New Mexico Child Custody Issues Involving Native American Children

Child custody disputes in New Mexico can involve many special circumstances that may not commonly arise in other states. For instance, given the large Native American population in New Mexico, a number of the children caught in custody disputes may be Native American. New Mexico is home to 19 Pueblos, two Apache tribes, and a large portion of the Navajo Nation. In addition, many Native Americans live off reservation throughout the state, concentrating in Albuquerque, Farmington, and Gallup. According to the US Census Bureau, in 2010 an estimated 9.4% of New Mexico‘s population was American Indian. Custody disputes involving Native American children have several important implications of which all parents need to be aware.

Under New Mexico law, child custody proceedings involving Indian children are governed by the federal Indian Children Welfare Act (ICWA). Congress enacted ICWA in 1978 as a response to the overwhelming placement of Indian children in white foster homes and the perceived destruction of Indian culture. ICWA gives tribal courts exclusive jurisdiction over some cases and places procedural safeguards to ensure that if custody matters are litigated in state courts, the tribe has notice and an opportunity to participate in the determination.

Under ICWA, tribes have exclusive jurisdiction to decide custody matters concerning Indian children that reside on the reservation. If children do not reside on the reservation, the matter should be transferred to tribal court unless the tribal court declines jurisdiction or the parent objects to the transfer. When custody proceedings are held in state courts, both ICWA and New Mexico law mandate that the child‘s custodian and tribe be given notice of the proceedings. In state courts, ICWA places higher and different standards of evidence on proceedings involving Indian children. Furthermore, the child‘s custodian and the tribe may intervene at any point in the proceedings.

ICWA also gives tribal court decisions full faith and credit, meaning that any decision by a tribal court will carry the same weight as a decision from any other state court. Other requirements include preferential placement with extended family, other tribe members, and other Indian families when deciding adoption cases. ICWA also mandates safeguards for when an Indian parent wishes to relinquish parental rights, including giving the custodian and tribe notice and a mandatory court appearance where a judge explains the consequences of relinquishing rights as a parent.

In order for ICWA to apply the following circumstances must exist: (1) the proceedings must be “child custody proceedings,” which include adoption, termination of parental rights (TPR), and foster care; (2) the child must be a member of a federally recognized tribe or (3) the child must be eligible to be a member of the tribe and have a biological parent who is a tribe member.

If a child custody case is transferred to a tribal court, there are several important facts that parents must be aware of. Even though it is difficult to generalize, there are a number of significant differences between state and tribal courts. For one thing, to argue a case in many tribal courts, including Navajo courts, attorneys must be specifically admitted to practice before the tribal court. Additionally, tribal court judges may or may not be attorneys themselves. Tribal court judges are often members of the tribe who are sometimes elected and at other times appointed by tribal councils. Most tribal courts follow tribal codes, which may or may not be written. Moreover, tribal courts are not bound by the decisions of US state or federal courts and follow their own precedent.

Child custody issues are complex, emotional and often highly contentious. New Mexico child custody laws are even more complex if there is a chance that the proceedings involve a Native American child. When involved in any type of child custody matter in New Mexico, it is important to consult an experienced family law attorney to help guide you through the process.

Collins & Collins, P.C.
Albuquerque Attorneys


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