Indian Children - Preliminary Provisions And Definitions - CA Family Law

Section § 170

This law explains how certain terms are defined when dealing with Indian child custody cases, relying on definitions from a federal law called the Indian Child Welfare Act. It outlines what an 'Indian child custody proceeding' is, mainly focusing on custody situations that may not allow parents to easily regain custody of their children. Additionally, when an Indian child is connected to more than one tribe, the court must determine which tribe will be recognized in custody proceedings. Factors like where the child lives and their engagement with tribal activities help make this decision. The law also notes that if a child becomes a member of another tribe, earlier decisions remain valid.

(a) As used in this code, unless the context otherwise requires, the terms “Indian,” “Indian child,” “Indian child’s tribe,” “Indian custodian,” “Indian organization,” “Indian tribe,” “reservation,” and “tribal court” shall be defined as provided in Section 1903 of the Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.).

(b) When used in connection with an Indian child custody proceeding, the terms “extended family member” and “parent” shall be defined as provided in Section 1903 of the Indian Child Welfare Act.

(c) “Indian child custody proceeding” means a “child custody proceeding” within the meaning of Section 1903 of the Indian Child Welfare Act, including a voluntary or involuntary proceeding that may result in an Indian child’s temporary or long-term foster care or guardianship placement if the parent or Indian custodian cannot have the child returned upon demand, termination of parental rights, or adoptive placement. An “Indian child custody proceeding” does not include a proceeding under this code commenced by the parent of an Indian child to determine the custodial rights of the child’s parents, unless the proceeding involves a petition to declare an Indian child free from the custody or control of a parent or involves a grant of custody to a person or persons other than a parent, over the objection of a parent.

(d) If an Indian child is a member of more than one tribe or is eligible for membership in more than one tribe, the court shall make a determination, in writing together with the reasons for it, as to which tribe is the Indian child’s tribe for purposes of the Indian child custody proceeding. The court shall make that determination as follows:

(1) If the Indian child is or becomes a member of only one tribe, that tribe shall be designated as the Indian child’s tribe, even though the child is eligible for membership in another tribe.

(2) If an Indian child is or becomes a member of more than one tribe, or is not a member of any tribe but is eligible for membership in more than one tribe, the tribe with which the child has the more significant contacts shall be designated as the Indian child’s tribe. In determining which tribe the child has the more significant contacts with, the court shall consider, among other things, the following factors:

(A) The length of residence on or near the reservation of each tribe and frequency of contact with each tribe.

(B) The child’s participation in activities of each tribe.

(C) The child’s fluency in the language of each tribe.

(D) Whether there has been a previous adjudication with respect to the child by a court of one of the tribes.

(E) Residence on or near one of the tribes’ reservations by the child’s parents, Indian custodian or extended family members.

(F) Tribal membership of custodial parent or Indian custodian.

(G) Interest asserted by each tribe in response to the notice specified in Section 180.

(H) The child’s self identification.

(3) If an Indian child becomes a member of a tribe other than the one designated by the court as the Indian child’s tribe under paragraph (2), actions taken based on the court’s determination prior to the child’s becoming a tribal member shall continue to be valid.

Indian child custody Indian Child Welfare Act tribe membership significant contacts tribal activities custody proceedings tribal court parental rights tribal determination Indian custodian foster care guardianship placement tribal interests self-identification adoptive placement

(Added by Stats. 2006, Ch. 838, Sec. 1. Effective January 1, 2007.)

Section § 175

This law emphasizes California's commitment to protecting the interests of Indian children, especially in custody matters. It recognizes the importance of preserving tribal culture and connections and follows the Indian Child Welfare Act to prevent out-of-home placements. Even if an Indian child's parents' rights are terminated or the child isn't living with an Indian custodian, maintaining tribal ties remains essential. Courts must prioritize the child's best interest while complying with federal laws. Tribes' determinations about membership are crucial, demanding adherence to the Indian Child Welfare Act. Higher protective standards provided by any law will be upheld, and actions violating specific sections of the Act can be challenged.

