National Indian Country Clearinghouse on Sexual Assault

Child Custody

American Indian/Alaska Native victims of intimate partner sexual violence often fear losing custody of their children if they leave their abuser.

 

They may also lack the independent resources necessary to feed, clothe, and safely shelter their children once they leave. It is not uncommon for an abuser to threaten to kill their partner and children if the woman leaves. Many abusers make threats to “take the kids away” if the victim leaves as a means of maintaining power and control over the victim.

 

 

left barThese threats should be taken seriously. The time of separation from an abusive

partner carries with it a high risk of lethality. Making an attempt to escape a home filled with domestic and sexual violence may actually increase the risk of injury or death for a victim and her children. Careful safety planning and preparation can provide a victim of intimate partner sexual violence with her best chance at safely leaving an abusive home while keeping her children safe and in her care.

 

What is the proper jurisdiction for a Child Custody Order?

Several years ago, parents involved in contentious custody disputes forum shopped for a favorable court to issue child custody and visitation orders.  Under this system, some parents kidnapped their children and moved to another jurisdiction in order to take advantage of favorable child custody laws.  This practice was impractical for a number of reasons: first, it encouraged parents to kidnap their own children, which had huge, negative consequences on the well-being of the children, and, second, it led to several different courts in different jurisdictions issuing inconsistent orders regarding the custody, visitation, or support of the children.   Often, these state visitation and custody orders were issued without the knowledge of one of the child’s parents.

 

In response, the United States Congress passed the Parental Kidnapping Prevention Act (also known as PKPA or 28 U.S.C. § 1738A).  The PKPA applies to all custody issues on American soil, whether these issues occur on tribal lands, in a Public Law 280 state, in the District of Columbia, or in one of the American territories.  Under PKPA, a child’s home jurisdiction (referred to in the PKPA as the child’s “home state”) is given preference over all other jurisdictions for filing a custody order.  A child’s home jurisdiction can be a tribe, a state, the District of Columbia, or an American territory.  For example, if a child is born and raised on White Mountain Apache lands, the White Mountain Apache tribal court would have jurisdiction over the child’s custody order.

 

 Further, state courts and other courts must give full faith and credit to child custody and child visitation orders issued by the child’s home jurisdiction, unless the child’s home state has declined to exercise jurisdiction over the matter.  This means that the state must enforce and not modify any child custody and visitation orders issued by the child’s home jurisdiction.  For example, if the same White Mountain Apache child as above is the subject of a child custody order in White Mountain Apache tribal court, Arizona state courts must respect and enforce the tribal court’s order and cannot modify it.

 

Also, state courts must defer to the “exclusive continuing jurisdiction” of the child’s home jurisdiction.  In other words, only the child’s home jurisdiction has the power to modify child custody and visitation orders.  For example, if the same White Mountain Apache child as above is the subject of a child custody order in White Mountain Apache tribal court, only the White Mountain Apache Tribal Court has the power to change the details of the order. 

 

Finally, PKPA requires that the following parties have reasonable notice of the proceedings and opportunity to be heard: contestants (a person, including a parent, who claims a right to custody or visitation rights with respect to a child); any parent whose parental rights have not been terminated; and any person who has physical custody of the child. 

The PKPA answered a lot of questions and discouraged parents from kidnapping their own children, but it was not perfect.  Even after PKPA, there were a lot of ambiguities concerning jurisdiction over child custody and visitation orders.  For example, what would happen if the child did not have a home jurisdiction or the child’s home jurisdiction declined to exercise jurisdiction over the case?  What happened if the child cut all ties with his or her home jurisdiction? 

 

In order to answer these questions and ensure compliance with the strictures of PKPA, many states have enacted the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA).

 

 The UCCJEA is a uniform state law that was approved in 1997 by the National Conference of Commissioners on Uniform State Laws.  Significantly, the UCCJEA is a state law that states have voluntarily chosen to enact, and it does not modify or overrule the PKPA.  Very few tribal governments have chosen to enact the UCCJEA.  Thus, insofar as jurisdiction over custody disputes in Indian Country are concerned, the UCCJEA is likely not applicable, but these disputes are always subject to the requirements of PKPA.  Further, because the UCCJEA is state-law-centric, a child’s “home jurisdiction” is referred to his or her “home state.”  As of summer 2013, every state except for Massachusetts has adopted the UCCJEA.

 

The UCCJEA applies when custody and visitation issues arise in proceedings for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection orders from domestic violence.  The UCCJEA does not apply to child support proceedings or adoptions.

 

In accordance with PKPA, the UCCJEA gives a child’s home state preference over all other possible forums.  For the purposes of the UCCJEA, a child’s home state (or jurisdiction) is the jurisdiction in which the child lives (as of the commencement of the proceedings) or if it is the state that was the child’s home within six months of the proceedings’ commencement and the child’s parent (or a person acting as his or her parent) continues to live in the state even after the child has been removed. 

