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Aboriginal Custom Adoption

Custom adoption is an open process that is recognized in British Columbia’s Adoption Act. According to the Ministry of Children and Family Development’s web site, the agency 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. This enables Aboriginal families, organizations and communities to use a culturally appropriate way of sharing in the permanency planning for Aboriginal children.

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’s recommended to 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’s 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

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 recognized 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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