§ 27-19.1-02 — Jurisdiction over custody proceedings

North Dakota § 27-19.1-02

• Jurisdiction: North Dakota
• Title 27: Judicial Branch of Government
• Ch. 27-19.1: Indian Child Welfare

Text

1. This chapter includes requirements that apply if an Indian child is the subject of:
a. A child custody proceeding, including:
(1) An involuntary proceeding;
(2) A voluntary proceeding that could prohibit the parent or Indian custodian
from regaining custody of the Indian child upon demand; and
(3) A proceeding involving status offenses if any part of the proceeding results
in the need for out-of-home placement of the child, including a foster care,
preadoptive or adoptive placement, or termination of parental rights.
b. An emergency proceeding.
2. This chapter does not apply to:
a. A tribal court proceeding;
b. A proceeding regarding a delinquent act;
c. An award of custody of the Indian child to one of the parents, including an award
in a divorce proceeding; or
d. A voluntary placement that either parent, both parents, or the Indian custodian
has, of his or her or their free will, without a threat of removal by a state agency,
chosen for the Indian child and that does not operate to prohibit the Indian child's
parent or Indian custodian from regaining custody of the Indian child upon
demand.
3. If a proceeding under subsection 1 concerns an Indian child, this chapter applies to
that proceeding. In determining whether this chapter applies to a proceeding, the state
court may not consider factors such as the participation of a parent or the Indian child
in tribal cultural, social, religious, or political activities; the relationship between the
Indian child and the Indian child's parent; whether the parent ever had custody of the
Indian child; or the Indian child's blood quantum.
4. If this chapter applies at the commencement of a proceeding, this chapter does not
cease to apply solely because the Indian child reaches age eighteen during the
pendency of the proceeding.
5. An Indian tribe has exclusive jurisdiction over an Indian child custody proceeding
involving an Indian child who resides or is domiciled within the reservation of the tribe,
except if that jurisdiction is otherwise vested in the state by federal law. If an Indian
child is a ward of a tribal court, the Indian tribe retains exclusive jurisdiction regardless
of the residence or domicile of the Indian child.
6. In an Indian child custody proceeding under this chapter involving an Indian child who
is not residing or domiciled within the reservation of the Indian child's tribe, the court
assigned to exercise jurisdiction under this chapter, upon the petition of the Indian
child's parent, Indian custodian, or tribe, shall transfer the proceeding to the jurisdiction
of the tribe unless any of the following apply:
a. A parent of the Indian child objects to the transfer.
b. The Indian child's tribe does not have a tribal court, or the tribal court of the
Indian child's tribe declines jurisdiction.
c. The court determines good cause exists to deny the transfer. In determining
whether good cause exists to deny the transfer, the court may not consider any
perceived inadequacy of the tribal social services department or the tribal court of
the Indian child's tribe. The court may determine good cause exists to deny the
transfer only if the person opposing the transfer shows by clear and convincing
evidence the evidence or testimony necessary to decide the case cannot be
presented in tribal court without undue hardship to the parties or the witnesses

and that the tribal court is unable to mitigate the hardship by making
arrangements to receive the evidence or testimony by use of telephone or live
audiovisual means, by hearing the evidence or testimony at a location that is
convenient to the parties and witnesses, or by use of other means permissible
under the tribal court's rules of evidence.
7. An Indian child's tribe may intervene at any point in an Indian child custody
proceeding.
8. The state shall give full faith and credit to the public acts, records, and judicial
proceedings of an Indian tribe which are applicable to an Indian child custody
proceeding to the same extent that the state gives full faith and credit to the public
acts, records, and judicial proceedings of any other governmental entity.