§ 19-1.2-118 — Motion to transfer to tribal court - objection

Colorado § 19-1.2-118

• Jurisdiction: Colorado
• Title 19: Children's
• Art.: Colorado Indian Child Welfare Act

Text

(1) Except as
otherwise provided in subsection (5) of this section, the court shall transfer a child
custody proceeding brought pursuant to this article 1.2 that involves an Indian child
if, at any time during the proceeding, the Indian child's parent, Indian custodian, or
tribe petitions the court to transfer the proceeding to the tribal court, unless good
cause is shown to deny the transfer.

(2) Upon receipt of a transfer motion, the court shall contact the Indian
child's tribe and request a timely response regarding whether the tribe intends to
decline the transfer.

(3) (a) If a party objects in writing to the transfer motion, the court shall set a
hearing on the objections to the motion. In determining whether there is good cause
to deny transfer of jurisdiction to a tribal court, the court shall engage in a fact-specific inquiry, determined on a case-by-case basis as set forth in subsection (4) of
this section.

(b) At the hearing, the objecting party has the burden of proof of
establishing by clear and convincing evidence that good cause exists to deny the
transfer.

(c) If the Indian child's tribe contests the assertion that good cause exists to
deny the transfer, the court shall give the tribe's argument substantial weight.

(d) When making a determination whether good cause exists to deny the
transfer motion, the court must not consider:

(I) Whether the proceeding is at an advanced stage;

(II) Whether there has been a prior proceeding involving the Indian child in
which a transfer motion was not filed;

(III) Whether the transfer could affect the placement of the Indian child;

(IV) The Indian child's cultural connections with the tribe or the tribe's
reservation;

(V) The socioeconomic conditions of the Indian child's tribe or any negative
perception of the tribe's or the federal bureau of Indian affairs's social services or
judicial systems; or

(VI) Whether the transfer serves the best interests of the Indian child.

(4) Absent extraordinary circumstances, good cause to deny transfer to a
tribal court must be based on one or both of the following factors:

(a) The Indian child's tribe does not have a tribal court or any other
administrative body that is vested with authority over child custody proceedings to
which the case can be transferred, and no other tribal court has been designated by
the Indian child's tribe to hear child custody proceedings; or

(b) The evidence necessary to decide the case could not be adequately
presented in the tribal court without undue hardship to the parties or the witnesses,
and the tribal court is unable to mitigate the hardship by any means permitted in
the tribal court's rules. Without evidence of undue hardship, travel distance alone is
not a basis for denying a transfer motion.

(5) (a) The court shall deny the transfer motion if:

(I) The tribe declines the transfer in writing or orally on the record;

(II) One of the Indian child's parents objects to the transfer; or

(III) After a hearing, the court finds by clear and convincing evidence that
good cause exists to deny the transfer.

(b) Notwithstanding subsection (5)(a)(II) of this section, the objection of the
Indian child's parent does not preclude the transfer if:

(I) The objecting parent dies or the objecting parent's parental rights are
terminated and have not been restored; and

(II) The Indian child's remaining parent, Indian custodian, or tribe files a new
transfer motion subsequent to the death or termination of parental rights of the
objecting parent.

(6) If the court denies a transfer motion pursuant to this section, the court
shall document the basis for the denial in a written order.

Legislative History

Source: L. 2025: Entire article added, (HB 25-1204), ch. 338, p. 1804, � 2, effective August 6.