Child Custody Cases in Indian Country

1. Child Custody Cases in Indian Country Presented by Professor Eileen Luna-Firebaugh and Deborah Goelman Materials by Southwest Center for Law and Policy and Legal Resource Center on Violence Against Women

2. As an advocate or an attorney, you may encounter these questions from survivors: Can I leave tribal lands with my children to escape abuse?

3. Can I leave the state with my children to escape abuse?

4. Will I be charged with parental kidnapping?

5. What can I do to get this state or tribal court to issue a custody order in an emergency?

6. What can I do to get this state or tribal court to transfer the custody case to another forum for my safety?

7. Scenario Angela Jones lives in Lawrence, Kansas. She has resided in Kansas for the duration of her five-year marriage to James, a successful restaurant owner, and has two boys – Simon, age 4, and Jeremy, age 2. James has abused Angela for years, but she was afraid to seek help because of his threats to kill her if she called the police. Recently, after James choked her in front of Simon, Angela took the children and fled to a local domestic violence shelter, leaving her job. She does not like living in the shelter, and she only can stay there for seven more days. She wants to take the children and go live with her aunt and sister on tribal lands. Angela is an enrolled member of the Tohono O’odham Nation. She visits her family with the children every All Soul’s Day and for a month during the Church Feast. James, who is non-Indian, does not come on these visits and has discouraged Angela from visiting, stating that he doesn’t want Simon and Jeremy to “pick up bad habits from their cousins.”

8. James has told Angela that if she ever leaves him, he will “make her pay.” He also has threatened that she will never see the children again if she tries to leave. What legal issues might arise regarding her desire to relocate? What non-legal issues (e.g., safety and economic) should you be prepared to discuss with her?

9. Legal Issues in Relocation

10. Legal Issues in Relocation • Are the children or parents enrolled members of the tribe or eligible for enrollment? • Does the tribal court have jurisdiction over the custody matter? • Has a custody order been entered? • Can she leave without violating the order? • Parental kidnapping or custodial interference law? • Domestic violence exemption? • Domestic violence defense? • Child protection defense? • Relocation law? • Protection order law? • Personal jurisdiction? • UCCJA/UCCJEA? • Custody law? • Likelihood that she’d be brought back into litigation in Kansas?

11. Non-Legal Issues in Relocation

12. Non-Legal Issues in Relocation • Will she be safer if she leaves? • Economic opportunities? • Shelter? • Police response? • Childcare? • Family support? • Legal assistance? • Would a protection order be effective? • How do the two jurisdictions handle inter-jurisdictional custody cases? • How do they enforce protection orders?

13. Overview of Jurisdictional Statutes: Federal Laws • VAWA FFC: the full faith and credit provisions of the Violence Against Women Act (18 U.S.C. §§ 2265, 2266) • VAWA 2005: the Violence Against Women Act of 2005 (P.L. 109-162, amended the original VAWA and the VAWA 2000) • PKPA: the federal Parental Kidnapping Prevention Act (28 U.S.C. § 1738A) • ICWA: the Indian Child Welfare Act (25 U.S.C. § 1901 et. seq.)

14. Indian Child Welfare Act (1978) Purpose: To protect Indian children and to promote the stability and security of Indian tribes and families by establishing minimum federal standards for the removal of Indian children from their families and their placement in foster or adoptive homes.

15. ICWA • Grants Indian tribes exclusive jurisdiction in specifically defined “child custody proceedings” • These include foster care placement, termination of parental rights, pre-adoptive placement and post-adoptive placement proceedings involving Indian children • Definition does not include domestic violence orders of protection or dissolution proceedings • Does not apply in cases between biological parents • May apply if a protection order is issued in a state intervention case

16. Overview of Jurisdictional Statutes: Tribal Laws Types of jurisdiction: personal, subject matter, territorial What laws may be relevant to the authority to hear domestic violence and custody cases? • Tribal child custody jurisdiction laws • Tribal full faith and credit statutes • Tribal protection order statutes

17. Overview of Jurisdictional Statutes: Tribal Laws Tribal court judges should consider:* • Extent of jurisdiction provided by tribal law • Tribal membership status of the parties and children • Place of residence of the parties and children • Prior proceedings or orders in state or other tribal courts • Property on the reservation • Other off-reservation contacts the parties may have had • Applicability of Public Law 280 • Local treaties, agreements, or statutes • Existence of state-tribe or tribe-tribe reciprocal enforcement agreements • Tribal customs and tradition *Adapted from Tribal Court Bench Book, App. B, by Judge Mary T. Wynne

18. Overview of Jurisdictional Statutes: State Laws • UCCJA: the Uniform Child Custody Jurisdiction Act • UCCJEA: the Uniform Child Custody Jurisdiction and Enforcement Act • State full faith and credit statutes • State protection order statutes State relocation and parental kidnapping laws also may be relevant to custody cases involving domestic violence, although they are not jurisdictional laws.

