Child Custody and Support Newsletters

Involuntary Child Custody Proceedings under the Indian Child Welfare Act

When an agency of a state believes that it is the best interests of a child, who could be of Native American descent, to take involuntary custody of the child from his or her parents, the procedures set forth in the Indian Child Welfare Act must be followed. The Act requires notice, a right to intervene in the proceedings by the child's tribe and Indian custodian, appointment of counsel for an indigent parent or Indian custodian, access to court records, and jurisdictional and trial considerations.

Putative Father's Right to Visitation

Parents have a natural right to the companionship of their children. In order to experience that companionship, parents and children must have time to be together. This is generally a non-legal issue. When the child's parents are not married, the child's father is called the putative father because he is reputed to be the father of the child. A putative father may also be known as the child's natural father or biological father. To be the child's legal father, the putative father must prove his paternity before a court. The proof could be a paternity test result or acknowledgment of the child as required by statute. Once paternity is acknowledged the father has a right to visitation with his child, so long as it is in the child's best interests.

Residential Parent Custody Awards

A "residential parent custody award" is one in which the court decides with whom a child will live. Such an award differs from an award of legal custody, in which the court determines who shall make the important decisions affecting the child's health and welfare. One parent may be awarded both residential custody and legal custody, but it is not required.

Restriction on Visitation Rights

In order to protect a child, a court will sometimes impose restrictions on the rights of a noncustodial parent to visit with a child. The extent of the restrictions is based upon what the court finds will best protect the child while still fostering the relationship between the child and the parent.

Rights of Grandparents to Visitation

Many states offer an avenue for grandparents to seek visitation with their grandchildren. While most states permit a grandparent to petition for rights of visitation, some impose restrictions as to the circumstances under which the court will consider the petition.