32A-28-7. Indian child custody proceedings; jurisdiction; transfer.
737 words·~3 min read·
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A. An Indian tribe has exclusive jurisdiction over a child custody proceeding involving an Indian child who resides or is domiciled within the reservation of the Indian tribe, except when jurisdiction is otherwise vested in the state by federal law or pursuant to a tribal-state agreement. When an Indian child is under the jurisdiction of the tribal court, the Indian tribe shall retain exclusive jurisdiction, notwithstanding the residence or domicile of the child.
B. In a child custody proceeding involving an Indian child not domiciled or residing within the reservation of the Indian child's tribe, the court and the tribal court have concurrent jurisdiction.
C. At the inception of a child custody proceeding involving an Indian child not domiciled or residing within the reservation of the Indian child's tribe, or upon a motion for transfer at any stage of the proceeding, the department shall, without delay, ask the Indian child's tribe in writing whether the Indian child's tribe will accept jurisdiction over the child custody proceeding.
D. If the Indian child's tribe declines to accept jurisdiction, the court retains jurisdiction. A parent, guardian, Indian custodian or the Indian child's tribe retains the right to move the court to transfer the proceeding to the tribal court at any stage of the proceeding. A transfer motion may be made orally on the record or in writing.
E. If the Indian child's tribe accepts jurisdiction in writing provided to the court, the court shall transfer the child custody proceeding to the tribal court unless:
(1)either parent of the Indian child objects to the transfer; or
(2)good cause exists to deny the transfer.
F. If any party asserts that good cause to deny the transfer exists, the reasons for that belief or assertion shall be placed on the record in a written motion, and the motion shall be served on the parties and the Indian child's tribe. The court shall hold a hearing on the record in which:
(1)all parties and the Indian child's tribe, even if the tribe has not formally intervened in the case, have an opportunity to present facts and legal arguments;
(2)the burden to establish good cause is on the party opposing the transfer; and
(3)good cause shall be established by clear and convincing evidence.
G. For the purpose of transferring a case, a finding of good cause shall not be based on:
(1)the advanced stage of a child custody proceeding if the parent, guardian, Indian custodian or Indian child's tribe did not receive notice of the proceeding until an advanced stage;
(2)the timing of the tribe's intervention;
(3)whether there have been prior proceedings in the court involving the Indian child for which no petition to transfer was filed;
(4)predictions of whether the transfer could result in a change in the placement of the Indian child;
(5)the Indian child's cultural connections with the Indian tribe or its reservation;
(6)consideration of any perceived inadequacy of an Indian tribe's judicial systems;
(7)consideration of the perceived socioeconomic conditions within an Indian tribe or reservation; or
(8)a delay in placing an Indian child with the Indian child's extended family members or adult relatives, regardless of the stage of the child custody proceeding.
H. If the court denies the transfer for good cause, the basis for the decision shall be stated orally on the record and in a written order.
I. When a court authorizes transfer, the court:
(1)retains jurisdiction and shall not dismiss the case until the tribal court exercises jurisdiction and confirms that the tribe has received all information required by this section;
(2)shall expeditiously transfer to the tribal court all records related to the proceeding, including all pleadings and the court record; and
(3)shall direct the department to:
(a)coordinate with the tribal court and the Indian child's tribe to ensure that the transfer is accomplished with minimal disruption of services to the Indian child and the Indian child's family; and
(b)expeditiously provide at no cost to the appropriate tribal agency: 1) all records and original documents related to the Indian child in the department's possession, including a birth certificate, social security card, certificate of Indian birth and similar documents; 2) documentation related to the Indian child's eligibility for state and federal assistance; and 3) the entire case record in the possession of the department.
History: Laws 2022, ch. 41, § 7.