If the child does not have a home state or if the child’s home state declines to exercise jurisdiction over the child custody or visitation order, another state can assume jurisdiction over the child custody or visitation order under “significant connection” jurisdiction or under “more appropriate forum” jurisdiction.  A state can exercise jurisdiction under the “significant connection” doctrine, if the child’s home state has declined jurisdiction (or if the child does not have a home state) and the child has sufficient ties to the state.  It is important to note that more than one jurisdiction can have “significant connection” jurisdiction over a child custody case, and a child does not have to reside in a state or territory in order for it to have “significant connection” jurisdiction over him or her.  A third type of jurisdiction exists under the UCCJEA when both the home state and significant connection state(s) decline jurisdiction in favor of another, more appropriate state on grounds of inconvenient forum or unjustifiable conduct.  This type of jurisdiction is referred to as “more appropriate forum” jurisdiction. 

 

Under PKPA, the original jurisdiction that issued the child custody or visitation order has exclusive, continuing jurisdiction to modify its decree unless (1) the court loses significant connection jurisdiction or (2) the child, the child’s parents, and any person acting as the child’s parent no longer live in the state.  Only the court that issued the decree can determine whether it continues to have custody over the matter.

 

It is important to note that the Indian Child Welfare Act and the PKPA supersede any conflicting provisions of the UCCJEA.  Furthermore, child custody proceedings in state courts that involve jurisdictional disputes between tribes and states are governed by the UCCJEA only if the state jurisdiction has enacted optional sections 104(b) and (c) of the UCCJEA, which require State courts to treat tribes as if they were States and give full faith and credit to tribal-court-issued child custody and visitation orders. 

 

Why Are Child Custody Orders Important?
Absent a court order formally awarding custody, both biological parents have equal rights to custody of the children.   This means that, without any court orders in place, a biological father who has committed spousal rape may have equal rights to decide where the children will live, where they will go to school, which church they will attend, and what medical services they will receive. He is free to take the children off of tribal lands and to travel with them. Conversely, absent any court orders to the contrary, the victim is also free to move with the children within the United States without consulting their biological father.   

 

Best Interest of the Child
In awarding custody, tribal and state courts take in to account which custody arrangement will be in the best interest of the child. Some jurisdictions have begun to adopt laws recognizing that abusers are not the most appropriate parent for custody of minor children. For example, Arizona has adopted a “rebuttable presumption” that the victim is the most appropriate custodial parent in child custody cases where domestic violence has been alleged.

 

Tribal codes may also contain formal code provisions favoring child custody awards to the mother in traditional, matriarchal societies.  Even absent these code provisions, American Indian/Alaska Native mothers may be able to successfully argue custom and tradition to win child custody in matriarchal nations.

 

Emergency, Temporary Orders
Emergency, temporary custody orders can frequently be obtained in protection order proceedings as well as at the onset of child custody litigation. Emergency, temporary child support and visitation provisions can also be included in the protection order issued in many tribal and state jurisdictions.


Emergency, temporary orders are a stop-gap measure instituted for a short period of time to keep the children safe and to provide some certainty as to where and when the child will live, go to school, and visit family.  These emergency orders are typically re-litigated during a full hearing where both sides can present evidence and testimony as to which custody arrangement is ultimately in the best interest of the children. 

 

Legal terms vary greatly by jurisdiction. Possible custody arrangements generally fall under the following categories: joint (shared) legal custody, sole legal custody, joint (shared) physical custody, and sole physical custody. 

 

Legal Custody

A parent awarded legal custody of a child has the right to make critical decisions about where the child will go to school and attend church, what type of medical care the child will access, and the type of upbringing that the child will have.

 

Joint Legal Custody

Many jurisdictions favor joint legal custody awards where both parents have equal rights and responsibilities to make important decisions about the welfare of the child. Joint legal custody does not preclude a court from ordering that the child reside solely with one parent (sole physical custody).

 

Sole Legal Custody
A parent awarded sole legal custody is the only parent who has the power to make important legal decisions on the child’s upbringing.  Sole legal custody is normally awarded when the other parent is unfit in some way or is a danger to the child. Even if sole custody is awarded to a mother, a court may still award generous visitation to the other parent.

 

Physical Custody
A parent awarded physical custody of a child has the rights and responsibilities of living in the same home as the child.

 

Joint Physical Custody
Joint physical custody is typically awarded where both parents are actively involved in the parenting process and the child lives in both homes. Typically there is a schedule where the child will alternate weeks or days between the homes or will spend school and summer vacation with the other parent.

 

Sole Physical Custody
When sole physical custody has been awarded, the child will live with only one of the parents.   Even if one parent has been awarded sole legal and physical custody of a child, the court may still order reasonable visitation for the non-custodial parent.

 

National Indian Country Clearinghouse on Sexual Assault, a project by the Southwest Center for Law and Policy © 2017

This project was supported by  Grant No. 2011-TA-AX-K045 awarded by the Office on Violence Against Women. Points of view in this document are those of the author and do not necessary represent the official position of the U.S. Department of Justice. All rights reserved. | Privacy policy   Login