A.
In all actions involving dispute over custody, the Tribal Court shall
have the authority to determine the custody of any child less than
18 years of age. The Court shall make its determination based upon
the Wa Në Mnopmadzet.
B.
The Tribal Court shall enter the orders and judgments it considers
just and proper concerning care and custody of the children of the
parties, including orders and judgments awarding joint legal custody
or sole legal custody, and joint physical custody or sole physical
custody, until each child has attained the age of 18 years.
C.
When custody of any child is contested, the Tribal Court may interview
the child privately to determine if the child is of sufficient maturity
to express a preference regarding custody. If so, the judge shall
consider the reasonable preference of the child and the information
received from the interview as a factor in determining the child's
best interests. A record shall be made of such interview and sealed
pending any review by the Court of Appeals.
D.
Each party has a continuing duty to inform the Tribal Court of any
other proceeding that could affect any award of custody of any child
under this code.
In custody disputes between parents, the Tribal Court shall
advise the parents of joint legal custody and joint physical custody.
The Tribal Court shall order joint legal custody and joint physical
custody of a child to both parents unless the Court determines that
joint custody is not in the Wa Në Mnopmadzet. The Court shall
state on the record the reasons for granting or denying a request
for joint custody.
The Tribal Court shall order sole legal custody and sole physical
custody of a child to a parent only if the Court determines that joint
custody is not in the Wa Në Mnopmadzet. The Court shall state
on the record the reasons for granting a request for sole custody.
A.
In all actions involving any dispute over custody, the Tribal Court
shall declare the child's inherent rights and establish the rights
and duties as to the parenting time in accordance with this code.
B.
Parenting time shall be granted in accordance with the Wa Në
Mnopmadzet. It is presumed to be in the Wa Në Mnopmadzet for
the child to have a strong relationship with both parents. Except
as otherwise provided in this section, parenting time shall be granted
to a parent in a frequency, duration, and type reasonably calculated
to promote a strong relationship between the child and the parent
granted parenting time.
C.
If the parents agree on parenting time terms, the Tribal Court shall
order the parenting time terms unless it determines on the record
by clear and convincing evidence that the parenting time terms are
not in the Wa Në Mnopmadzet.
D.
A child has a right to parenting time with a parent unless it is
shown on the record by clear and convincing evidence that it would
endanger the child's physical, mental, or emotional health.
E.
The Tribal Court may consider the following factors when determining
the frequency, duration and type of parenting time to be granted:
(1)
The existence of any special circumstances or needs of the child;
(2)
Whether the child receives substantial nutrition through nursing;
(3)
The reasonable likelihood of abuse or neglect of the child during
parenting time;
(4)
The reasonable likelihood of abuse of a parent resulting from the
exercise of parenting time;
(5)
The inconvenience to, and burdensome impact or effect on, the child
of traveling for purposes of parenting time;
(6)
Whether a parent can reasonably be expected to exercise parenting
time in accordance with the Tribal Court order;
(7)
Whether a parent has frequently failed to exercise reasonable parenting
time;
(8)
The threatened or actual detention of the child with the intent to
retain or conceal the child from the other parent or from a third
person who has custody, provided that a custodial parent's temporary
residence with the child in a domestic violence shelter shall not
be construed as evidence of the custodial parent's intent to
retain or conceal the child from the other parent;
(9)
The child's participation in religious or cultural activities
with either parent; and
(10)
Any other relevant factors.
F.
Parenting time shall be granted in specific terms if requested by
either party at any time.
G.
A parenting time order may contain any reasonable terms or conditions
that facilitate the orderly and meaningful exercise of parenting time
by a parent, including without limitation, one or more of the following:
(1)
Division of the responsibility to transport the child;
(2)
Division of the cost of transporting the child;
(3)
Restrictions on the presence of any third person during parenting
time;
(4)
Requirements that the child be ready for parenting time at a specific
time;
(5)
Requirements that the parent arrive for parenting time, and return
the child from parenting time, at specific times;
(6)
Requirements that parenting time occur in the presence of a third
person or agency;
(7)
Requirements that a party posts a bond to assure compliance with
a parenting time order;
(8)
Requirements of reasonable notice when parenting time will not occur;
and
(9)
Any other reasonable condition determined to be appropriate in the
particular case.
H.
Except as provided in this subsection, a parenting time order shall
contain a prohibition on exercising parenting time in a country that
is not a party to the Hague Convention on the Civil Aspects of International
Child Abduction, provided that this subsection does not apply if both
parents provide the Tribal Court with written consent to allow a parent
to exercise parenting time in a country that is not a party to the
Hague Convention on the Civil Aspects of International Child Abduction.
I.
During the time a child is with a parent to whom parenting time has
been awarded, that parent shall decide all routine matters concerning
the child.
