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.[3424]

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[3425] 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.[3426]

  1. 3424

    25 U.S.C. § 1903(1).

  2. 3425

    CA Family Code § 3041.

  3. 3426

    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.