American Indian Custody Laws

By Heather Frances J.D.

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Courts generally decide child custody issues by looking at state laws, but some American Indian children are also protected by the Indian Child Welfare Act, a federal law passed in 1978. This law was intended to restrict the dilution of tribal culture resulting from the adoption of Native American children by non-Indian families. The Act typically does not apply to divorce situations, but it can apply to certain other custody cases, giving the tribal courts additional rights.

Federal Laws Apply in Some Situations

The Indian Child Welfare Act only applies to certain cases in which a non-parent might gain custody of an American Indian child, such as foster care placements, termination of some parental rights, pre-adoption placements and adoption placements. For example, if an American Indian child is removed from his home and placed in foster care, even temporarily, the ICWA applies. It does not apply to custody disputes between divorcing parents or delinquency proceedings involving criminal acts by an American Indian child.

Federal Laws Only Apply to Some Children

The ICWA will not apply to any custody proceeding if the child involved is not a member of a federally recognized Indian tribe or he is not eligible for membership and does not have a biological parent who is a member. Each federally recognized tribe is free to set its own membership criteria, however, so the types of tribal ties that form membership in one tribe may not form membership in another tribe. If the child does not qualify for membership in a tribe, state laws -- rather than the federal ICWA -- apply to his custody arrangements.

Custody in Divorce

Since the ICWA does not apply to custody fights between divorcing parents, parents of American Indian children face the same types of custody issues faced by parents of non-Indian children. During a divorce, courts split legal and physical custody between the parents. Legal custody is the right to make important decisions about the child's life, such as where he goes to school or what medical treatment he receives, and physical custody refers to the right to make day-to-day decisions for the child. Courts can award joint or sole physical or legal custody to either parent.

Visitation in Divorce

Courts also determine visitation rights during a divorce, and the ICWA typically does not apply to divorce-related visitation decisions. Like non-Indian families, Indian couples can decide how to split their parenting time, or visitation, with their children after the divorce. If the parents cannot agree, the divorce court will decide for them. The parents can split time nearly evenly, for example, or one parent may spend significantly more time with the child than the other. In cases where a child has been abused by one parent, courts can order supervised visitation, allowing the child to spend time with the abusive parent while still keeping the child safe.