19. Why is custody of Indian children so important? • Historical context: boarding schools, etc. • Indian Child Welfare Act

20. Tribal Court Jurisdiction in Custody Cases • Civil jurisdiction in Indian Country is extremely complex. • There are several analyses that must be made in all civil cases before the tribal court may exercise jurisdiction. • On the most basic level, tribal courts must possess both subject matter and personal jurisdiction in every civil case.

21. Subject Matter & Personal Jurisdiction • Subject matter jurisdiction refers to the court’s power to hear the general subject matter that is at the heart of the litigation. • Personal jurisdiction refers to the court’s power over the defendant(s) involved in the litigation.

22. Personal Jurisdiction • Generally, the defendant in a civil action must have minimum contacts with the tribe or must consentto the jurisdiction of the tribal court in order for personal jurisdiction to be exercised. • Minimum contacts =working for the tribe, living on rez., being an enrolled tribal member, etc. • Consent = defendant agrees to have matter heard in tribal court or files an answer to a pleading or voluntarily appears in tribal court.

23. Subject Matter Jurisdiction • Generally, a tribe can only exercise subject matter jurisdiction over disputes that arise in Indian Country. • The United States Supreme Court has ruled that tribes have exclusive jurisdiction over any civil case involving an Indian defendant when the underlying claim arose in Indian Country. • This includes civil actions brought by non-Indian plaintiffs against Indian defendants. • However, it is unclear whether the exclusive civil jurisdiction of tribal courts also extends to Indian defendants who are citizens/members of other tribes.

24. Montana v. United States • The primary United States Supreme Court case directly addressing tribal court civil jurisdiction over non-citizens/members and over non-Indian defendants. • Montana v. United States held that tribal courts have no civil regulatory authority over non-Indian defendants on fee land owned by non-Indians that is located within a reservation unless one of 2 factors apply:

25. Montana 2 part test cont’d • the parties had entered into a consensual relationship with the tribe or its members through commercial dealing, contracts, leases or “other arrangements” or • the conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.

26. Montana cont’d • Therefore, if neither of the two Montana factors apply, tribal courts may not exercise civil jurisdiction over non-members (incl. non-Indians) on fee lands • Remember: Argue dv and child custody “threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” • Remember: Living or working on rez, entering into a marriage, etc. can equal consensual relationship

27. Tribal Codes • Nearly every tribal court has a “best interest of the child” test as the primary factor in custody determinations. • Because most tribal codes provide that a court must follow custom and tradition (and most codes permit expert testimony as to what constitutes custom and tradition), you can argue that: • domestic violence and child abuse are not Native traditions. • If it’s a matrilineal tribe, argue custody for mother.

28. Scenario: • After discussing the options with an attorney in Kansas, Angela returned to live with her sister and aunt in her village on the Tohono O’odham Nation reservation on July 1st. She asked the tribal court for a protection order and received one, including temporary custody, on July 14th. Although James had notice and an opportunity to be heard, he did not appear. • James sent Angela airplane tickets and asked her to let Simon and Jeremy come back to Kansas for a visit at the end of July. His extended family was in town for a long-planned family reunion, and he said he missed the boys.

29. Scenario: • James picked up the children at her village on the reservation, but did not return them, as agreed, at the end of the weekend. • James then filed for custody in the Lawrence Superior Court. In his pleadings, he stated that Angela had kidnapped the children and deprived him of all contact with his sons. Although Angela was served with the complaint, she was afraid to go back to Kansas and did not have any money to do so. The Kansas court issued a default custody order giving James sole custody.

