By: James C. McTurnan
If your Colorado 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 Colorado 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. Continue reading