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Native American Status and Child Custody

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  • 06-22-2013, 06:08 PM
    STaylor
    Native American Status and Child Custody
    My question involves a child custody case from the State of: Utah
    My son is half native American. I am in the process of finding a lawyer that can help me. But my question is can i make it to where in the custody agreement that the father is not allowed to take my son on native ground? And if not what legal measures can i make to get my son back?
  • 06-22-2013, 06:15 PM
    Dogmatique
    Re: Native American
    What reasons do you have?
  • 06-22-2013, 06:16 PM
    adjusterjack
    Re: Native American
    Yes, you can make it a part of the agreement.

    But if your ex takes the child on to the reservation and stays there it will be like dealing with a foreign country to get the child back.

    The tribes are sovereign nations.
  • 06-22-2013, 06:25 PM
    Disagreeable
    Re: Native American
    As you noted, the child is half native American. I cannot see a court engaging in the violation of him learning his heritage. You would likely get farther with some kind of court ordered bond, like they do for kids involved in foreign travel.
  • 06-23-2013, 10:03 AM
    Mr. Knowitall
    Re: Native American Status and Child Custody
    Quote:

    Quoting STaylor
    View Post
    But my question is can i make it to where in the custody agreement that the father is not allowed to take my son on native ground?

    An agreement is something to which you and your ex- agree. If you and your ex- agree to put a clause in your agreement to that effect, you may do so. Will a court impose such a restriction? It's difficult to imagine a circumstance where that might happen.
    Quote:

    Quoting STaylor
    And if not what legal measures can i make to get my son back?

    If a spouse violates the terms of a child custody order, you can petition the courts to enforce the order. The jurisdictional aspects of the case, should an Indian Court attempt to assert jurisdiction, can be tricky, but at this point all we're talking about is the theoretical - we can't address every possible future scenario.
    Quote:

    Quoting adjusterjack
    View Post
    But if your ex takes the child on to the reservation and stays there it will be like dealing with a foreign country to get the child back.

    That's an overstatement. Although Indian tribes do enjoy some degree of sovereignty, and a number of statutes afford special protections to Indian children and the custody determinations of Indian courts, it is possible to enforce valid custody orders against Indian parents who are violating the orders, even if they're on a reservation. The Indian Child Welfare Act (ICWA), 25 USC 1901, et seq, does not apply to custody determinations resulting from a divorce case unless the child is placed with a third party.

    If dad wants to make the case that his tribal court has jurisdiction over the case, that's an issue he would want to raise up front - not something that's going to void a valid Utah child custody order arising from his divorce case if raised after-the-fact. The Parental Kidnapping Prevention Act (PKPA) extends to Indian reservations and requires extension of full faith and credit to custody orders from other states and territories. Is it conceivable that a conflict could arise, with orders issued by both the state and a tribal court, with a battle between the courts over who has jurisdiction? I can't rule out that possibility - but it's unlikely, and if it's as simple as, "Dad agreed to have the custody case heard by a Utah state trial court as part of his divorce action and didn't make any claim to tribal jurisdiction before the judgment was issued," it's a remote possibility.
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