My (Native American) Tribe Intervened and Gained Custody of My Children, How Do I Regain Custody?

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“My husband has 3 yr old twins. He just established paternity in aug.05,from then on he has paid his child support. In feb.06 his children’s mother died. He went to court for guardianship in July 06, and he was told his rights had been terminated by default. They (DHS) terminated his rights through publication. His tribe (native american) intervened and his children are in the tribes custody. His tribe says his rights were wrongfully terminated, they did not follow ICWA rules. The tribe said he needs his rights back. What should I do to get my rights back? What chance do I have?”

[NOTE: Articles and answers on DearEsq., while written and published by lawyers, do not constitute legal advice, and no attorney-client relationship is formed by your reading of this information. You should always consult with an attorney for any legal situations.]

If the case is now in the jurisdiction of the tribal court, that court would have exclusive right to make orders, and he would need to follow tribal court procedures. If a timely request was not made to refer the case to the tribal court (at appeal probably too late), then the case still may be reviewable by the Court that issued the ruling. The termination of parental rights may either be appealable or subject to set aside. However, there are time limits to file such things. Your husband should engage the services of an attorney familiar with juvenile court proceedings right away. There may be services available through the tribe, the federal government or a local pro bono project if he looks hard enough to at least help him figure out what he needs to figure out. Find a juvenile attorney who handles appeals and pick their brain. If they are excited about the prospect of taking your case, then your chances are probably pretty good. Most Courts would rather place children with willing nd able parents anyway.

If there was a reason (criminal or otherwise) that restricted your husband’s access to the children, then that probably did not go away with the death of the mother. Similarly, if he caused the death of the mother, then his claim for custody might also be restricted by state law.

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Author: House Attorney

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