Custody Disputes Over Native American Children

The Indian Child Welfare Act (ICWA) is a federal law designed to protect American Indian and Alaska Native families and tribes. ICWA was passed in 1978 in response to alarmingly high rates of Indian children being removed from homes and placed in non-Indian foster homes. With ICWA, Congress declared a strong policy of preserving the stability and security of Indian tribes by protecting Indian children from removal and, if removal is necessary, placing the child in a home that reflects their tribal cultures and values.

1. ICWA applies when there is a child custody proceeding involving an Indian child

ICWA applies to any child custody proceeding involving an Indian child, including guardianships, foster care placements, juvenile dependency proceedings, termination of parental rights, and adoption placements, both voluntary and involuntary. ICWA does NOT apply to a child custody dispute between two parents, such as in a divorce proceeding, or to juvenile delinquency proceedings.

For the purposes of ICWA, an Indian child is a child who is either a member or eligible for membership in a federally recognized tribe and is the biological child of a member. A child may identify as Indian without being an “Indian child” under ICWA’s legal definition; for example, a child may identify as Indian but not be eligible for membership in the tribe or may be a member of a tribe that is not federally recognized.

2. ICWA provides the opportunity for tribes to be involved in making decisions about services or placement of an Indian child

ICWA requires notification of the child’s parents and tribe in a child custody proceeding involving an Indian child. The tribe can intervene in a proceeding and can petition to have jurisdiction transferred to tribal court. This ensures tribes have notice of custody situations involving their Indian children and can oversee placement, make specific requests, or take jurisdiction of the case if necessary.

ICWA also requires states to make “active efforts” to provide services to Indian families to prevent removal of an Indian child from his or her parent or Indian custodian and to make efforts towards reunification if removal is necessary. Active efforts includes notification of the child’s tribe as early as possible in the case and active assistance to an Indian family to make the changes necessary for reunification.

3. ICWA applies specific standards that must be met before an Indian child can be placed with someone other than a parent

Placement standards under ICWA are, as a general rule, more protective of the child’s family placement in order to best ensure Indian children are not removed from their cultural heritage. For example, for a guardianship case, it must be shown by clear and convincing evidence supported by expert testimony that the child’s placement with their Indian family is likely to result in serious emotional or physical damage to the child. The “clear and convincing” standard is a higher standard than most child custody proceeding require and is intended to provide a high level of protection for Indian families.

ICWA provides protection for Indian children, their families, and their tribes by ensuring Indian children are not placed out of reach of their culture and heritage. However, ICWA’s provisions can be complicated and the standards can be difficult to meet. If you think ICWA might apply in your case, you should seek out sound legal advice about your rights and responsibilities.

**Please note that this blog pertains to existing California law and is meant for informational purposes only. Please do not make decisions that will affect your future based on things you’ve read on our website. Instead, consult with a Certified Family Law Specialist – It doesn’t have to be us, but be sure to seek out sound legal advice that pertains specifically to the facts of your case.

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