia
V6E 4S3
http://www.ainc-inac.gc.ca/index.html
For further information about custom adoption of a
child in continuing care, contact:
The Deputy Director of Adoption in your region ~ call Inquiry BC @ 1-800-663-7867 for
regional contact information.
Although ministry-arranged adoption, transfer of custody
and custom adoption (when recognised by the court under section 46 of
the Adoption Act) look very similar in many respects, they are
separate legal processes that have significant differences.
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