North Dakota Code 27-19.1-02 – Jurisdiction over custody proceedings
1. This chapter includes requirements that apply if an Indian child is the subject of:
Terms Used In North Dakota Code 27-19.1-02
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- following: when used by way of reference to a chapter or other part of a statute means the next preceding or next following chapter or other part. See North Dakota Code 1-01-49
- 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.
- Person: means an individual, organization, government, political subdivision, or government agency or instrumentality. See North Dakota Code 1-01-49
- State: when applied to the different parts of the United States, includes the District of Columbia and the territories. See North Dakota Code 1-01-49
- Testimony: Evidence presented orally by witnesses during trials or before grand juries.
a. A child custody proceeding, including: (1) An involuntary proceeding; and
(2) A voluntary proceeding that could prohibit the parent or Indian custodian from regaining custody of the Indian child upon demand; b. An emergency proceeding other than: (1) A tribal court proceeding; or
(2) 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.
2. 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.
3. 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.
4. 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 either of the following applies:
a. A parent of the Indian child objects to the transfer.
b. 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.
5. 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.
6. An Indian child’s tribe may intervene at any point in an Indian child custody proceeding.
7. 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.