LEGAL

Child Custody

American Indian and Alaska Native victims of intimate partner sexual violence often fear losing custody of their children if they leave their abuser.

They may also lack the independent resources necessary to feed, clothe, and safely shelter their children once they leave. It is not uncommon for an abuser to threaten to kill their partner and children if the victim leaves. Many abusers make threats to the victim as a means of maintaining power and control in the relationship. These are threats that we must take seriously.

The time of separation from an abusive partner carries with it a high risk of lethality. Trying to escape a home filled with domestic and sexual violence increases the risk of injury or death for a victim and her children. Safety planning and preparation can help a victim of IPV safely leave an abusive relationship while keeping her children safe and in her care.

What is the Parental Kidnapping Prevention Act (PKPA)?

Several years ago, parents involved in custody disputes shopped for a favorable court to issue child custody and visitation orders. Under this system, some parents kidnapped their children and moved to another jurisdiction to take advantage of favorable child custody laws. This practice was impractical for several reasons. First, it encouraged parents to kidnap their children, which had enormous, negative consequences on the well-being of the children. Secondly, it led to several different courts in different jurisdictions issuing inconsistent orders regarding the custody, visitation, or support of the children. Often, these states issued visitation and custody orders without the knowledge of one of the child's parents.

In response, the United States Congress passed the Parental Kidnapping Prevention Act (also known as PKPA or 28 U.S.C. § 1738A). The PKPA applies to all custody issues on American soil, whether these issues occur on tribal lands, in a Public Law 280 state, in the District of Columbia, or on American territories. 

How is the child's "home state" or "home jurisdiction" determined?

In accordance with PKPA, a child's home jurisdiction (referred to in the PKPA as the child's "home state") is given preference over all other jurisdictions for filing a custody order. A child's home jurisdiction can be a tribe, a state, the District of Columbia, or an American territory. For example, if a child is born and raised on White Mountain Apache Tribal lands, the White Mountain Apache Tribal court would have jurisdiction over the child's custody order.

State courts and other courts must give full faith and credit to child custody and child visitation orders issued by the child's home jurisdiction unless the child's home state has declined to exercise jurisdiction over the matter. The state must enforce and not modify any child custody and visitation orders issued by the child's home jurisdiction. For example, if the same White Mountain Apache child as above is the subject of a child custody order in White Mountain Apache tribal court, Arizona state courts must respect and enforce the Tribal court's order and cannot modify it.

Also, state courts must defer to the "exclusive continuing jurisdiction" of the child's home jurisdiction. In other words, only the child's home jurisdiction has the power to modify child custody and visitation orders. For example, if the same White Mountain Apache child as above is the subject of a child custody order in White Mountain Apache tribal court, only the White Mountain Apache Tribal Court has the power to change the details of the order.

Which parties are involved with the PKPA proceedings?

PKPA requires that the following parties have reasonable notice of the proceedings and opportunity to be heard:

    • Contestants (a person, including a parent, who claims a right to custody or visitation rights concerning a child);
    • Any parent whose parental rights have not faced termination; and,
    • Any person who has physical custody of the child.
How does the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA) relate to PKPA?

The PKPA answered a lot of questions and discouraged parents from kidnapping their children, but it was not perfect. Even after PKPA, there were a lot of ambiguities concerning jurisdiction over child custody and visitation orders. For example, what would happen if the child did not have a home jurisdiction or the child's home jurisdiction declined to exercise jurisdiction over the case? What happened if the child cut all ties with his or her home jurisdiction?

To answer these questions and ensure compliance with the strictures of PKPA, many states have enacted the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA). The UCCJEA is a uniform state law that was approved in 1997 by the National Conference of Commissioners on Uniform State Laws. Significantly, the UCCJEA is a state law that states have voluntarily chosen to enact. It does not modify or overrule the PKPA. Very few Tribal governments have chosen to adopt the UCCJEA. Thus, insofar as jurisdiction over custody disputes in Indian Country are concerned, the UCCJEA is likely not applicable, but these disputes are always subject to the requirements of PKPA. Further, because the UCCJEA is state-law-centric, a child's "home jurisdiction" is referred to as his or her "home state." As of 2016, every state except for Massachusetts has adopted the UCCJEA.

