Child Custody Cases in Indian Country. Presented by Professor Eileen Luna-Firebaugh and Deborah Goelman Materials by Southwest Center for Law and Policy and Legal Resource Center on Violence Against Women. As an advocate or an attorney, you may encounter these questions from survivors:.
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Presented by Professor Eileen Luna-Firebaugh and Deborah Goelman
Materials by Southwest Center for Law and Policy and Legal Resource Center on Violence Against Women
Can I leave tribal lands with my children to escape abuse?
Angela Jones lives in Lawrence, Kansas. She has resided in Kansas for the duration of her five-year marriage to James, a successful restaurant owner, and has two boys – Simon, age 4, and Jeremy, age 2. James has abused Angela for years, but she was afraid to seek help because of his threats to kill her if she called the police. Recently, after James choked her in front of Simon, Angela took the children and fled to a local domestic violence shelter, leaving her job. She does not like living in the shelter, and she only can stay there for seven more days. She wants to take the children and go live with her aunt and sister on tribal lands.
Angela is an enrolled member of the Tohono O’odham Nation. She visits her family with the children every All Soul’s Day and for a month during the Church Feast. James, who is non-Indian, does not come on these visits and has discouraged Angela from visiting, stating that he doesn’t want Simon and Jeremy to “pick up bad habits from their cousins.”
What legal issues might arise regarding her desire to relocate?
What non-legal issues (e.g., safety and economic) should you be prepared to discuss with her?
To protect Indian children and to promote the stability and security of Indian tribes and families by establishing minimum federal standards for the removal of Indian children from their families and their placement in foster or adoptive homes.
Types of jurisdiction: personal, subject matter, territorial
What laws may be relevant to the authority to hear domestic
violence and custody cases?
Tribal court judges should consider:*
*Adapted from Tribal Court Bench Book, App. B, by Judge Mary T. Wynne
State relocation and parental kidnapping laws also may be relevant to custody cases involving domestic violence, although they are not jurisdictional laws.
District of Columbia
U.S. Virgin Islands
Crucial provisions when domestic violence is involved:
Temporary emergency jurisdiction:
This means that a court can exercise emergency jurisdiction in domestic violence cases where the mother (but not the child) has been abused
Filing for temporary emergency jurisdiction:
Factors explicitly include:
Factors explicitly include:
Judicial communication is crucial:
Required between courts when one court exercises emergency jurisdiction.
The court with initial or modification jurisdiction must communicate with the court exercising emergency jurisdiction to:
Required when a court determines that a custody proceeding has been commenced in another state or tribal court with jurisdiction in substantial conformity with the UCCJEA.
Note that these UCCJEA requirements for judicial communication are new, so courts may not be familiar with them.
Continuing exclusive jurisdiction:
There are two ways to determine if the court in the original jurisdiction retains jurisdiction:
Legal Resource Center on Violence Against Women (301) 270-1550
Southwest Center for Law and Policy(520) firstname.lastname@example.org