30. UCCJA: • Drafted in 1968; enacted by all 50 states over next decade and a half • Designed to eliminate conflicting custody orders and to deter parental abduction • No account taken of domestic violence or tribal issues (though a few jurisdictions made changes to protect survivors) • Failed to reduce parental abduction and forum-shopping

31. UCCJEA: • Developed in 1997 • Designed to replace the UCCJA • Intended to reconcile differences between the UCCJA and PKPA • So far 46 states, D.C., and the U.S. Virgin Islands have enacted it; currently being considered by others • Significant improvement for battered women

32. Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware District of Columbia Florida Georgia Hawaii Idaho Illinois Indiana Iowa North Dakota Ohio Oklahoma Oregon Pennsylvania Rhode Island South Carolina South Dakota Tennessee Texas U.S. Virgin Islands Utah Virginia Washington West Virginia Wisconsin Wyoming UCCJEA Adoption Kansas Kentucky Louisiana Maine Maryland Michigan Minnesota Mississippi Montana Nebraska Nevada New Jersey New Mexico New York North Carolina

33. When may a court hear a custody case? UCCJEA Jurisdictional bases: • “Home state” trumps other bases (except emergency) • Significant connection • “More appropriate forum” jurisdiction • “No other state” jurisdiction

34. UCCJEA Crucial provisions when domestic violence is involved: • Emergency jurisdiction • Inconvenient forum • Judicial communication

35. Emergency jurisdiction . . .

36. UCCJEA: Temporary emergency jurisdiction: • Where “necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.” • Child must be present in the jurisdiction This means that a court can exercise emergency jurisdiction in domestic violence cases where the mother (but not the child) has been abused

37. UCCJEA: Filing for temporary emergency jurisdiction: • Procedures vary; UCCJEA does not specify procedure and forms • May be able to file for temporary emergency order under protection order statute • Submit evidence establishing the emergency: evidence of abuse of parent and/or child

38. Inconvenient forum . . .

39. UCCJEA: Inconvenient Forum: Factors explicitly include: • Whether domestic violence has occurred and is likely to continue and which jurisdiction could best protect the parties and the child • The length of time the child has resided outside of the jurisdiction • The distance between the two courts • The relative finances of the parties

40. UCCJEA: Inconvenient Forum: Factors explicitly include: • The agreement of the parties • The nature and location of the evidence including the child’s testimony • The ability of each court to decide the issue expeditiously and the procedures necessary to present the evidence • The familiarity of each court with the facts and issues in the pending litigation

41. Judicial communication . . .

42. UCCJEA: Judicial communication is crucial: • Provides judges with the evidence necessary to make the right decision • Uses mechanisms to transmit evidence, etc. without survivor having to travel • Ensures that the court receives full information about the case, rather than merely information from the perpetrator

43. UCCJEA: Judicial Communication: Required between courts when one court exercises emergency jurisdiction. The court with initial or modification jurisdiction must communicate with the court exercising emergency jurisdiction to: • Resolve the emergency • Protect the safety of the child and parties • Determine the duration of the temporary order

44. UCCJEA: Judicial Communication: Required when a court determines that a custody proceeding has been commenced in another state or tribal court with jurisdiction in substantial conformity with the UCCJEA. Note that these UCCJEA requirements for judicial communication are new, so courts may not be familiar with them.

45. UCCJEA: • The court may allow the parties to participate in the communication • If the parties are not able to participate, they must have an opportunity to present facts and legal arguments before a decision on jurisdiction is made • A record of a communication must be made, and the parties must be informed promptly of the communication and given access to the record • Communication between courts on schedules, calendars, court records, and similar matters may occur without informing the parties and no record of the communication is necessary

46. Continuing jurisdiction . . .

47. “Continuing jurisdiction” can pose a problem for survivors who leave a state or tribal lands for their safety, as the original decree court retains continuing jurisdiction over the custody case if the batterer remains there.

48. UCCJEA Continuing jurisdiction: • The UCCJEA’s provisions on continuing, exclusive jurisdiction are new: the UCCJA did not address continuing jurisdiction • Jurisdiction attaches at the commencement of a proceeding • A court with continuing jurisdiction may decline to exercise it under inconvenient forum

49. UCCJEA Continuing exclusive jurisdiction: There are two ways to determine if the court in the original jurisdiction retains jurisdiction: • The original decree court may determine that no one has a significant connection with the jurisdiction and that there is no longer substantial evidence there; or • Any court may determine that the child, the parents, and any person acting as a parent do not presently reside in the original decree jurisdiction

50. National Organizations Legal Resource Center on Violence Against Women (301) 270-1550 lrc@lrcvaw.orgwww.lrcvaw.org Southwest Center for Law and Policy(520) 623-8192info@swclap.orgwww.swclap.org