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What is sufficient notice in a child custody case involving ICWA?

In a typical child custody hearing in Texas, only the parties to the case (as well as the Attorney General for child support purposes) needs to be given notice of a hearing.

However, if there is a child custody matter that involves an Indian child that changes. The reason is that the Indian Child Welfare Act (ICWA) requires that greater protections for the parties and their families are required. If your child is a member of an Indian tribe or is eligible for membership this blog post is important for you and your family.

For starters, the tribe that your child is a member of needs to be notified of a hearing as well. The reason being is that the tribe will confirm your child’s membership or eligibility for membership. Hearings like foster care placement hearings, termination of parental rights hearings and any Suit Affecting the Parent-Child Relationship (SAPCR) filed by Child Protective Services (CPS) require notice to be given to the tribe that your child is a member of.

In a case where CPS has filed a lawsuit against you due to reports of abuse or neglect of your child, ten days of notice is required for a foster care placement or termination of parental rights hearing. In fact, an additional twenty days of notice time may necessary to provide in the event that you or the tribe requests additional time to prepare for the hearing.

How is it determined if your child is a member of an Indian tribe?

The tribe that your child purports to belong to will make the ultimate determination on whether or not he or she is an active member or is eligible for membership. Remember also that your own membership in a federally recognized Indian tribe will also trigger ICWA’s applicability to your child’s case.

In many cases, your child will have documentation from a tribe showing that he or she is a member. However, if this is not the case and the tribe does not respond to notifications from the court about an active case that involves one of their members it will become more difficult for your child to prove their membership. As a result, you will need strong evidence outside of confirmation from the tribe that your child is a member. If none can be provided then ICWA may not be applicable.

Rather than to leave your child’s possible membership in an Indian tribe as an issue upon appeal of the case, your attorney should request that the judge make a ruling on the record early on in the case about whether or not your child is a part of an Indian tribe. This is in the event that there is unclear evidence that your child is part of a tribe and the tribe has failed to respond to notices regarding the pendency of the case.

How does ICWA play a role in a case where an emergency removal of your child is necessary?

Emergency removal of your child from your home or from the home of his or her other parent may be necessary in order to prevent imminent physical danger or harm to your child. The petition that is filed by the attorney for CPS has to contain specific information that relates to your child or your family’s membership in an Indian tribe. The specific physical or emotional danger that is present to your child must be noted as well.

We noted in yesterday’s blog post that if a request is made to transfer the case to a trial court then that request should be granted. If a request is not made and the case remains in the family law civil court then all ICWA safeguards and protections must be abided by.

Your rights as a parent under ICWA and the rights of the Indian tribe

You as well as a representative of the Indian tribe have the right to participate in any hearing involving your child, even if that is only able to be done by phone.

Either you or the tribe may petition the court in order to request a transfer from the civil court to a tribal court. This can be done through the submittal of a written order to the judge or can be a request made on the record regarding your desire to transfer the case. If your child’s other parent objects to your motion or if the tribe declines to take the case then the case will remain in the civil court.

What preferences are in place under ICWA for your child if and when he is removed from your home?

No matter who your child is placed with temporarily during your CPS case, the home must be able to meet any special needs of your child and be close to your family and any other siblings your child has.

Another important requirement under ICWA is that your child will need to be placed as close as possible to your relative’s homes so that your child can continue to build a relationship with the child.

What happens in a case affected by ICWA where your parental rights are at stake?

The Texas Family Code contains its own requirements that need to be met in a case that involves a possible termination of your parental rights or a situation where your child is going to be placed into foster care. ICWA has additional requirements that must be met as well to ensure that your extended family that is also members of the tribe have an opportunity to see him as frequently as possible.

When ICWA is applicable then a foster placement case must include the testimony of an expert witness that the continued custody by the parent is likely to result in serious emotional or physical harm. Because foster care placement goes against the goals of ICWA, every possible effort must be taken to find a suitable home with family members who are also Indians.

It is very difficult to have parental rights terminated in the event that ICWA is applicable. The reason being is that evidence beyond a reasonable doubt- the same standard of proof that is a part of criminal cases in the United States- must be presented to a court that the continued custody of your child by you is likely to result in serious emotional or physical damage to the child.

What is serious emotional or physical damage?

There must be a direct and causal relationship between the conditions in your home and the harm that your child has suffered or the risk of specific harm to your child.

Whatever evidence is found, CPS must take steps to help you remedy these issues so that your child can be returned to you in the future.

Questions about ICWA or a case that involves ICWA? Contact the Law Office of Bryan Fagan

If you are in a situation where ICWA is relevant to your life please contact the Law Office of Bryan Fagan, PLLC with any questions. We offer free of charge consultations six days a week with a licensed family law attorney. We can answer your questions and address any concerns you have about this subject.

Thank you for taking an interest in this topic and learning with us this week. It would be an honor to speak to you about serving you, your child and your family in representing you in family law related matter.


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