Custody When Parents Are Native American | ICWA & Custody

When a custody case involves parents or children who are members of a tribe or nation, a tribal court may hear the case.

There are 400 tribal courts in the United States. These courts uphold the laws of the tribes and nations they represent. There are also state and federal laws to ensure Native children stay connected to their cultures and homes.

Who has jurisdiction?

Jurisdiction gives a court the authority to make a decision in your case.

Under the Uniform Child Custody Jurisdiction and Enforcement Act, jurisdiction for custody cases depends on the child's "home state." The home state is generally where the child has lived for the past six months, or since birth if they're less than six months old.

In states that have adopted Section 104 of the UCCJEA, tribes and nations are considered states. Therefore, orders and court proceedings in tribal court are treated the same as those in states.

Generally, the tribal court can have jurisdiction over a custody case if the child or a parent is a member of that tribe or nation, even if they don't live in Indian country.

It's also possible for state and tribal courts to have concurrent jurisdiction, meaning they both have the authority to hear the case.

Jurisdictional issues are complex. If you expect to have arguments over jurisdiction, consult with an attorney who has experience litigating tribal family law cases. You might also find help at your local state or tribal court or a legal aid office.

Custody when one parent is Native American

When one parent is Native American, your case could be heard in tribal court.

Native parents who are members of a tribe or nation may file for custody with the tribal court of the tribe or nation they belong to. Even a parent who is a nonmember can file with tribal court if their child is a member.

If the other parent has already filed a case in state court, the Native parent can request a change in jurisdiction to the tribal court. The transfer happens only if the tribal court agrees to accept the case.

Every tribal court has its own laws, rules and procedures. Your tribe or nation might publish theirs online. The court may follow some of the same laws as the state court. For example, the Cayuga Nation Family Court follows the same child support guidelines as New York State.

Custody when both parents are Native American

Parents may choose to go to tribal court or state court.

Generally, the court where the case is filed first has jurisdiction. For example, if parents belong to different nations, the nation's court where the case was filed has jurisdiction. Native parents may request a change in jurisdiction from tribal court to state court or vice versa.

Filing for custody in tribal court

Like any other court, tribal courts have their own forms which you can get from the court or, sometimes, online.

You'll fill out the forms that apply to your case, which is most likely a divorce, paternity or standalone custody case, then take the forms to the court where the clerk will file them. You may need to provide supplemental forms like a parenting plan and financial statement. You'll pay a filing fee unless you request and are approved for a fee waiver.

The other parent must receive notice of the case through a process called service.

The Indian Child Welfare Act (ICWA)

The Indian Child Welfare Act is a federal law meant to prevent the wrongful removal of Native children from their families and communities.

ICWA was enacted in 1978 in response to a long history of forcible removal of Native children from their homes and communities. Many were placed with non-Native families or even sent to boarding schools.

ICWA applies to any child who is under 18 and a member of a tribe or nation or has a parent who is a member of a tribe or nation the child is eligible to join. The law only applies in cases where parents will lose custody, such as foster care placement, adoptive placement and termination of parental rights cases.

Key aspects of the law include:

• The state must immediately notify the tribal court after the case starts so that the tribal court may assume jurisdiction or suggest whom the child should be placed with.
• The state must consider placing the child with their extended family before considering placement with others.
• The state must involve an expert witness with knowledge of the child's culture to weigh in on the best custody decision for the child.
• If parents voluntarily give up their parental rights or place their child in foster care, ICWA has provisions to ensure the parents are doing it by choice and not because of pressure from the state.

Under ICWA, the state has jurisdiction over the case if the child does not live in Indian country and is not a ward of the tribal court. Otherwise, the tribal court has jurisdiction. A child is a "ward of the tribal court" when they are "housed by or provided protections and necessities from the tribe." In some cases, the tribal and state courts have jurisdiction.

Some states have enshrined ICWA into their state law to ensure protections for Native children and their families. These states are California, Colorado, Iowa, Michigan, Minnesota, Nebraska, New Mexico (which also has its own Indian Family Protection Act), North Dakota, Oklahoma, Oregon and Washington.

Does ICWA apply to custody cases?

Yes, if custody will go to someone other than the child's parents.

It does not apply to cases in which one or both of the child's parents will get custody of the child, like divorce.

Native American fathers rights

Native American fathers have the same rights as other fathers. Most states do not allow gender discrimination in custody cases — although some judges may have personal biases.

If you're concerned your rights as a father are undermined, look into hiring a father's rights attorney or go to your local legal aid office, where free legal help is available to those who qualify.

Native American grandparents rights

Typically, grandparents can have visitation rights so long as it won't hurt the parent-child relationship. Either the child's parents can voluntarily give them visitation or they can go to court to prove regular visitation is in the child's best interests.

If parents lose custody, grandparents could be favored to get custody as extended family members under ICWA.

Staying organized during a custody case

The process of deciding custody requires serious organization, especially when there are questions about jurisdiction. You may need to create a parenting plan, draft multiple custody and visitation schedules, track your time with your child, calculate expenses and beyond.

The Custody X Change app enables you to do all of that in one place.

You can customize this to fit your situation with Custody X Change.

You can customize this to fit your situation with Custody X Change.

With a parenting plan template, customizable custody calendars, an expense tracker and more, Custody X Change makes sure you're prepared for whatever arises in your journey to child custody.

Take advantage of our technology to stay on top of all the moving parts of your case.