Child Custody and the Indian Child Welfare Act

Hossein Berenji, Apr 02, 2016

In recent weeks, California has exploded with news stories about a small child named Lexi. Lexi, at first review, is much like any other kindergarten student. She loves playing in her yard, horses, and drawing. However, unlike many other children her age, Lexi’s name has gotten national media attention due to a unique child custody issue.

The child custody dispute stems from a battle between Lexi’s California foster parents and the Choctaw Native American Tribe. Lexi has a small part of Choctaw heritage and her biological father is a member of the Choctaw tribe but her birth mother is not. However, while Choctaw is only a fraction of Lexi’s heritage it has caused a large stir in California over who is the best fit to be Lexi’s parents. The Choctaw tribe and Lexi’s biological father unsuccessfully tried to place Lexi with her father. After failed attempts to reunify Lexi with her father, she was placed in foster care until she could be reconnected with family.

The question of child custody relating to Lexi has received such a large amount attention because of a law that was passed in the 1970s called the Indian Child Welfare Act. Lexi is not the first child to recently come into the spotlight because of the Indian Child Welfare Act. Just two years ago another child the custody battle surrounding a girl named Veronica made it all the way to the Supreme Court, though the circumstances in baby Veronica’s case were markedly different. According to court documents, the Indian Child Welfare Act applies to Lexi because even though she is only 1/64 Choctaw, her heritage qualifies her for membership in the Choctaw tribe.

What is the Indian Child Welfare Act?

The Indian Child Welfare Act is a piece of federal legislation that was passed in 1978. The purpose of the Indian Child Welfare Act is to protect American Indian children and ensure the continued existence of Native American cultures in the United States. The act also helps Native American tribes exercise authority in child custody proceedings. The act was introduced to try and counteract the large number of Native American children who were removed from their homes and placed with families who did not have a tribal affiliation. Similar to traditional custody proceedings, the best interests of the child are a critical consideration under this act.

Child Custody in California

Generally, child custody in California also seeks to promote the best interests of the child. This term by itself is fairly subjective. To avoid arbitrary decisions, California has developed a series of factors that provide meaning behind the phrase “best interests of the child.” Some of the factors that are used to determine the best interests of the child are listed below.

  • The age of the child
  • The health, safety, and welfare of the child
  • The preference of the child, if the child is old enough to make a meaningful choice
  • The stability of any current or proposed living arrangements for the child
  • How the child has adjusted to their present home, school and community
  • The ability and capacity of each parent to participate in childcare
  • The relationship between the child’s parents and any other person who may affect the child’s welfare
  • Whether one parent was the sole parent responsible for the child’s upbringing
  • Whether there was any history of domestic violence in the family

A full list that the family court will consider when determining the best interests of the child can be found here. These factors are all weighed together in determining the best interest of a child.

Since 2012, Section 3042 of the California Family code has allowed the preference of a child has become more important than it used to be. If a child is over the age of fourteen but under the age of eighteen, the family court must listen to a child’s preferences when determining a custodial arrangement. If the child is under the age of fourteen, the court will first decide if the preference of the child will help the court make a determination as to what the child’s best interests are. The age of fourteen is not arbitrary, but rather it has been shown to be the age that children can make important emotional decisions.

Types of Custody

The California Family Code provides for both sole and joint custody. Sole custody can be both physical, meaning the child resides with the custodial parent, and legal, which means the custodial parent has the exclusive right to make important decisions about the child’s wellbeing, education, and welfare. The California family code also allows for different types of joint custody. Joint custody means that neither parent has completely exclusive physical or legal custody. The child may reside with both parents at different times and both parents will be able to make decisions on the child’s behalf.

However, even if two individuals share joint custody, this does not necessarily mean that a child’s time with each parent will be completely equal. Even in joint custody situations, there may still be a parent who is considered a primary caretaker. Joint custody is presumed to be the best custody arrangement for a child because both parents have the opportunity to be involved in a child’s life and development. If the parents are unable to cooperate with one another or one parent is deemed to be unfit, sole custody may be preferable.

California also allows individuals who are not the child’s parents to have custody, but this is subject to strict statutory standards. Individuals who are not parents of the child may be able to gain visitation rights, especially if they have a special relationship with the child such as being the child’s grandparents.

Developing a Parenting Plan

When child custody issues are present it is important for all parties involved to work with an experienced attorney to develop a document that details the responsibility of each parent, and provides information about the visitation that the parents have agreed too. The family court will review a parenting plan to ensure it is fair, and if it is, the court will sign the agreement, turning it into an enforceable court order. The parenting plan should include information about where the child will attend school, who the child’s medical providers will be, and which parent will make decisions for the child in times of emergency.

Modifying Child Custody Arrangements

The family court in California understands that what parties may originally agree to in terms of a custody arrangement may not remain effective or beneficial to the child in the time before the child turns eighteen. Circumstances such as changing education needs of the child or the moving away of a parent may qualify for the change of a custody order. However, changes in custody may be difficult to overcome, so it is critical to put as much thought as possible into the initial agreement.

How Do Child Custody Cases Differ Under the Indian Child Welfare Act?

Similar to a traditional child custody dispute, the focus of the Indian Child Welfare Act is to support and promote the best interests of the child. In addition to this best interests standard, the Indian Child Welfare Act sets additional standards that must be considered when there is a custody dispute involving a child that is part of, or that has ties to, a recognized tribe. The Indian Child Welfare Act provides that tribes have exclusive jurisdiction over adoption proceedings and concurrent jurisdiction for custody proceedings for children residing on a reservation. Concurrent jurisdiction means that both state courts and tribal courts have the ability to hear a case. The act defines an Indian Child as any unmarried child under eighteen who is a member of an Indian tribe or a child who is eligible for membership in an Indian tribe and has a parent who is a member of an Indian tribe.

What is the Controversy Surrounding Lexi?

Lexi was removed from a California home to be placed with some extended family of the Choctaw tribe located in Utah. Although Lexi had been in her California home for four years, her removal was authorized by a judge under the Indian Child Welfare Act. Supporters of the Act contend that Lexi’s placement in foster care was only supposed to be temporary, and her being placed with relatives, even if they are distant, is better than not being with relatives at all. Opponents of Lexi’s removal believe that the application of the Indian Child Welfare Act under these circumstances will be unfair and do more harm to the child than good.

Are You Involved in a Child Custody Dispute?

Whether you need help developing a parenting plan, creating a visitation schedule, believe you have a custody issue under the Indian Child Welfare Act, or are involved in any other child custody matter, it is important to contact a knowledgeable child custody attorney today. Let our qualified attorneys at Berenji & Associates work with you to develop a plan that is good for you and for your child.