I gave guardianship of my daughter (Am. Indian) to her half-sister, and now I'm (Am. Indian) in the position to get my child back. When we originally went to court it was handled as a ICWA case. The research I've done states that once a Am. Indian parent is deemed fit, the judge has to immediately return custody being the best interest of child (U.S. Code Title 25 -Indian chapter 21- s1916.a). Am I reading & understanding it correct?
Family Law Attorney
It is difficult to answer this question without reviewing your actual guardianshp orders. While this may have been handled as an ICWA case, the child stayed within the tribe by being with her half sister and it does not appear that there is any attempt to place her outside of the tribe. As such, you are no longer dealing with ICWA, but with general guardiaship law, which also states that when a parent is fit, that parent can regain custody. I believe you simply need to file a petition or motion to terminate the existing guardianship and prove your fitness to the court to regain custody. However, to be absolutely sure, you should seek a consultation with an attorney in your area and have your court paperwork reviewed.
Responses are for general information purposes only, and are based on the extremely limited facts given. A consultation with an attorney experienced in the area of law(s) indicated in the question is highly recommended. Information and advice given here should not be relied upon for any final action or decision, as the information is limited by its nature to the question asked and the fact(s) presented in that question. THIS RESPONSE DOES NOT CREATE AN ATTORNEY/CLIENT RELATIONSHIP, particularly considering that the names of the parties are unknown.
Family Law Attorney
ICWA is a federal law. The purpose of ICWA is to assure that if a child who is a member of a tribe or eligible to be a member, or who has parents who are members or are eligible to be members are involved in a state dependency proceeding, the tribe itself has the opportunity to assert jurisdiction, remove the case from the state court, and have it heard in a tribal court and handled under tribal law. It does not mean that the child will be returned to the parent unless the parent does what the parent needs to do, just as the parent would have to do in state court. It was designed because so many children were removed from tribes and taught non-native ways, especially in the thirties. I have handled a number of ICWA cases, and have never had a tribe assert jurisdiction, but I am in central Florida. It would be likely that the tribe would assert jurisdiction in cases where the child or the child's family had truly been involved with the tribe at some point in their life, not where the connection was tenuous, long-broken, or very distant. Nevada might well be a state where ICWA more often comes into play. If the state court retains jurisdiction, the state also needs to return the child to the parent when the parent has completed the tasks necessary to show that it is safe to do so. A lot of state courts don't deal with ICWA very much, so you should get an attorney who deals with it to assist you in this matter, as well as guardianships in the state of Nevada. It sounds however as if the court originally dealt with the ICWA issue and determined that the tribe did not want to take jurisdiction.
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Administrative Law Lawyer
You need to consult with an attorney with a background in "Indian Child Welfare Act" law. The actual terms of the statute may not actually be what is followed in practice. You may believe that you are now in position to care for and support your child, however there may be specific requirements that must be met. You should go back to the court that originally granted the guardianship for assistance in finding an attorney with this type of experience.
This advice is not a substitute for a thorough evaluation of all of the facts of your case by family law or probate attorney who has experience with the ICWA in your community.
Native American Law Attorney
You need to petition the Nevada State Court or the Court where the action was originally brought to obtain custody. Start by talking to your half-sister and ask if she is opposed to returning your daughter. Even if she is opposed, you should contact tribal social services and ask them to intervene on your behalf. If your tribe has a judicial system you may be able to proceed through the tribal justice system to get your rights restored. But nothing is automatic, it all starts with a petition. Please try and find an attorney knowledgeable in Indian law to assist you and good luck.
This is not intended as legal advice. It is only provided for educational purposes and cannot be relied upon as legal advice. Further no attorney client relationship is or has been formed by answering this question.
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