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Minnesota Chippewa Tribe - Leech Lake Band - Tribal Code

 

Title 6. Family Relations
Chapter 5. Child Custody and Parenting Time

Section A. Child Custody Factors

Section B. Evidence of False Allegations of Child Abuse

Section C. Joint Custody Factors

Section D. Custody Order

Section E. Rights of Parties

Section F. Custody Consent Decree

Section G. Parenting Time

Section H. Domestic Abuse: Supervised Parenting Time

Section I. Rights of Children and Parents

Section J. Move to Another State

Section K. Modification of Order for Parenting Time

Section L. Remedies

Section M. Effect of Certain Criminal Convictions

Section N. Modification of Custody Orders

Section N. Stand-By Custodian

LLOjibwe JCT6 FRC Ch. 5, § A
Section A. Child Custody Factors

Determinations regarding custody of minor children will be based upon the best interests of the child. When making decisions regarding the custody of minor children and parenting time, the Tribal Court shall consider the following factors in determining the best interests of the child:

(1) The wishes of the child's parent or parents as to custody;

(2) The reasonable preferences of the child, if the Court deems the child to be of sufficient age and maturity to express a preference;

(3) The child's primary caretaker;

(4) The intimacy of the relationship between each parent and the child;

(5) The interaction and interrelationship of the child with a parent or parents, siblings, and any other person who may significantly affect the child's best interests;

(6) The child's adjustment to home, school, and community;

(7) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;

(8) The permanence, as a family unit, of the existing or proposed custodial home;

(9) The mental and physical health of all individuals involved; except that a disability, of a proposed custodian or the child shall not be determinative of the custody of the child, unless the proposed custodial arrangement is not in the best interest of the child;

(10) The capacity and disposition of the parties to give the child love, affection, and guidance, and to continue educating and raising the child in the child's culture;

(11) The child's tribal affiliation and the ability of the person best suited to maintain those ties;

(12) The effect on the child of the actions of an abuser, if related to domestic abuse that has occurred between the parents or between a parent and another individual, whether or not the individual alleged to have committed domestic abuse is or ever was a family or household member of the parent; and

(13) except in cases in which a finding of domestic abuse has been made the disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child.

The Court may not use one factor to the exclusion of all others. The primary caretaker factor may not be used as a presumption in determining the best interests of the child. The Court must make detailed findings on each of the factors and explain how the factors led to its conclusions and to the determination of the best interests of the child.

The Court shall not consider conduct of a proposed custodian that does not affect the custodian's relationship to the child.

Leech Lake Ojibwe Jud. Code, T. 6, Fam. Rel. Code Ch. 5, § A, LLOjibwe JCT6 FRC Ch. 5, § A



LLOjibwe JCT6 FRC Ch. 5, § B
Section B. Evidence of False Allegations of Child Abuse

The Court shall consider evidence of a false allegation of child abuse in determining the best interests of the child.

Leech Lake Ojibwe Jud. Code, T. 6, Fam. Rel. Code Ch. 5, § B, LLOjibwe JCT6 FRC Ch. 5, § B




LLOjibwe JCT6 FRC Ch. 5, § C
Section C. Joint Custody Factors

In addition to the factors listed in Section A above, where either joint legal or joint physical custody is contemplated or sought, the Court shall consider the following relevant factors:

(1) The ability of parents to cooperate in the rearing of their children;

(2) The methods proposed for resolving disputes regarding any major decision concerning the life of the child, and the parents' willingness to use those methods;

(3) Whether it would be detrimental to the child if one parent were to have sole authority over the child's upbringing; and

(4) Whether domestic abuse has occurred between the parents.

The Court shall use a rebuttable presumption that upon request of either or both parties, joint legal custody is in the best interests of the child. However, the Court shall use a rebuttable presumption that joint legal or physical custody is not in the best interests of the child if domestic abuse has occurred between the parents.

If the Court awards joint legal or physical custody over the objection of a party, the Court shall make detailed findings on each of the factors in this subdivision and explain how the factors led to its determination that joint custody would be in the best interests of the child.

Leech Lake Ojibwe Jud. Code, T. 6, Fam. Rel. Code Ch. 5, § C, LLOjibwe JCT6 FRC Ch. 5, § C




LLOjibwe JCT6 FRC Ch. 5, § D
Section D. Custody Order

Upon declaring the nullity of a marriage, or in a dissolution or child custody proceeding, the Court shall make such further order as it deems just and proper concerning:

(1) The legal custody of the minor child(ren) of the parties which shall be sole or joint;

(2) The physical custody and residence; and

(3) their support. In determining custody, the Court shall consider the best interests of each child and shall not prefer one parent over the other solely on the basis of the sex of the parent.

