questions & answers

Question: My fuance is in jail facing prison time he has a son whom he left in my care in his home on the reservation his aunt filed for custody of my stepson and won citing that i was not a tribal member and therefore did not qualify as a suitable gaurdian. My stepson is not a registered tribal member and i will be marrying his father soon.my son currently lives off rez with his aunt now are there jurisdiction issues? Can i petiin the court in his aunts area to be heard? Do i have any kind of legal legs to stand on?i want my son i am not struggling with addiction or have a criminal record

Answer:  www.tribal-institute.org/lists/state_guidelines;
Issue 1:    My fiancé is in jail facing prison time he has a son whom he left in my care in his home on the reservation his aunt filed for custody of my stepson and won citing that I was not a tribal member and therefore did not qualify as a suitable guardian. Answer:  The father would have had to file guardianship papers prior to going to jail and because the couple are not married the next of kin from tribal law has priority over the child and the tribal court have the final authority over where the child will be placed.
Issue 2:    My stepson is not a registered tribal member and I will be marrying his father soon. Answer:  If the child was born to one member of the tribal or both member of the tribe his registration is inconsequential, and because the marriage has not occurred then the couple are seen as two single individuals planning to get married.
Issue 3:    my son currently lives off reservation with his aunt now are there jurisdiction issues? Answer: Where the child lives is irrelevant because the aunt has custody and can move the child.
Issue 4:    Can I petition the court in his aunts’ area to be heard?  Answer: No because of the jurisdiction where the courts ruled have no authority to contradict the ruling. The individual would need to return to the court of origin and request another hearing, presenting new evidence to support reason why this individual would be a better guardian.
Issue 5:    Do I have any kind of legal legs to stand on? I want my son I am not struggling with addiction or have a criminal record Answer: The biological parents and blood relative would have to agree to allow the things that are being requested.
Rule:     Indian Child Welfare Act 1978
Conclusion:     It does not appear that this individual has any legal standing.
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