questions & answers

Question: I'm just curious in case things go wrong. But I'm hispanic & a legal US citizen, my boyfriend is Native American & we have a a child together. From what I've heard from a friend is that by law since he's Native, that he can have full custody of our child. I want to know if this is true, because he's on probation & has a bad record and where he lives with his mom is not so safe for our baby since she smokes. So I'm wondering with that in the way, if I would have more of a right to keep the baby with me?

Answer: The Indian Child Welfare Act was created in 1901 to deal with issues of Native American children being taken from their homes and placed in non-Indian couple’s home; so Congress determined that special law was needed to govern Indian-child custody proceedings. The ICWA applies to adoption placements, pre-adoption placements, foster care placements, and also in the termination of certain parental rights. This law places exclusive jurisdiction over Indian children who live on Indian reservations, making state court’s jurisdiction over child custody extremely limited. However, if your child lives off the reservation, the state court may exercise jurisdiction over the custody hearing. In this case all evidence, such as his probation and record, will be taken in consideration to determine parental rights. Even with the state court having jurisdiction, depending on the tribal situation, your lawyer may still have to contact the father’s Indian Tribe and the Department of the Interior, making the case more complicated than the usual custody case. For more specific information on your case, please contact a lawyer.