Chapter 5.20
CHILD CUSTODY
Sections:
5.20.010 Child custody proceeding – Commencement – Notice of intervention.
5.20.020 Child custody – Relevant factors in awarding custody.
5.20.030 Child custody – Temporary custody order – Vacation of order.
5.20.040 Child custody – Visitation rights.
5.20.050 Child custody decree – Modification.
5.20.080 Modification of decree.
5.20.010 Child custody proceeding – Commencement – Notice of intervention.
A. A child custody proceeding is commenced in the Tribal Court:
1. By a parent:
a. By filing a petition for dissolution of marriage, legal separation, or declaration of invalidity;
b. By filing a petition seeking custody of the child in the Tribal Court where the child is permanently resident or within the Tribe’s jurisdiction where child is found or enrolled;
2. By a person other than a parent, by filing a petition seeking custody of the child in the Tribal Court where the child is permanently resident or in the Tribe’s jurisdiction where he or she is found or enrolled, but only if the child is not in the physical custody of one of its parents or if the petitioner alleges that neither parent is a suitable custodian.
B. Notice of a child custody proceeding shall be given to the child’s parent, guardian and custodian, who may appear and be heard and may file responsive pleadings. The Court may, upon a showing of good cause, permit the intervention of other interested parties. [Res. 2016-17; Res. 2011-020; Res. 2006-63; GC vote 7/9/1985. Prior code § 8.1.4.010.]
5.20.020 Child custody – Relevant factors in awarding custody.
The Court shall determine custody in accordance with the best interests of the child. The Court shall consider all relevant factors including:
A. The wishes of the child’s parent or parents as to his or her custody and as to visitation privileges;
B. The wishes of the child as to his or her custody and as to visitation privileges;
C. The interaction and interrelationship of the child with his or her parent or parents, his or her siblings, and any other person who may significantly affect the child’s best interests, including, but not limited to, the child’s extended family;
D. The child’s adjustment to his home, school and community;
E. Availability of extended family to assist in the care and custody of the child;
F. The mental and physical health of all individuals involved shall be assessed, at the Court’s discretion. Any mental health assessment shall be by a family therapist with expertise working with Court-involved families, and that has agreed prior to engaging in the service to make his or her recommendations available to the Court, so long as all necessary releases of information have been executed. The Tsapowum Chehalis Tribal Behavioral Health Department shall not be used for this purpose absent advance written permission by that Department’s Director;
G. Tribal affiliation of the parties and the child;
H. Extent of the participation of the parties in Tribal cultural activities.
The Court shall not consider conduct of a proposed guardian that does not affect the welfare of the child. [Res. 2019-110; Res. 2016-17; Res. 2011-020; Res. 2006-63; GC vote 7/9/1985. Prior code § 8.1.4.020.]
5.20.030 Child custody – Temporary custody order – Vacation of order.
A party to a custody proceeding may move for a temporary custody order. The motion must be supported by an affidavit. The Court may award temporary custody after a hearing, or, if there is no objection, solely on the basis of the affidavits.
If a proceeding for dissolution of marriage, legal separation, or declaration of invalidity is dismissed, any temporary custody order is vacated unless a parent or the child’s custodian moves that the proceeding continue as a custody proceeding and the Court finds, after a hearing, that the circumstances of the parents and the best interests of the child require that a custody decree be issued.
If a custody proceeding commenced in the absence of a petition for dissolution of marriage, legal separation, or declaration of invalidity (CTC 5.10.040(A)) is dismissed, any temporary order is vacated. [Res. 2011-020; Res. 2006-63; GC vote 7/9/1985. Prior code § 8.1.4.030.]
5.20.040 Child custody – Visitation rights.
A parent not granted custody of the child is entitled to reasonable visitation rights unless the Court finds, after a hearing, that visitation would endanger the child’s physical, mental, or emotional health. The Court may order visitation rights for any person when visitation may serve the best interest of the child.
The Court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child but the Court shall not restrict a parent’s visitation rights unless it finds that the visitation would endanger the child’s physical, mental, or emotional health. [Res. 2011-020; Res. 2006-63; GC vote 7/9/1985. Prior code § 8.1.4.040.]
5.20.050 Child custody decree – Modification.
The Court shall not modify a prior custody decree unless it finds, upon the basis of facts that have arisen since the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child. In applying these standards, the Court shall retain the custodian established by the prior decree, unless:
A. The custodian agrees to the modification;
B. The child has been integrated into the family of the petitioner with the consent of the custodian;
C. The child’s present environment is detrimental to his or her physical, mental, or emotional health and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child:
1. Provided, however, that if the child’s present environment is adequate to his or her physical, mental and emotional health but a change in custody would result in a significantly improved environment which would clearly outweigh the detriment caused by the disruption of the child’s living pattern, the Court may order a change in custody.
2. If the Court finds that a motion to modify a prior custody order has been brought in bad faith, the Court shall assess the attorney’s fees and court costs of the custodian against the petitioner. [Res. 2011-020; Res. 2006-63; GC vote 7/9/1985. Prior code § 8.1.4.050.]
5.20.060 Child custody – Powers and duties of custodian – Supervision by appropriate agency when necessary.
Except as otherwise agreed by the parties in writing at the time of the custody decree, the custodian may determine the child’s upbringing, including his education, health care, and religious training, unless the Court after hearing finds, upon motion by the noncustodial parent, that in the absence of a specific limitation of the custodian’s authority, the child’s physical, mental or emotional health would be endangered.
If both parents or all contestants agree to the order, or if the Court finds that in the absence of the order the child’s physical, mental, or emotional health would be endangered, the Court may order an appropriate agency which regularly deals with children to exercise continuing supervision over the case to assure that the custodial or visitation terms of the decree are carried out. Such order may be modified by the Court at any time upon petition by either party. [Res. 2016-17; Res. 2011-020; Res. 2006-63; GC vote 7/9/1985. Prior code § 8.1.4.060.]
5.20.070 Child custody – Temporary custody order or modification of custody decree – Affidavits required.
A party seeking a temporary custody order or modification of a custody decree shall submit, together with his motion, an affidavit setting forth facts supporting the requested order or modification and shall give notice, together with a copy of this affidavit, to other parties to the proceedings, who may file opposing affidavits. The Court shall deny the motion unless it finds that adequate cause for hearing the motion is established by the affidavits, in which case it shall set a date for hearing on an order to show cause why the requested order or modification should not be granted. [Res. 2011-020; Res. 2006-63; GC vote 7/9/1985. Prior code § 8.1.4.070.]
5.20.080 Modification of decree.
The orders of the Court entering a decree which divides property between the spouses shall be final upon entry. Provisions for the custody of a child or the amount of the child support to be paid by a noncustodial spouse may be modified at any time following entry upon a showing of good cause and changed circumstances. Such modifications can only be granted upon proper notice to all parties. [Res. 2011-020; Res. 2006-63; GC vote 7/9/1985. Prior code § 8.1.4.080.]