Leech Lake Ojibwe Jud. Code, T. 6, Fam. Rel. Code Ch. 5, § D, LLOjibwe JCT6 FRC Ch. 5, § D




LLOjibwe JCT6 FRC Ch. 5, § E
Section E. Rights of Parties

The Court shall grant the following rights to each of the parties, unless specific findings are made regarding limitations to these rights. Each party has the right of access to, and to receive copies of, school, medical, dental, religious training, and other important records and information about the minor children. Each party has the right of access to information regarding health or dental insurance available to the minor children. Each party shall keep the other party informed as to the name and address of the school of attendance of the minor children. Each party has the right to be informed by school officials about the children's welfare, educational progress and status, and to attend school and parent-teacher conferences. The school is not required to hold a separate conference for each party. In case of an accident or serious illness of a minor child, each party shall notify the other party of the accident or illness, and the name of the health care provider and the place of treatment. Each party has the right to reasonable access and telephone contact with the minor children. The Court may waive any of the rights under this section if it finds it is necessary to protect the welfare of a party or child.

Leech Lake Ojibwe Jud. Code, T. 6, Fam. Rel. Code Ch. 5, § E, LLOjibwe JCT6 FRC Ch. 5, § E




LLOjibwe JCT6 FRC Ch. 5, § F
Section F. Custody Consent Decree

In a proceeding under this section, a parent may transfer legal and physical custody of a child by a consent decree. The Court may approve a proposed consent decree if the custody arrangement is in the best interests of the child and all parties to the decree agree to it after being fully informed of its contents. A consent decree under this section must:

(1) transfer legal and physical custody of the child to a third party and state that this includes the ability to determine the child's residence; make decisions regarding the child's education, religious training, and health care; and obtain information and public services on behalf of the child in the same manner as a parent;

(2) indicate whether the transfer of custody is temporary or permanent; and

(3) include an order for child support in the guidelines amount subject to income withholding and including an order for medical support. A party to a consent decree under this section may file a motion to modify or terminate the consent decree at any time. A party who has custody of a child under this section must seek modification of the consent decree before transferring physical or legal custody of the child to anyone.

Leech Lake Ojibwe Jud. Code, T. 6, Fam. Rel. Code Ch. 5, § F, LLOjibwe JCT6 FRC Ch. 5, § F


LLOjibwe JCT6 FRC Ch. 5, § G
Section G. Parenting Time

(1) In all proceedings for dissolution, subsequent to the commencement of the proceeding and continuing thereafter during the minority of the child, the Court shall, upon the request of either parent, grant such parenting time on behalf of the child and a parent as will enable the child and the parent to maintain a child to parent relationship that will be in the best interests of the child. If the Court finds, after a hearing, that parenting time with a parent is likely to endanger the child's physical or emotional health or impair the child's emotional development, the Court shall restrict parenting time with that parent as to time, place, duration, or supervision and may deny parenting time entirely, as the circumstances warrant. The Court shall consider the age of the child and the child's relationship with the parent prior to the commencement of the proceeding. A parent's failure to pay support because of the parent's inability to do so shall not be sufficient cause for denial of parenting time.

(2) The Court may provide that a law enforcement officer or other appropriate person will accompany a party seeking to enforce or comply with parenting time.

(3) Upon request of either party, to the extent practicable an order for parenting time must include a specific schedule for parenting time, including the frequency and duration of visitation and visitation during holidays and vacations, unless parenting time is restricted, denied, or reserved.

(4) The Court administrator shall provide a form for a pro se motion regarding parenting time disputes, which includes provisions for indicating the relief requested, an affidavit in which the party may state the facts of the dispute, and a brief description of the parenting time dispute. The form may not include a request for a change of custody. The Court shall provide instructions on serving and filing the motion.

(5) In the absence of other evidence, there is a rebuttable presumption that a parent is entitled to receive at least 25 percent of the parenting time for the child. For purposes of this paragraph, the percentage of parenting time may be determined by calculating the number of overnights that a child spends with a parent or by using a method other than overnights if the parent has significant time periods on separate days when the child is in the parent's physical custody but does not stay overnight. The Court may consider the age of the child in determining whether a child is with a parent for a significant period of time.

Leech Lake Ojibwe Jud. Code, T. 6, Fam. Rel. Code Ch. 5, § G, LLOjibwe JCT6 FRC Ch. 5, § G



LLOjibwe JCT6 FRC Ch. 5, § H
Section H. Domestic Abuse; Supervised Parenting Time

(1) If a parent requests supervised parenting time under Section G above and an order for protection is in effect against the other parent to protect the parent with whom the child resides or the child, the judge or judicial officer must consider the provisions of the order for protection in making a decision regarding parenting time.

(2) The Court administrator, in consultation with representatives of parents and other interested persons, shall develop standards to be met by persons who are responsible for supervising parenting time. Either parent may challenge the appropriateness of an individual chosen by the Court to supervise parenting time.

Leech Lake Ojibwe Jud. Code, T. 6, Fam. Rel. Code Ch. 5, § H, LLOjibwe JCT6 FRC Ch. 5, § H

 




LLOjibwe JCT6 FRC Ch. 5, § I
Section I. Rights of Children and Parents

Upon the request of either parent, the Court may inform any child of the parties, if eight (8) years of age or older, or otherwise of an age of suitable comprehension, of the rights of the child and each parent under the order or decree or any substantial amendment thereof. The parent with whom the child resides shall present the child for parenting time with the other parent, at such times as the Court directs.

