K. Child Custody

Question 1

When will Indian tribes have jurisdiction over Child custody proceedings involving Indian children?

Answer 1

Indian child residing/domiciled within Indian tribe

Indian child NOT residing/domiciled within Indian tribe

• State court proceeding for foster care placement/termination of parental rights
• Transfer from State Court proceeding to Indian jurisdiction
• UNLESS Parent objects

Question 2

How may court determine Child’s custody if disputed by Parents?*

Answer 2

Child’s best interests

• Quality of home environment
• Parental guidance provided
• Parents’ financial status + ability to provide
• Parents’ relative fitness
• Period of custody
• Domestic violence + preponderance of evidence
• Any prior awards
• Child’s preferences

Question 3

When may Court deprive Parent’s custody of Child in Child’s best interests?

Answer 3

Surrender
Abandonment
Neglect
Unfitness
Other like extraordinary circumstances

Question 4

When may visitation/access to Child by Non-Custodial Parent NOT be allowed?

Answer 4

Exceptional circumstances

• Visitation/Access would be harmful to Child’s welfare
• Parent forfeited access rights in some manner

Question 5

When may Grandparents seek custody/visitation?

Answer 5

1) Standing
- Grandchild’s parents are dead
- Circumstances warrant Court’s equitable intervention

2) Appropriate in Child’s best interests

Question 6

When may Non-Birth/Non-Adoptive Parents have standing to petition for custody/visitation of Children?*

Answer 6

1) Agreement with Birth Parents to conceive and raise Child as co-parents
2) By clear + convincing evidence

Question 7

What are the types of custodial arrangements?

Answer 7

Sole custody

Joint legal/physical custody
- Relatively stable, amicable parents behaving in mature civilised fashion

Question 8

What is required for modification of custody/visitation orders?*

Answer 8

Change in circumstances

Necessary to ensure Child’s continued best interests

Question 9

What may Court consider regarding whether relocation of Child from Parent be appropriate?*

Answer 9

1) ALL relevant facts and circumstances
- Impact of relocation on Child + Non-custodial Parent’s relationship
- Impact of relocation on Custodial + Non-custodial Parent’s relationship
- Impact of relocation on extended family relationships
- Economic necessity/health-related concern that justifies relocation
- Second marriage’s demands
- Custodial Parent’s opportunity to improve his economic situation
- Parents’ good faith in requesting/opposing relocation
- Child’s respective attachment to Parents
- Possibility of devising visitation schedule allowing Parent to maintain meaningful relationship
- Quality of lifestyle that Child would have if relocation was allowed/NOT allowed

2) Most likely outcome to serve Child’s best interests