Montana Code 41-3-1310. Jurisdiction — transfer of jurisdiction
41-3-1310. (Temporary) Jurisdiction — transfer of jurisdiction. (1) An Indian tribe has exclusive jurisdiction over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of that tribe unless:
Terms Used In Montana Code 41-3-1310
- Best interests of the child: means the physical, mental, and psychological conditions and needs of the child and any other factor considered by the court to be relevant to the child. See Montana Code 41-3-102
- Child custody proceeding: means any state or private proceeding, other than an emergency proceeding, that may culminate in a foster care placement, termination of parental rights, preadoptive placement, or adoptive placement. See Montana Code 41-3-1303
- Indian: means a person who is a member of an Indian tribe or who is an Alaska Native and a member of a regional corporation as established in 43 U. See Montana Code 41-3-1303
- Indian child: means an unmarried Indian person who is under 18 years of age and who is:
(a)a member of an Indian tribe; or
(b)eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe. See Montana Code 41-3-1303
- Indian custodian: means an Indian person who under tribal law, tribal custom, or state law has legal or temporary physical custody of an Indian child or to whom the parent has transferred temporary care, physical custody, and control of the Indian child. See Montana Code 41-3-1303
- Indian tribe: has the meaning provided in 41-3-1303. See Montana Code 41-3-102
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Parent: means a biological parent of an Indian child or an individual who has lawfully adopted an Indian child, including adoptions made as tribal customary adoptions. See Montana Code 41-3-1303
- Pleadings: Written statements of the parties in a civil case of their positions. In the federal courts, the principal pleadings are the complaint and the answer.
- Public defender: Represent defendants who can't afford an attorney in criminal matters.
- Public law: A public bill or joint resolution that has passed both chambers and been enacted into law. Public laws have general applicability nationwide.
- State: when applied to the different parts of the United States, includes the District of Columbia and the territories. See Montana Code 1-1-201
- Tribal court: means a court or body vested by an Indian tribe with jurisdiction over child custody proceedings. See Montana Code 41-3-1303
- tribe: means any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services provided to Indians by the secretary of the interior because of their status as Indians. See Montana Code 41-3-1303
- Writing: includes printing. See Montana Code 1-1-203
(a)the tribe has consented to the state‘s concurrent jurisdiction pursuant to Public Law 280 or 25 U.S.C. § 1919;
(b)the tribe has expressly declined to exercise its exclusive jurisdiction; or
(c)the state is exercising emergency jurisdiction in compliance with 41-3-1325.
(2)If an Indian child is already a ward of a tribal court at the start of the child custody proceeding, the Indian tribe may retain exclusive jurisdiction regardless of the residence or domicile of the child.
(3)Except as provided in subsection (5), in a child custody proceeding involving an Indian child who is not residing or domiciled within the reservation of the Indian child’s tribe, the court shall, in the absence of good cause to the contrary, transfer the proceeding to the jurisdiction of the Indian child’s tribe on the motion of any of the following:
(a)either of the Indian child’s parents;
(b)the Indian child’s Indian custodian; or
(c)the Indian child’s tribe.
(4)If the Indian child’s tribe has not formally intervened, the moving party shall serve a copy of the motion and all supporting documents on the tribal court to which the moving party seeks transfer.
(5)If either of the Indian child’s parents objects to transfer of the proceeding to the Indian child’s tribe, the court may not transfer the proceeding.
(6)(a) If a state court believes or any party asserts that good cause to deny transfer exists, the reasons for that belief or assertion must be provided orally or in writing on the record and to the parties to the child custody proceeding. Any party to the child custody proceeding must have the opportunity to provide the court with the reasons that good cause exists to deny transfer of the proceeding.
(b)In determining whether good cause exists, the court may not consider:
(i)whether the child custody proceeding is at an advanced stage;
(ii)whether there have been prior proceedings involving the child for which no petition to transfer was filed;
(iii)whether transfer could affect the placement of the child;
(iv)the child’s cultural connections with the tribe or its reservation; or
(v)socioeconomic conditions or any negative perception of the tribal or bureau of Indian affairs social services or judicial systems.
(c)If the court denies transfer of jurisdiction, the court shall state its reasons for the denial orally on the record or in a written order.
(7)(a) Following entry of an order transferring jurisdiction to the Indian child’s tribe and pending receipt of a tribal court order accepting jurisdiction, the state court:
(i)may conduct additional hearings and enter orders that are in the best interests of the child and strictly comply with the requirements of the federal Indian Child Welfare Act and this part; and
(ii)may not enter a final order in a child custody proceeding, except an order dismissing the proceeding and returning the Indian child to the care of the parent or Indian custodian from whose care the child was removed.
(b)On receipt of an order from a tribal court accepting jurisdiction, the court shall:
(i)dismiss the child custody proceeding with prejudice; and
(ii)expeditiously provide the tribal court with all records related to the proceeding, including but not limited to the pleadings and any court record. The state court shall work with the tribal court to ensure the transfer of the custody of the Indian child and the proceeding is accomplished smoothly and in a way that minimizes the disruption of services to the family.
(8)If the Indian child’s tribe accepts jurisdiction, the state court shall enter an order relieving the office of the state public defender and any public defender assigned pursuant to 41-3-425 and 47-1-104 from further representation.
(9)If the Indian child’s tribe declines jurisdiction, the state court shall enter an order vacating the order transferring jurisdiction and proceed with adjudication of the child custody proceeding in compliance with the federal Indian Child Welfare Act, this part, and any applicable state-tribal agreement. (Terminates June 30, 2025–sec. 55, Ch. 716, L. 2023.)