There are special federal laws that guide the filing for non-parent custody of Indian Children in State courts. The Indian Child Welfare Act (ICWA) serves as a federal law that applies to cases where someone who isn’t a parent wants to get custody of an Indian child. In this context, an Indian child is an unmarried person under 18 who is an Indian tribe member or a biological child of a tribal member.
The Indian Child Welfare Act (ICWA)
The ICWA gives tribal governments a strong voice concerning child custody proceedings that involve Indian children by allocating tribes exclusive jurisdiction over the case when the child resides on or is domiciled on the reservation, or when the child is a ward of the tribe; and concurrent, but presumptive, jurisdiction over non-reservation Native Americans’ foster care placement proceedings.
Filing for Custody of a Native American Child
To file for custody, you must present the following evidence to the child welfare agency:
- Evidence that the current custody can cause emotional or physical damage to the child.
- Show evidence that there has been some form of an effort to supply remedial and rehabilitation programs to the parents, which were unsuccessful.
- Supplying a compulsory notice from the tribe the child belongs to.
Choice of Court
Under the agency, the court has the power to decide which court the custody order is filed. Whether it is in a state or a tribal court depends on where the child lives. However, the tribal courts have the power to decide on cases that involve Indian children. The state court cannot exactly exercise jurisdiction on child custody proceedings.
The state might also transfer the non-parent custody case to a tribal court, but this has to be done through one of the following:
- The child’s custodian (had to be of Indian descent)
- The child’s tribe
- The child (if he or she is over 12 years of age)
- Either of the child’s parent
The state court must transfer the case to the child’s tribe’s jurisdiction unless there is good cause not to do so or if a parent objects to the transfer. The transfer may take place even if the child’s tribe is in a different state. The tribe can also designate the child’s placement in a state that is different from the tribal headquarters or the state where the child resides. You could also file for non-parental custody through a lawyer.
Chad Foster is a trusted family law and divorce lawyer serving Snohomish and King counties with an office in Bothell. Contact us today to discuss your legal issue.