(a) The Legislature finds and declares the following:

(1) There is no resource that is more vital to the continued existence and integrity of recognized Indian tribes than their children, and the State of California has an interest in protecting Indian children who are members of, or are eligible for membership in, an Indian tribe. The state is committed to protecting the essential tribal relations and best interest of an Indian child by promoting practices, in accordance with the Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.) and other applicable law, designed to prevent the child’s involuntary out-of-home placement and, whenever the placement is necessary or ordered, by placing the child, whenever possible, in a placement that reflects the unique values of the child’s tribal culture and is best able to assist the child in establishing, developing, and maintaining a political, cultural, and social relationship with the child’s tribe and tribal community.

(2) It is in the interest of an Indian child that the child’s membership in the child’s Indian tribe and connection to the tribal community be encouraged and protected, regardless of any of the following:

(A) Whether the child is in the physical custody of an Indian parent or Indian custodian at the commencement of a child custody proceeding.

(B) Whether the parental rights of the child’s parents have been terminated.

(C) Where the child has resided or been domiciled.

(b) In all Indian child custody proceedings the court shall consider all of the findings contained in subdivision (a), strive to promote the stability and security of Indian tribes and families, comply with the federal Indian Child Welfare Act, and seek to protect the best interest of the child. Whenever an Indian child is removed from a foster care home or institution, guardianship, or adoptive placement for the purpose of further foster care, guardianship, or adoptive placement, placement of the child shall be in accordance with the Indian Child Welfare Act.

(c) A determination by an Indian tribe that an unmarried person, who is under the age of 18 years, is either (1) a member of an Indian tribe or (2) eligible for membership in an Indian tribe and a biological child of a member of an Indian tribe shall constitute a significant political affiliation with the tribe and shall require the application of the federal Indian Child Welfare Act to the proceedings.

(d) In any case in which this code or other applicable state or federal law provides a higher standard of protection to the rights of the parent or Indian custodian of an Indian child, or the Indian child’s tribe, than the rights provided under the Indian Child Welfare Act, the court shall apply the higher standard.

(e) Any Indian child, the Indian child’s tribe, or the parent or Indian custodian from whose custody the child has been removed, may petition the court to invalidate an action in an Indian child custody proceeding for foster care, guardianship placement, or termination of parental rights if the action violated Sections 1911, 1912, and 1913 of the Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.). Nothing in this section is intended to prohibit, restrict, or otherwise limit any rights under Section 1914 of the Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.).

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(Added by Stats. 2006, Ch. 838, Sec. 1. Effective January 1, 2007.)

Section § 177

This law section outlines how specific rules apply when courts handle child custody cases involving Native American children. It states that certain rules from the Welfare and Institutions Code and the California Rules of Court must be followed as they were in 2007. It also specifies that terms like 'social worker' or 'county welfare department' should be interpreted as referring to whoever is trying to place the child in foster care, guardianship, or adoption. The rules mentioned here apply only to cases involving Native American children.

(a) In an Indian child custody proceeding, the court shall apply Sections 224.2 to 224.6, inclusive, and Sections 305.5, 361.31, and 361.7 of the Welfare and Institutions Code, and the following rules from the California Rules of Court, as they read on January 1, 2007:

(1) Paragraph (7) of subdivision (b) of Rule 5.530.

(2) Subdivision (i) of Rule 5.534.

(b) In the provisions cited in subdivision (a), references to social workers, probation officers, county welfare department, or probation department shall be construed as meaning the party seeking a foster care placement, guardianship, or adoption under this code.

(c) This section shall only apply to proceedings involving an Indian child.

Indian child custody foster care placement guardianship adoption Native American child Welfare and Institutions Code California Rules of Court social worker reference probation officer reference Section 224.2 Section 224.6 Section 305.5 Section 361.31 Section 361.7 Court rules 2007

(Amended by Stats. 2007, Ch. 130, Sec. 85. Effective January 1, 2008.)

