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Indian Child Welfare Act could result in child custody change

In America, most people live by the same standards, regardless of the state in which they live. However, when a child custody case involves a Native American, the state legal system does not always have a say in how a custody dispute is handled. According to the child services department in a state outside of Colorado, a state court is required to notify the officials of the tribe in question or to notify the federal Bureau of Indian Affairs (BIA) when there is a Native American child involved in a custody dispute.

Last January, a state family court took parental rights from a mother who had a history of drug problems and diagnosed mental issues. Later, the appellate court found that the judge followed the state law. However, neither the tribe nor the BIA were notified of the case. The state argued that the ethnicity of the child was unknown, but found that the court was still required to make the notification. This is all due to the 1978 Indian Child Welfare Act, which is a federal law.

In this case, the mother and baby both tested positive for PCP when the child was born in 2012. Allegedly, there has been continued drug use by the mother since that time. For that reason, the child has been in the custody of a family friend since she was only days old. Even with the mother's history, the tribe has the ability to challenge the court's ruling, overrule the state's child custody decision and even stop a pending adoption if it feels that the child will suffer by being adopted by someone who is not a member of the tribe.

In this case, the father is unknown, but in cases in which one parent is a Native American and one is not, both parents may want to seek assistance from legal professionals who are experienced in complex child custody cases. Cases governed by tribal law are likely to be confusing, and attorneys familiar with both federal and Colorado state laws concerning child custody will be able to answer all questions parents have. In addition, they will be able to help parents work toward child custody agreements that are fair to both the parents and the children. 

Source:, "Mom with drug history wins parental rights appeal in Camden County", Jim Walsh, Feb. 22, 2015

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