When a child is born to a Native American parent, or is identified as a member of a Native American tribe, specific guidelines need to be followed in a number of custody matters. These mandatory guidelines were first passed into law in 1978 as the Indian Child Welfare Act (ICWA). This federal law governs jurisdiction over the removal of American Indian and Alaska Native children from their parents and helps them remain connected to their families, cultures, and communities.
This law was greatly needed at a time when a high number (up to 35%) of Native American children were being removed from their homes by state courts, welfare agencies, and private adoption agencies and placed in non-Indian homes, where no Indian culture was present. The ICWA’s purpose was to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families”. In order to do that, the ICWA transfers decisions regarding most child custody proceedings to tribal governments when the child (any unmarried person under age eighteen) resides on reservation or tribal land, and is a member of or eligible for membership in a federally recognized tribe. A number of states have enacted their own policies, which complement the federal ICWA and provide additional protections to Native American children.
It is very important for parents to understand which areas of child custody the ICWA applies to, and which areas are excluded. The ICWA specifically states that state courts have no jurisdiction over the following child custody proceedings:
Removal and foster care placements
Voluntary and involuntary termination of parental rights
Minor juvenile delinquency cases
Divorce proceedings or custody disputes in which neither parent will obtain custody
It is important to note that a biological parent (Indian or non-Indian) has the right to object to and veto a proposed transfer of a child custody case to tribal court, but the objection might be denied by the state court.
In contrast, the ICWA does not cover:
Criminal juvenile delinquency cases
Divorce proceedings or custody disputes between two parents
This last exception means that, even if both parents and their child are Native Americans and reside on tribal land, they still have to follow state law if they file for divorce and need to make decisions regarding legal and physical custody, and child support. Mediation is an option available to all couples and it can help resolving all issues surrounding the divorce while minimizing conflict. An experienced divorce mediator will guide parents through not only child custody and child support, but also spousal support (alimony), asset and debt division, retirement and pension plan division, and any other issues. Divorce mediation is fast and usually helps couples reach a final agreement in just a few months.