Section § 180

This section outlines the procedures for notifying all parties involved in an Indian child custody proceeding. When a child's tribe, parents, or guardians are notified, the law requires both registered or certified mail and possibly additional first-class mail. The notification should include detailed information about the child, family, and the nature of the custody proceeding. The rights of the child's tribe and family, such as intervening in proceedings or requesting a transfer to a tribal court, are emphasized. It's mandatory that proof of notification is filed with the court ahead of hearings. The law prohibits holding proceedings until 10 days after everyone has been notified, with the option for a 20-day preparation extension. Any false information regarding the child's status as an Indian may result in court sanctions. If safety concerns like domestic violence are present, some contact information may be withheld.

(a) In an Indian child custody proceeding notice shall comply with subdivision (b) of this section.

(b) Any notice sent under this section shall be sent to the minor’s parent or legal guardian, Indian custodian, if any, and the Indian child’s tribe and shall comply with all of the following requirements:

(1) Notice shall be sent by registered or certified mail with return receipt requested. Additional notice by first-class mail is recommended, but not required.

(2) Notice to the tribe shall be to the tribal chairperson, unless the tribe has designated another agent for service.

(3) Notice shall be sent to all tribes of which the child may be a member or eligible for membership until the court makes a determination as to which tribe is the Indian child’s tribe in accordance with subdivision (d) of Section 170, after which notice need only be sent to the tribe determined to be the Indian child’s tribe.

(4) Notice, to the extent required by federal law, shall be sent to the Secretary of the Interior’s designated agent, the Sacramento Area Director, Bureau of Indian Affairs. If the identity or location of the Indian child’s tribe is known, a copy of the notice shall also be sent directly to the Secretary of the Interior unless the Secretary of the Interior has waived that notice in writing and the person responsible for giving notice under this section has filed proof of the waiver with the court.

(5) In addition to the information specified in other sections of this article, notice shall include all of the following information:

(A) The name, birthdate, and birthplace of the Indian child, if known.

(B) The name of any Indian tribe in which the child is a member or may be eligible for membership, if known.

(C) All names known of the Indian child’s biological parents, grandparents, and great-grandparents, or Indian custodians, including maiden, married, and former names or aliases, as well as their current and former addresses, birthdates, places of birth and death, tribal enrollment numbers, and any other identifying information, if known.

(D) A copy of the petition by which the proceeding was initiated.

(E) A copy of the child’s birth certificate, if available.

(F) The location, mailing address, and telephone number of the court and all parties notified pursuant to this section.

(G) A statement of the following:

(i) The absolute right of the child’s parents, Indian custodians, and tribe to intervene in the proceeding.

(ii) The right of the child’s parents, Indian custodians, and tribe to petition the court to transfer the proceeding to the tribal court of the Indian child’s tribe, absent objection by either parent and subject to declination by the tribal court.

(iii) The right of the child’s parents, Indian custodians, and tribe to, upon request, be granted up to an additional 20 days from the receipt of the notice to prepare for the proceeding.

(iv) The potential legal consequences of the proceedings on the future custodial rights of the child’s parents or Indian custodians.

(v) That if the parents or Indian custodians are unable to afford counsel, counsel will be appointed to represent the parents or Indian custodians pursuant to Section 1912 of the Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.).

(vi) That the information contained in the notice, petition, pleading, and other court documents is confidential, so any person or entity notified shall maintain the confidentiality of the information contained in the notice concerning the particular proceeding and not reveal it to anyone who does not need the information in order to exercise the tribe’s rights under the Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.).

(c) Notice shall be sent whenever it is known or there is reason to know that an Indian child is involved, and for every hearing thereafter, including, but not limited to, the hearing at which a final adoption order is to be granted. After a tribe acknowledges that the child is a member or eligible for membership in that tribe, or after the Indian child’s tribe intervenes in a proceeding, the information set out in subparagraphs (C), (D), (E), and (G) of paragraph (5) of subdivision (b) need not be included with the notice.

