Custom Adoption: A Solution to the Overrepresentation of Indigenous Children in Foster Care?

Background and Purpose: In Canada, Aboriginal children comprise 5% of the child population but 47% of children in foster care. In the U.S., Native American children are represented among children in care at 1.6 times the expected level. In response, some provinces and states now recognize the traditional practice of custom adoption. Custom adoption is a consensual process by which an Indigenous parent entrusts their child to a person they wish to assume parental responsibilities on a temporary or indefinite basis. Custom adoption remains an under-studied and applied area of adoption practice. This study, funded by British Columbia’s statutory child welfare authority, thus sought to identify mechanisms of financing, supervision, and tracking involved in custom adoptions.

Methods: An exploratory design was deemed appropriate.  First, a narrative systematic review of literature was conducted on custom adoption in Nunavut and the Northwest Territories (NWT). Included in this review were 112 sources, including peer-reviewed journals, grey literature, government- reports, court documents, policy briefs, and legislative documents. We used framework analysis (McEvoy et al., 2014) to categorize information within collected materials. Second, we conducted a jurisdictional scan of grey literature and policy documents from the following jurisdictions: Nunavut; NWT; Nunavik, Ontario; Australia; and the U.S. State of California. Finally, we conducted, audiorecorded, and transcribed semi-structured qualitative interviews with policy experts and child welfare administrators (n=9) from Nunavut, NWT, Ontario, and California. Interviews sought information about statutory involvement in custom adoptions by jurisdiction. Interpretive description was the analytic strategy used to analyze qualitative interviews.

Findings: Findings revealed wide variation in custom adoption practice across jurisdictions. In Nunavut and NWT, custom adoption is an autonomous cultural practice with no assessment of family appropriateness, no financial assistance beyond tax credits for dependents, no tracking, and no particular relationship to the termination of parental rights.  In Ontario, formal customary care is recognized as a culturally appropriate placement option for Indian or Native children in need of protection. The child’s placement must be supervised by a Children’s Aid Society, and child in care standards, licensing standards, and recording requirements apply. In California, child welfare workers are required to consult with the child’s tribe about the possibility of Tribal Custom Adoption as a permanency option in every case involving an Indian child. The child is eligible for Adoption Assistance Program benefits and funding, and the public agency that has placement and care responsibility of the Indian child is responsible for ensuring the supervision of the adoptive placement. California’s Department of Social Services tracks Tribal Custom Adoptions.

Conclusion and Implications: While we found wide variation in statutory involvement by jurisdiction, all experts emphasized: 1) custom adoption’s effectiveness in promoting permanency; and 2) the autonomy of the sovereign nation in determining how custom adoption should be recognized, funded, tracked, or supervised. Custom adoption is therefore a potentially promising permanency practice that must emerge from a collaborative judicial process between government and sovereign First Nations.