J.
Upon motion, the Tribal Court shall consider, and may award reasonable
grandparenting time to maternal or paternal grandparents and, if denied,
shall make a record of the denial.
K.
In determining holiday schedules for parenting time, the Tribal Court
shall reasonably include all holidays and cultural ceremonies or events
that each parent observes, including but not limited to tribally recognized
holidays and ceremonies. The Tribal Court will coordinate with the
parents to accommodate for holidays and cultural ceremonies or events
that do not occur on a set date each year, such as requiring a parent
to notify the other parent within a certain period of time once a
date is known.
A.
Any child whose custody is governed by Tribal Court order has, for
the purposes of this section, a legal residence with each parent.
Except as otherwise provided in this section, a parent of any child
whose custody is governed by Tribal Court order shall not change a
legal residence of the child to a location that is more than 100 miles
from the child's legal residence at the time of filing of the
complaint or subsequent motions resulting in an order modifying custody,
parenting time, or domicile.
B.
Subsection A does not apply if:
(1)
The other parent consents to the residence change and the Tribal
Court enters an order in permitting the residence change;
(3)
The Tribal Court order governing the custody grants sole legal custody
and sole physical custody to one of the parents, provided that parent
still provides notice of the residence change to the other parent
and Tribal Court;
(4)
At the time of the commencement of the action in which the custody
order is issued, the child's two residences were more than 100
miles apart; or
(5)
The legal residence change results in the child's two legal
residences being closer to each other than before the change.
C.
Before permitting a legal residence change otherwise restricted by Subsection A, the Tribal Court shall consider each of the following factors, with the child as the primary focus in the deliberations:
(1)
Whether the legal residence change has the capacity to improve the
quality of life for both the child and the relocating parent;
(2)
The degree to which the legal residence change will affect the child's
connection to their tribal culture or participation in cultural events;
(3)
The degree to which each parent has complied with, and utilized their
time under, a court order governing parenting time with the child,
and whether the parent's plan to change the child's legal
residence is inspired by that parent's desire to defeat or frustrate
the parenting time schedule;
(4)
The degree to which the Tribal Court is satisfied that, if it permits
the legal residence change, it is possible to order a modification
of the parenting time schedule and other arrangements governing the
child's schedule in a manner that can provide an adequate basis
for preserving and fostering the parental relationship between the
child and each parent; and whether each parent is likely to comply
with the modification;
(5)
The extent to which the parent opposing the legal residence change
is motivated by a desire to secure a financial advantage with respect
to a support obligation;
(6)
Domestic violence, regardless of whether the violence was directed
against or witnessed by the child.
D.
Each Tribal Court order determining or amending custody or parenting
time of any child shall include a provision stating the parent's
agreement as to how a change in either of the child's legal residences
will be handled. If such a provision is included in the order and
the child's legal residence change is done in compliance with
that provision, this section shall not apply. If the parents do not
agree on such a provision, the Tribal Court shall include in the order
the following provision: "A parent whose custody or parenting time
of a child is governed by this order shall not change the legal residence
of the child except in compliance with this code."
E.
If this section applies to a change of child's legal residence,
and the parent seeking to change that legal residence needs to seek
a safe location from the threat of domestic violence, the parent may
move to such a location with the child until the Tribal Court makes
a determination under this section.
A.
After entry of a judgment of divorce and on the motion of either
parent, the Tribal Court may modify the custody of some or all of
the children, as the circumstances of the parents and the benefit
of the children require, subject to the requirements of this section.
B.
The Tribal Court may modify custody provisions of an existing judgment
of divorce or orders upon a showing of proper cause or changed circumstances.
The Tribal Court shall not modify the custody provisions of a judgment
of divorce or order so as to change the established custodial environment
of a child unless there is presented clear and convincing evidence
that it is in the Wa Në Mnopmadzet. The established custodial
environment of a child is determined if over an appreciable time the
child naturally looks to the custodian in that environment for guidance,
discipline, the necessities of life, and parental comfort. The age
of the child, the physical environment, and the inclination of the
child and the parent seeking the change as to permanency of the relationship
shall also be considered.
C.
If a motion to amend a judgment of divorce with respect to custody
is filed during the time a parent is in active military duty, the
Tribal Court shall not enter an order amending the judgment, or issue
a new order, that changes the child's placement that existed
on the date the parent was called to active military duty, except
the Tribal Court may enter a temporary custody order if there is clear
and convincing evidence that it is in the Wa Në Mnopmadzet. Upon
a parent's return from active military duty, the Tribal Court
shall reinstate the custody order in effect immediately before that
period of active military duty. If a motion for change of custody
is filed after a parent returns from active military duty, the Tribal
Court shall not consider a parent's absence due to that active
military duty in a Wa Në Mnopmadzet determination.
