Custody Dispute Between Parent & Indian Custodian

A recent case from division one, Custody of CCM, gives me the unique opportunity to blog my own case. I represented the appellants in this case. We won. CCM pitted a non-Indian father against the Indian grandparents. I had the grandparents. Thus, the facts lay in the intersection between two sometimes contradictory statutes: the U.S. Indian Child Welfare Act and Washington’s third-party custody statute. The case raised several issues: 1) Notice to the child’s Indian tribe, 2) Cure for defective notice, 3) The standard for determining where to place the child, and 4) Child support. We won on three of the four issues. In terms of notice, the court held that ICWA requires that the child’s Indian tribe needs formal notice of any custody proceeding regarding the child. Formal notice means certified mail, return receipt requested, to the proper tribal authority. If the notice is defective in any way, the Tribe gets a new trial. In terms of the placement standard, in a custody dispute between two parents, the state-law standard is best interest of the child. However, in a custody dispute between a parent and a non-parent, the standard for placing with the non-parent is much higher. The child is placed with the parent unless 1) the parent is unfit or 2) moving the child from the non-parent to the parent would cause the child actual detriment to his health and well-being. I argued that this standard didn’t apply to the grandparents because they were the Indian custodians. Since ICWA treats parents and Indian custodians the same, the standard should be the same – best interest. I still think it is a good argument, but it lost. The court held that, where federal law – ICWA – treats the parties the same, the standard for which party gets the child is the state law standard.


7 responses to “Custody Dispute Between Parent & Indian Custodian

  1. Let me get this straight. I believe what you just stated was that in the case of a non-parent, albeit the non-parent is an enrolled Indian may win a case over a parent, only if the parent was non Indian?

    I am enrolled Standing Rock Tribe and I want custody of my granddaughter, as her Mother, also and enrolled Indian, gave up the child to a 1st cousin.

    Do I have a chance against this 1st cousin since I would be next of kin should something happen to both my son and the baby’s mother?

    • I am not a member of the bar of the Standing Rock Tribe, so I can only make general comments.

      1. The forum for hearing this dispute would probably be tribal court, not state or federal
      2. Most jurisdictions that I am aware of would make parental rights equal against each other, but superior to anyone else
      3. If neither parent is fit, the jurisdiction would look first to kin, then to non-kin.
      4. Thus, in this case, if the mother is unfit due to drugs or whatever, your son would have the strongest claim to custody.
      5. The next strongest claim would be kin. The jurisdiction would compare your parenting skills / ability to provide for the child to the 1st cousin. Whichever party was stronger, would, at least in theory, get custody.

  2. i have a niece who is non indian and the dads side is quinault the mother lost custody to the tribe, but the dad can never get her(this is there daughter she has never lived on the reservation and never lived with the dad only when they were together..) he will never get custody and the daughter to these two is in tribal custody . When my mother has had her for the last three years, her granddaughter and greatgrandaughter. We are fighting these grandparents for custody they are in no way fit to raise a 4 year old..she does not know these people they will not let us talk to her they are cutting her off to her mothers side of the do we go about getting custody with a different court there court are all related to each other…we want her back. How would we be able to have a federal judge hear this case…they will not even let the mom see her or talk to her…she was just placed with them..please help us..

  3. Debra Belford

    Sue, can you please update me on your situation. I hope things have improved since May. You are fighting the Tribe and ICWA. There is a group called Christian Aliance of Indian Child Welfare. Just google and you will come to their website. They can provide you with support and more info. Debbie

  4. Debra Belford

    Mr. Lewis, I hope that the placement with the grandparents was in the best interest of the child and not just because they were native. ICWA does not look at was is in the best interest of the child in many situations, it’s only interest is in perserving the tribe and the money that is brought in with each new member of the tribe. ICWA WAS a good law for the time, but now it is being used in ways that hurts families. It is time for a change, a change that gives non-native parents equal rights to their children. Native American children deserve the same rights as every other child, and should not be looked upon as possessions. I have much more to say but I am done for now. Debbie

    • Debbie,
      This was a case where the grandparents raised the child (grandma took the baby home from the hospital). Dad didn’t even see the child for 7 years. The child was bonded to the grandparents. Then Dad decided to become involved. Eventhough we won the appeal, we lost when the case was re-tried. Dad eventually gained custody of the child based on his Constitutional rights. The basic legal analysis is that the U.S. Constitution trumped the state-law best interest standard and the ICWA tribe-is-best standard.

      I have absolutely no doubt that the child was better off with my clients, her Indian grandparents. As you well know, I don’t take cases where I think the child’s best interest lies with the other side. As you also know, I have real issues with how the courts have interpreted ICWA. I think ICWA should be applied only to prevent non-Indians from, essentially, kidnapping Indian children who are already living on the Reservation. I think if an Indian child has never set foot on the Reservation and has a strong bond with non-Indian de facto parents, that bond should be preserved. ICWA worked against you and the best interest of your child in your case and I deeply regret I unable to help in your situation

  5. Debra Belford

    Yale, It sounds like you did everything you could in this case to do what was right for this child as you did in our case. As you can tell, it still hurts, and I become defensive and sometimes angry when I think about ICWA. I want to commend you for continuing on taking challenging cases! Maybe someday things will change. Debbie

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