The US Supreme Court took up an emotionally wrenching case in which a couple was ordered to turn over the two-year-old girl they had raised since birth to her biological father because he is a Native American.
This is the first time in 14 years and the second time ever that the nation's top court is ruling on the Indian Child Welfare Act of 1978, which was intended to prevent Native American children from being separated from their families. A decision is expected in late June before the court ends it session.
Matt and Melanie Capobianco are appealing a 2011 family court decision that annulled their adoption and transferred custody to Dusten Brown after DNA tests proved his paternity.
That decision was upheld in July, when the South Carolina Supreme Court ruled with a "heavy heart" in favor of the biological father, a decision the dissenting justices described as a "human tragedy."
Brown had renounced his parental rights during the pregnancy, but changed his mind after the adoption. The South Carolina Supreme Court ruled that the Indian Child Welfare Act superseded state law that had approved the adoption.
But the adoptive parents, who are supported by the biological mother, protested in their appeal to the US Supreme Court that the ICWA does not apply in 11 other US states where Native American tribes are located, and the judgement would have been different if the adoption took place elsewhere.
The couple's lawyer Lisa Blatt called the situation "absurd" and "Kafkaesque" in arguments Tuesday before the US Supreme Court.
If the nine-judge court upholds the South Carolina decision in favor of the biological father, Blatt argued, it will in essence ban cross-racial adoption of Native American children.
Blatt said the court would be "relegating adopted parents to the back of the bus. And you're basically relegating the child to a piece of property with a sign that says, 'Indian, keep off. Do not disturb.'"
But the biological father got a boost from odd judicial couple formed by conservative judge Antonin Scalia and liberal colleague Sonia Sotomayor.
"He's the father," said Scalia, who has nine children.
"If the father's fit, why do you think that the federal statute requires that it be given to a stranger rather than to the biological father?", said Sotomayor, who has no children.
The Capobiancos had made seven unsuccessful in vitro fertilization attempts before the adoption.
They also financed part of the medical costs for the child's birth mother, met the woman, who was not Native American, attended the September 2009 birth and returned to South Carolina with the girl when she was just eight days old.
Chief Justice John Roberts, who has two adopted children himself, seemed to lean in favor of the adoptive parents.
When Brown's lawyer Charles Rothfeld said his client was excited upon learning he was going to be a father, Roberts said: "He was excited, but there is no doubt he paid nothing during the pregnancy and nothing at the time of the birth, right? To support the child or the mother?
The judge added: "He was excited by it. He just didn't want to take any responsibility."
Now three years old, the child lives with Brown in Oklahoma. Brown, supported by the Cherokee Nation, asserts that "he is a parent under the ICWA," which is "tied to the US' obligations to Indians."
"Domestic relations pose the hardest problems for judges, said Justice Anthony Kennedy, who often provides the swing vote in the bench divided among conservatives and liberals.