Colorado Child Custody Cases and the Indian Child Welfare Act

By: James C. McTurnan

If your child custody case involves children of Native American decent, there could be more to your case than just the ins and outs of Colorado family law. The Indian Child Welfare Act of 1978 (ICWA), a federal statutory section, addresses the rights of Indian tribes with respect to custody determinations regarding Indian children. Under the ICWA, Indian tribes have an interest in the welfare of Indian children which is independent of the rights of that child’s parents. Though the ICWA does not apply in cases allocating parental responsibilities to a Native American child’s biological parents, it could be a factor if a non-biological parent seeks custody of a Native American child. In such cases, the ICWA gives tribes the ability to intervene in child custody proceedings and qualifying cases may be removed to tribal court.

When Congress enacted the ICWA, the Act sought to address the impact that the adoption of Native American children by non-tribal parents was having on Native American tribes. Although custody cases are generally guided by state law, Colorado courts must also follow federal law when it is applicable. The ICWA requires that Colorado courts inquire into whether the child in a custody case is of Native American descent and thereby subject to the Act. The Colorado Court of Appeals recently decided a case involving the ICWA, In re the Marriage of Stockwell, 17CA1482, which highlights the occasional tension between federal and state law which can complexity to a family law case.

The Stockwell case involved a parent who was not the biological parent of the child, but who was the legal parent of the child under Colorado state law. The parent was the legal father under Colorado law because he was married to the child’s mother and was therefore presumed to be the father. However, the parent did not qualify as a parent under the ICWA, which defines a parent as the biological parent of a Native American child or a Native American person who has lawfully adopted that child. Further complicating this case, under state law the matter was defined as an allocation of parental responsibilities between the legal parents of the child, while under the ICWA, the matter was defined as a foster care placement because the Native American child was placed with a non-parent, non-Native guardian.

In this case, the legal father of the child was initially made the primary residential parent in a Colorado allocation of parental responsibilities (custody) case. No inquiry was made into whether the child was an Indian child for purposes of the ICWA. However, the mother of the child challenged the District Court’s order on the basis that it violated the ICWA. Though the lower Court denied the challenge, the Colorado Court of Appeals set aside the order, and did so several years after the original custody order entered, based on the violation of the ICWA.

In general, a challenge to a court’s ruling in a family law case must made in a timely fashion, and subject to the limits of the Colorado Rules of Civil Procedure or Colorado Appellate Rules. However, this case was again unique because the challenge was brought under the ICWA, a federal law, and was a challenge to the jurisdiction of the Colorado state court to enters orders where federal law was not followed. Jurisdictional challenges may be raised at any time, and the Colorado Court of Appeals ruled that there was no time limit for this challenge under the ICWA.

When a case is subject to the ICWA, the Act requires that the tribe be provided notice of the proceeding and notice of the tribe’s right to intervene. Due process requires that the tribe receive copies of the initial pleadings, notice of any scheduled hearings, and be afforded an opportunity to respond. The ICWA then sets out further procedures for the process of the case.

Understanding the interplay between Colorado child custody laws and the ICWA is just one example of the finer point details involved in effectively navigating in the family law legal arena.