I moved to California Dec 2009 for a work opportunity that opened up. I also fled a domestic violence situation. My husband has never lived with me or child nor has he paid any kind of support towards child and myself. From what research I did and asking around inside the tribe *child is indian himself*, the tribe has no jurisdiction because we have not lived within the boundaries of the reservation for well over 9 months. I went back to school over the summer and moved when that work apprenticeship was lost. The father initially agreed to give me custody last summer when he petitioned for a legal separation and visitation. That case was dismissed. He then filed for divorce after he lost a restraining order hearing that I brought against him last October. I filed for legal separation in Napa County, CA and he was served. I have never been served. My attorney (former) in Montana accepted papers without telling me. He is now bad mouthing me. Our home is here. I filed for temporary custody March 8th. He was served and given notice that temporary custody and supervised visitation was granted to him March 11th. I was given the custody in an ex parte hearing March 10th. I'm told against all odds, everything works against me because of the tribe having jurisdiction. All my research from the tribal codes in Montana states that they don't have jurisidiction. I have no place to stay, no money, no way to support my son if I return to Montana and the simple fact I've been denied an interpreter constantly over there on the reservation. I get so much better and easier access to deaf services here where I am.

There is a court hearing today at 830 AM (Wed. April 7th) for this. Another question I have is if I am denied jurisdiction, how and where do I file an appeal? I cannot afford an attorney. I have done this myself using forms I found online at the Superior Court in Napa County.

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Originally Posted by mollyjoebender

There is a court hearing today at 830 AM (Wed. April 7th) for this. Another question I have is if I am denied jurisdiction, how and where do I file an appeal? I cannot afford an attorney. I have done this myself using forms I found online at the Superior Court in Napa County.

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Filing an appeal is costly and you most likely need an attorney to do so. There is no guarantee that they will allow you to keep the case where you want it; they will send the case to what the court deems is the most appropriate venue.

If they do order a change of venue, you can always request to be allowed to appear by telephone or by video. It's much easier than having to travel constantly back and forth.

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Originally Posted by mollyjoebender

There is a court hearing today at 830 AM (Wed. April 7th) for this. Another question I have is if I am denied jurisdiction, how and where do I file an appeal? I cannot afford an attorney. I have done this myself using forms I found online at the Superior Court in Napa County.

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From what you posted, it is not clear whether the child's father has entered an appearance in the California case which is being heard right now, apparently. If he doesn't appear (through an attorney, preferably), I suspect the court will be reluctant to do something like dismiss your case on jurisdictional grounds. As a matter of fact, this statute, which I believe is pertinent, doesn't appear to require custody to be litigated in Montana. Especially, if as you say, the tribal code doesn't either.

A few questions, when and if you update us after the hearing:

When and where was the child born?

Did you take the child from Montana to California? When?

And, of course, what happened at the hearing?

Child was born 6-7-08 and was born in Polson, MT

I moved to California in December 2009.

The hearing was postponed two more months... for more research. The tribal judge admitted that he has never been in this situation before where one member was NOT tribal, namely me. He even admitted that the tribal codes ONLY apply IF both parents resided ON the reservation. We don't reside on the reservation. I moved for work. No support from father/my husband.

The judge told me he needed more time, the attorney that I did hire to help me has told me twice already it doesn't look good. She is willing to try though. So as long as she's willing, I guess that's a good sign. I won't give up. I encourage father/son relationship - just needs to build that.

From what I understand, briefs have to be filed all around both Montana and California. Then another hearing to DECIDE jurisdiction is on May 26th at 230 pm California time.

Again, no visitation was even asked by the father or his attorney. This is what gets me. He was offered supervised in the ex parte hearing. Father only showed up by phone. I'm deaf, so I seriously consider or wonder if phone is even feasible. I am willing to try though. I don't want to drag this out any more than they do. Just concerned for my son's well being. That's all and my safety and my husband's safety.

I know I intend to appeal if I get a UNfavorable outcome. I am doing research right now. I will not have an attorney helping me with that but then, I've been surprised before so I'll leave it up to the powers above me.

