My child is half Native American and we are both enrolled members of an Indian tribe in Arizona. My child's father and I have a parenting plan in affect from the State of Wisconsin, however, we no longer reside in Wisconsin. Our child, myself, and the father currently reside in the Seattle area that is not on any Indian reservation. My child's father has is requesting to modify the current parenting plan. The ICWA was not involved in our previous case, and I would like to know if I can use that to help my case as far as child custody and child placement.
ICWA would only apply if the child had no suitable placement. Major modifications are a big deal - courts are loathe to make changes to custodial placements. There are a couple of things to consider, first whether you have been here long enough to request a WA court to assert jurisdiction. Second, whether or not the moving party can demonstrate "adequate cause " , which is a huge uphill battle in which the moving party (your child's father) needs to demonstrate that there has been such a substantial change of circumstances in YOUR life that it is better to remove the child. The sorts of things that will trigger a major mod is a serious drug/alcohol addiction, or that you are in prison for a substantial period of time (getting arrested is probably not enough) or that a new adult person in your household is a documented child molester. Those sorts of facts will get placement changed.
What you need to go discuss with a local, well-regarded family law attorney is whether or not this mod is appropriate in WI or WA. Can't say. If you fled with the child, and he's trying to get you to go back, you may have to go back. Elizabeth Powell
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I believe I read another post you listed here which indicated that you have lived with the child in WA for about a year, and the father has lived here for about 8 months.
ICWA applies in adoption cases, or where t here is no suitable placement for the child with its natural parents. The intent of ICWA is to allow Native American children the opportunity to retain their heritage by being placed with Native American families (as opposed to placement with non Native families as has historically happened).
As far as placement/custody now, if the child has been placed with you as the custodial parent, under WA law, there will have to be significant change in circumstances for placement to be changed. It appears (from your other post) that WA would have jurisdiction as the child's new "home state," but you will want to respond to any action coming out of WI to avoid having a default judgment entered against you.
I would recommend talking to at least a WA attorney, if not a WI attorney as well, so you can make sure you handle this unusual situation in the best manner possible.
Best of luck
Your question involves the ICWA (regarding custody of Indian Children), tribal courts, modification of a parenting plan, interstate jurisdiction, and the Uniform Child Custody Jurisdiction and Enforcement Act. Too complicated for an answer here. Schedule a free 1/2 hour consult with an experienced family attorney.See my AVVO Answers and Legal Guides on parenting plans, modification, and interstate child custody for more information about the legal issues raised by your inquiry. Please keep in mind that although my AVVO Answers and Legal Guides are often informative, they are no substitute for legal advice from an attorney you have retained for consultation or representation. There are always exceptions to the general rules. To find my Answers and Legal Guides, click on my photo. On my AVVO home page click on "Contributor Level - View Contributions" or scroll down further and click on "Contribution - Legal Guides" or “Answers.” Scroll down the list of my Legal Guides or do a topic search in my Answers and select those which are relevant to your question. If you like my Answers and Legal Guides, please make sure you mark them as “helpful” or “best answer”. Thanks in advance for your support. © Bruce Clement
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