What types of cases does the Indian Child Welfare Act (ICWA) apply to?
The ICWA applies whenever an Indian child is the subject of a state “child custody proceeding.” Specifically, the ICWA provides that a “child custody proceeding” includes:
- “foster care placement” which shall mean any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated;
- “termination of parental rights” which shall mean any action resulting in the termination of the parent-child relationship;
- “preadoptive placement” which shall mean the temporary placement of an Indian child in a foster home or institution after the termination of parental rights, but prior to or in lieu of adoptive placement; and
- “adoptive placement” which shall mean the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption.
This means that ICWA applies to:
- cases where an Indian child is removed by a county child welfare system (foster care);
- probate guardianship cases;
- delinquency cases where the crime would not have been a crime if committed by an adult; and
- family law cases where custody will be with a non-parent or that will result in termination of parental rights or adoption (step-parent adoptions).
ICWA does not apply to tribal proceedings or custody disputes between divorced or divorcing parties.
25 U.S.C. § 1903(1). ↑
CA Family Code § 3041. ↑
U.S. Department of the Interior, Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act, https://www.bia.gov/sites/bia.gov/files/assets/bia/ois/pdf/idc2-056831.pdf. ↑