(d) Proof of the notice, including copies of notices sent and all return receipts and responses received, shall be filed with the court in advance of the hearing except as permitted under subdivision (e).

(e) No proceeding shall be held until at least 10 days after receipt of notice by the parent, Indian custodian, the tribe, or the Bureau of Indian Affairs. The parent, Indian custodian, or the tribe shall, upon request, be granted up to 20 additional days to prepare for the proceeding. Nothing herein shall be construed as limiting the rights of the parent, Indian custodian, or tribe to 10 days’ notice if a lengthier notice period is required under this code.

(f) With respect to giving notice to Indian tribes, a party shall be subject to court sanctions if that person knowingly and willfully falsifies or conceals a material fact concerning whether the child is an Indian child, or counsels a party to do so.

(g) The inclusion of contact information of any adult or child that would otherwise be required to be included in the notification pursuant to this section, shall not be required if that person is at risk of harm as a result of domestic violence, child abuse, sexual abuse, or stalking.

Indian child custody tribe notification registered mail parents rights tribal court federal law compliance Secretary of the Interior confidentiality extension for preparation court sanctions material fact falsification safety risks domestic violence exceptions bureau of Indian affairs tribal membership

(Added by Stats. 2006, Ch. 838, Sec. 1. Effective January 1, 2007.)

Section § 185

This law section explains that in custody cases involving a child who has Native American ancestry but does not qualify as an 'Indian child' under federal rules, the child's tribe can still participate in the court proceedings if they request to do so. The tribe might be allowed to attend hearings, speak to the court, receive notices, examine documents, and provide input about the child's placement, services, and programs available to the child. If multiple tribes want to participate, the one with the closest connections to the child might be chosen. This aims to help the court make decisions that are in the child’s best interest. However, this does not mean that the full Indian Child Welfare Act rules apply, nor does it stop other interested parties from participating in the case.

(a) In a custody proceeding involving a child who would otherwise be an Indian child based on the definition contained in paragraph (4) of Section 1903 of the federal Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.), but is not an Indian child based on status of the child’s tribe, as defined in paragraph (8) of Section 1903 of the federal Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.), the court may permit the tribe from which the child is descended to participate in the proceeding upon request of the tribe.

(b) If the court permits a tribe to participate in a proceeding, the tribe may do all of the following, upon consent of the court:

(1) Be present at the hearing.

(2) Address the court.

(3) Request and receive notice of hearings.

(4) Request to examine court documents relating to the proceeding.

(5) Present information to the court that is relevant to the proceeding.

(6) Submit written reports and recommendations to the court.

(7) Perform other duties and responsibilities as requested or approved by the court.

(c) If more than one tribe requests to participate in a proceeding under subdivision (a), the court may limit participation to the tribe with which the child has the most significant contacts, as determined in accordance with paragraph (2) of subdivision (d) of Section 170.

(d) This section is intended to assist the court in making decisions that are in the best interest of the child by permitting a tribe in the circumstances set out in subdivision (a) to inform the court and parties to the proceeding about placement options for the child within the child’s extended family or the tribal community, services and programs available to the child and the child’s parents as Indians, and other unique interests the child or the child’s parents may have as Indians. This section shall not be construed to make the Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.), or any state law implementing the Indian Child Welfare Act, applicable to the proceedings, or to limit the court’s discretion to permit other interested persons to participate in these or any other proceedings.

(e) This section shall only apply to proceedings involving an Indian child.

custody proceeding tribal participation Indian child federal Indian Child Welfare Act tribal community child's tribe extended family placement court discretion Native American ancestry tribe involvement tribal recommendations tribal contacts child welfare court hearings family services

(Added by Stats. 2006, Ch. 838, Sec. 1. Effective January 1, 2007.)