Thank you for your answer. Much appreciated.

The ICWA and the UUJCA (Uniform something, lol) was brought up. I'm told ICWA doesn't apply but the UU something might. In the tribal codes within the reservation in Montana it states -3-2-103. Jurisdiction. The Tribal Court shall have jurisdiction over any child custody proceeding involving an Indian child residing or domiciled within the Flathead Reservation or having significant contacts with the Reservation community and over all Indian children who are members of the Confederated Salish and Kootenai Tribes. The Court shall have the exclusive jurisdiction over all child custody proceedings involving any Indian child who is a Tribal member of the Confederated Salish and Kootenai Tribes who resides or is domiciled within the Flathead Reservation or is a protected child of the Tribes.

The child does not have significant contacts on the rez. No help from the tribes other than his per capita check. His grandparents were not very involved. I am going to continue to encourage their involvement but this I think is getting a bit extreme? That family has NOW not seen the child for 10 months. By the time May rolls around, it would have been ALMOST a year.

And yes the child's father has responded to my motion for legal separation. It is in the court records here in California. I'm told by tribal court that HE filed an amended petition March 8th. I filed my papers Dec 28th. I got copies of his responses and motions but those copies had no time stamp on them which means they were not stamped with a file or endorsed stamp before it was sent to me. I know it is now in the court system.

From what Im reading the courts in MT have jurisdiction. Since your move to California wasn't long enough to become a resident of the state. It can and should be thrown out on that alone. Also according to Indian law that was posted they have jurisdiction. When you signed into the California court system you gave up your child to the courts weather you realize it or not and there is provision in the Indian Law that addresses that.

Thank you for your response. ICWA has no application on that. It does not apply. UUCJA might. The tribal courts even admitted that they have NOT been in this situation because their laws are written for those ON the rez. And for members, not non members. I will continue to research.

Right now you have 2 strikes against you.

1) Exclusive tribal jurisdiction
Under ICWA, an Indian tribe has complete jurisdiction over an Indian child who resides or is domiciled within the tribe's land. The Indian tribal courts also have exclusive jurisdiction over Indian children wards of the court.[1]


2) you hadn't met the 6 month requirement for residency in California.

My son is not a ward. He doesn't even live on the rez anywhere. Hasn't for nearly a year. I was told 3 months was the requirement for legal separation I've met that. By the time court rolls around, there's a week left to the residency requirement. I know for a fact ICWA doesn't apply. I do now after today's hearing and after discussion. UUCJA is now the question. Thank you again for your answer.

You need to read the things you have been signing. Your son IS a ward of the state until it is decided by the courts otherwise. That IS one of the papers you signed when you signed onto the California court system. If he were not then they would have no jurisdiction to remove him from one to give to another. Read it and you will find its in the early paperwork.

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Originally Posted by califdadof3

1) Exclusive tribal jurisdiction
Under ICWA, an Indian tribe has complete jurisdiction over an Indian child...

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I don't think so.

I believe you are referring to this from the ICWA:

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§ 1911. Indian tribe jurisdiction over Indian child custody proceedings
(a) Exclusive jurisdiction
An Indian tribe shall have jurisdiction exclusive as to any State over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe, except where such jurisdiction is otherwise vested in the State by existing Federal law. Where an Indian child is a ward of a tribal court, the Indian tribe shall retain exclusive jurisdiction, notwithstanding the residence or domicile of the child …

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However note the definition of "child custody proceeding"
§ 1903. Definitions

For the purposes of this chapter, except as may be specifically provided otherwise, the term—

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(1) “child custody proceeding” shall mean and include—
(I) “foster care placement” which shall mean any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated;
(ii) “termination of parental rights” which shall mean any action resulting in the termination of the parent-child relationship;
(iii) “preadoptive placement” which shall mean the temporary placement of an Indian child in a foster home or institution after the termination of parental rights, but prior to or in lieu of adoptive placement; and
(iv) “adoptive placement” which shall mean the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption.

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The California proceeding is none of those things.