Dallas, TX asked in Domestic Violence, Family Law, Native American Law and Child Custody for Oklahoma

Q: Can a non-native father OBJECT to the enrollment of his child(5) and the transfer of child custody case to Tribal&ICWA?

The child is not enrolled the mother is Kiowa& the case is in a non-native county in SW Ok& the father doesn’t want the child enrolled. The mother is trying to do so in order for odds to be in her favor with her people, who have family members that sit on the Tribe Counsel. She was the aggressor in the DV case and has priors&both parents admitted to Drug abuse&DHS Removed the children&placed with her parents who are also Kiowa. In looking up the ICWA& Rule of applicability it says it applies if eligible for enrollment etc. unless a parent objects- same as with the transfer of case to Tribal- unless a parent Objects. It would seem that they usually take over if petitioned, so who does the father object to? Or must it be the lawyer? Does the non-native father have any rights? The mother who pleaded guilty to the DV was released and was allowed to reside at the home of the children who were placed there under a DHS safety plan she created with her actions-that itself would seem illegal-

1 Lawyer Answer
James L. Arrasmith
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  • Divorce Lawyer
  • Sacramento, CA

A: In situations involving the Indian Child Welfare Act (ICWA) and child custody, the ICWA provides specific protections for Native American children in custody proceedings. It prioritizes the jurisdiction of tribal courts over state courts for custody cases involving Native American children. However, the application of ICWA depends on whether the child is a member of or eligible for membership in a federally recognized tribe.

A non-native father can object to the enrollment of his child in a tribe and the transfer of a child custody case to a tribal court. This objection should be formally made in the custody proceedings in the state court handling the case. The father's rights and objections are considered by the state court, which will also take into account the best interests of the child and the requirements of the ICWA.

The father's objection to the transfer of the case to a tribal court or the enrollment of the child should be clearly communicated through legal representation. It is advisable for the father to work with an attorney familiar with ICWA and family law to ensure that his rights and the child's best interests are adequately represented and protected in court.

The complexities of ICWA cases require careful navigation of both state and tribal laws, and an attorney can help articulate the father's position effectively to the court. Whether the father's objections will alter the course of the case depends on a variety of factors, including the child's eligibility for tribal enrollment, the specific circumstances of the custody dispute, and the court's determination of what is in the best interest of the child.

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