Regulations could undermine traditions

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PRO BONO

Dear Tuma:

In your last column, you wrote about custom adoptions. What is a custom adoption and how is it done?

Looking To Adopt

Dear Looking:

A custom adoption is an adoption of a child. It is usually done in the traditional manner, following the traditional law, rules or guidelines of the tribe or band. It is seen as an informal adoption or conditional adoption done outside of the court process or the provincial laws. Indian Affairs will recognize custom adoptions but the courts usually require at least four factors before recognizing a customary adoption. There must be evidence of the practice existing and going back in time; the custom must be reasonable; it has to be certain in its nature, the locality and the persons affected (meaning that it is an adoption and not a temporary placement of the child) and the custom has continued without interruption.

My tribe, the L'nu, have a concept of traditional adoption, referred to as Ankweyaq (I take care of). It is also reflected in the term that is used after the child has grown up-Kisikwenikn (I have raised the child). You can find similar concepts in your tribe or community.

There are a variety of ways as to how it can be done. It could be that a mother takes the child to a trusted family to be raised by them or that the grandmother takes over the raising of the child. The child may or may not have continued contact with the natural parent.

The crucial item is that there is an intention that someone will raise the child other than the natural parent. Finally, the community acknowledges and recognizes that the child has been or is being raised by the adoptive parents.

In the past, customary adoptions were fairly easy to arrange, but given the changes in law and regulations, it is becoming more difficult. Simple, every day arrangements such as school permission slips now require having some sort of a written, legal arrangement in place before the customary adoptive parent can sign. The problem now is how can we continue to recognize and celebrate customary adoptions without resorting to outside rules and regulations, which may cause further diminishing of traditional laws.

Here is an example: A child that has been raised by a grandmother brings home a permission slip for a field trip. The grandmother signs giving permission but since there is no legal agreement in place to show she is the legal parent, her signature may not be legally binding. The school may require the legal parent to sign because of liability issues. By insisting on a written, non-customary or non-traditional arrangement, the reserve school may be actually working to undermine the traditional practice. There are no easy answers to this dilemma.

Dear Tuma:

I just left my wife and kids. We could not get along and fought all the time. She told me that I had to leave the house and that I will not see the kids. I told her that she would not get a dime in child support if she does that. What should I do? I want to see the kids but she won't let me.

Heartbroken Dad

Dear Heartbroken:

There are a number of things you can do. You can ask for help in resolving your issues.

A trusted counsellor, Elder or social worker can help you make your own arrangements for the children and for your marriage. This arrangement may include clauses on custody, access, support, medical, educational. You can then file this agreement with the court as part of a separation agreement.

If you are unable to agree, you should see a lawyer and file an application in court to resolve immediate issues such as custody, access, and support.

The other issues can wait until you decide on the next step (either reconcile or proceed to a divorce). The court will look at the "best interests of the children" in making any of its decisions regarding child support, custody and access.

Family law can be a very emotional area of law. Your wife and you can fight every step of the way but each timyou dig in your heels, it makes it more difficult for everyone involved. Plus, it can become quite expensive.

This column is not intended to provide legal advice but rather highlight situations where you should consult with a lawyer. Tuma Young is currently studying for a PhD in law at the University of British Columbia. Questions can be sent to him via e-mail at puoin@telus.net.