Legal Question in Family Law in Minnesota

Re: Native American custody issues

Thank you for your question.

I presume your question concerns the determination of custody where one party is Native American. (For purposes of this question, I presume the Native American party is a member of a federally recognized tribe. If not, then he or she is not a "Native American" within the meaning of the law.)

In an ordinary divorce or paternity case, the Native American ethnicity of the parties is largely irrelevant. In most cases (whether in Minnesota or California), custody is determined by using the "best interests" standard. This means custody will be given to the parent who can provide for the "best interests" of the child. In Minnesota, one of the factors the court will consider is the ethnic or cultural traditions of the parents and children. Therefore, if the child is raised as a Chippewa, for example, and observes cultural traditions, the court may be more inclined to grant custody to the parent who will ensure that those traditions are respected. That factor is not determinative, however.

In cases where a child is being placed for adoption, or where parental rights are being terminated, then the Indian Child Welfare Act is invoked -- provided the child is a Native American (which generally means the child is a member of a federally recognized tribe, or is otherwise elligible for enrollment). But the ICWA only applies in those cases -- it has nothing to do with ordinary custody cases, where the court is being asked to determine custody as between the child's parents.

All of this assumes the parties and child do not live on a reservation. In some instances, they may be subject to tribal court jurisdiction (depending on residence and tribal affiliation).

Thank you for your question. If you have further questions, my contact information is below.

Good luck.