Legal Question in Family Law in California
I am a mexican man, my american girlfriend and i got together and had a baby in san diego california one year ago. we moved to mexico when our baby was five months old we separated here in mexico and though she was the one with the custody i had visitation every weekend, my ex recently martried an american man who is also native american indian from california. they have moved back to california together and may be living in his reservation how can i get my daughter back? do i forcefully have to go to their tribe?
2 Answers from Attorneys
Her husband's status as a Native American has no bearing on your rights and how you proceed. Under long standing law, codified in Public Law 83-280, the U.S. state courts have jurisdiction over non-indians and non-indian issues, regardless of a connection to an indian reservation. So you would follow the same process and procedures as any father in such a case. You don't mention if you filed a Declaration of Paternity when the child was born in San Diego. If so, you need to file an action in the county where they are living to establish custody. If you did not file a Declaration of Paternity, you will have to file a lawsuit to establish paternity, and as part of that suit you will ask for a custody order.
Was that a court order which allowed you visitation? If so then you need to enforce the order or modify it for primary custody. Contact me directly.
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