When does UCCJEA apply?

The UCCJEA applies when custody and visitation issues arise in proceedings for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection orders from domestic violence. The UCCJEA does not apply to child support proceedings or adoptions.

In accordance with PKPA, the UCCJEA gives a child's home state preference over all other possible forums. A child's home state is the jurisdiction in which the child lives as of the commencement of the proceedings, or is the state that was the child's home was within six months of the proceedings' start, and the child's parent continues to live in that state even if the child gets removed.

What if the child does not have a home state?

If the child does not have a home state or if the child's home state declines to exercise jurisdiction over the child's custody or visitation order, another state can assume jurisdiction over the child under "significant connection" jurisdiction or under "more appropriate forum" jurisdiction. A state can exercise authority under the "significant connection" doctrine if the child's home state has declined jurisdiction (or if the child does not have a home state), and the child has sufficient ties to the state. It is important to note that more than one jurisdiction can have a "significant connection" jurisdiction over a child custody case, and a child does not have to reside in a state or territory for it to have "significant connection" jurisdiction over him or her. The third type of jurisdiction exists under the UCCJEA when both the home state and significant connection state(s) decline jurisdiction in favor of another, more appropriate state on the grounds of inconvenient forum or unjustifiable conduct. This type of jurisdiction is also known as "more appropriate forum" jurisdiction.

Under PKPA, the original jurisdiction that issued the child custody or visitation order has exclusive, continuing jurisdiction to modify its decree unless:

    1. The court loses significant connection jurisdiction or 
    2. The child, the child's parents, and any person acting as the child's parent no longer live in the state. 

Only the court that issued the decree can determine whether it continues to have custody over the matter.

Is the Indian Child Welfare Act (ICWA) or PKPA affected by UCCJEA?

It is important to note that the Indian Child Welfare Act and the PKPA supersede any conflicting provisions of the UCCJEA. Furthermore, child custody proceedings in state courts that involve jurisdictional disputes between Tribes and states are governed by the UCCJEA only if the state jurisdiction has enacted optional sections 104(b) and (c) of the UCCJEA. Those of which require State courts to treat Tribes as if they were states and gives full faith and credit to Tribal court issued child custody and visitation orders.

TYPES OF CUSTODY

Legal terms vary greatly by jurisdiction. Possible custody arrangements generally fall under the following categories: 

  • Legal Custody

    A parent awarded legal custody of a child has the right to make critical decisions about where the child will go to school and attend church, what type of medical care the child will access, and the type of upbringing that the child will have.

  • Joint Legal Custody

    A parent awarded legal custody of a child has the right to make critical decisions about where the child will go to school and attend church, what type of medical care the child will access, and the type of upbringing that the child will have.

  • Sole Legal Custody

    A parent awarded sole legal custody is the only parent who has the power to make important legal decisions on the child’s upbringing.  Sole legal custody is normally awarded when the other parent is unfit in some way or is a danger to the child. Even if sole custody is awarded to a mother, a court may still award generous visitation to the other parent.

  • Physical Custody

    A parent awarded physical custody of a child has the rights and responsibilities of living in the same home as the child.

  • Joint Physical Custody

    Joint physical custody is typically awarded where both parents are actively involved in the parenting process and the child lives in both homes. Typically there is a schedule where the child will alternate weeks or days between the homes or will spend school and summer vacation with the other parent.

  • Sole Physical Custody

    When sole physical custody has been awarded, the child will live with only one of the parents.   Even if one parent has been awarded sole legal and physical custody of a child, the court may still order reasonable visitation for the non-custodial parent.

Contact NICCSA

4015 E. Paradise Falls Dr. Suite 131, Tucson, Arizona 85712

Phone: (520) 623-8192
Fax: (520) 623-8246

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*NICCSA is a project of the Southwest Center for Law and Policy (www.swclap.org) This project is supported by Grant No. 2017-SA-AX-K001, awarded by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, conclusions, and recommendations expressed in this publication/program/exhibition are those of the author(s) and do not necessarily reflect the views of the Department of Justice, Office on Violence Against Women.