The Indian Child Welfare Act Governs Which Court Will Adjudicate Your Custody Dispute

The Indian Child Welfare Act (“ICWA”) is a forum selection statute.  It determines whether your Indian child custody dispute will be heard in state or tribal court. ICWA usually applies in the context of a custody dispute between an Indian guardian or parent who has had de minimus contact with the child for many years and the child’s non-Indian foster parents or guardians.

The first question in any ICWA case is the nature of your child custody proceeding. If it is a dispute between two presumptively fit parents that arises in the context of a divorce, then ICWA doesn’t apply. Likewise, ICWA doesn’t apply in juvenile criminal matters. However, if the child is dependent and the dispute arises in the context of an adoption, foster care placement, or a guardianship, then ICWA does apply.

Whether ICWA applies in third-party custody disputes, cases where parental rights have been neither terminated nor exercised, and cases where the Tribe has declined to intervene is something of a gray area.

The next question is whether the child qualifies as an Indian. An Indian child is under the age of eighteen and either an enrolled member of a federally recognized Indian Tribe or someone who is eligible for enrollment and is the biological child of an enrolled member.

If ICWA applies, it determines which sovereign has jurisdiction: the Tribe or the State. The Tribe has exclusive jurisdiction if the child is domiciled on the Reservation or if the child is a ward of the tribal court, regardless of the child’s domicile. In all other cases, the courts have concurrent jurisdiction, but the state court is supposed to transfer the proceedings to the tribal court, absent good cause to the contrary.