Leech Lake Ojibwe Jud. Code, T. 6, Fam. Rel. Code Ch. 5, § I, LLOjibwe JCT6 FRC Ch. 5, § I




LLOjibwe JCT6 FRC Ch. 5, § J
Section J. Move to Another State

(1) The parent with whom the child resides shall not move the residence of the child to another state except upon order of the Court or with the consent of the other parent, if the other parent has been given parenting time by the decree. If the purpose of the move is to interfere with parenting time given to the other parent by the decree, the Court shall not permit the child's residence to be moved to another state.

(2) The Court shall apply a best interests standard when considering the request of the parent with whom the child resides to move the child's residence to another state. The factors the Court must consider in determining the child's best interests include, but are not limited to:

(a) the nature, quality, extent of involvement, and duration of the child's relationship with the person proposing to relocate and with the nonrelocating person, siblings, and other significant persons in the child's life;

(b) the age, developmental stage, needs of the child, and the likely impact the relocation will have on the child's physical, educational, and emotional development, taking into consideration special needs of the child;

(c) the feasibility of preserving the relationship between the nonrelocating person and the child through suitable parenting time arrangements, considering the logistics and financial circumstances of the parties;

(d) the child's preference, taking into consideration the age and maturity of the child;

(e) whether there is an established pattern of conduct of the person seeking the relocation either to promote or thwart the relationship of the child and the nonrelocating person;

(f) whether the relocation of the child will enhance the general quality of the life for both the custodial parent seeking the relocation and the child including, but not limited to, financial or emotional benefit or educational opportunity;

(g) the reasons of each person for seeking or opposing the relocation; and

(h) the effect on the safety and welfare of the child, or of the parent requesting to move the child's residence, of domestic abuse.

(3) The burden of proof is upon the parent requesting to move the residence of the child to another state, except that if the Court finds that the person requesting permission to move has been a victim of domestic abuse by the other parent, the burden of proof is upon the parent opposing the move. The Court must consider all of the factors in this subdivision in determining the best interests of the child.

Leech Lake Ojibwe Jud. Code, T. 6, Fam. Rel. Code Ch. 5, § J, LLOjibwe JCT6 FRC Ch. 5, § J




LLOjibwe JCT6 FRC Ch. 5, § K
Section. K. Modification of Order for Parenting Time

If modification of an order for parenting time would serve the best interests of the child, the Court shall modify the order granting or denying parenting time, if the modification would not change the child's primary residence. The court may not restrict parenting time unless it finds that:

(1) parenting time is likely to endanger the child's physical or emotional health or impair the child's emotional development; or

(2) the parent has chronically and unreasonably failed to comply with court-ordered parenting time.

If a parent makes specific allegations that parenting time by the other parent places the parent or child in danger of harm, the Court shall hold a hearing at the earliest possible time to determine the need to modify the order granting parenting time. The Court may require a third party to supervise the parenting time or may restrict a parent's parenting time if necessary to protect the other parent or child from harm. If there is an existing order for protection governing the parties, the Court shall consider the use of an independent, neutral exchange location for parenting time.

Leech Lake Ojibwe Jud. Code, T. 6, Fam. Rel. Code Ch. 5, § K, LLOjibwe JCT6 FRC Ch. 5, § K




LLOjibwe JCT6 FRC Ch. 5, § L
Section L. Remedies

(1) The Court may provide for one or more of the following remedies for denial of or interference with court-ordered parenting time as provided under this subdivision. All parenting time orders must include notice of the provisions of this subdivision.

(2) If the Court finds that a person has been deprived of court-ordered parenting time, the Court shall order the parent who has interfered to allow compensatory parenting time to the other parent or the Court shall make specific findings as to why a request for compensatory parenting time is denied. If compensatory parenting time is awarded, additional parenting time must be:

(a) at least of the same type and duration as the deprived parenting time and, at the discretion of the Court, may be in excess of or of a different type than the deprived parenting time;

(b) taken within one year after the deprived parenting time; and

(c) at a time acceptable to the parent deprived of parenting time.

(3) If the Court finds that a party has wrongfully failed to comply with a parenting time order or a binding agreement or decision, the Court may:

(a) impose a civil penalty of up to $500 on the party;

(b) require the party to post a bond with the Court for a specified period of time to secure the party's compliance;

(c) award reasonable attorney's fees and costs;

(d) require the party who violated the parenting time to reimburse the other party for costs incurred as a result of the violation of the order or agreement or decision; or

(e) award any other remedy that the Court finds to be in the best interests of the children involved.

(4) If the Court finds that a party has been denied parenting time and has incurred expenses in connection with the denied parenting time, the Court may require the party who denied parenting time to post a bond in favor of the other party in the amount of prepaid expenses associated with upcoming planned parenting time.

(5) Proof of an unwarranted denial of or interference with duly established parenting time may constitute contempt of court and may be sufficient cause for reversal of custody.

Leech Lake Ojibwe Jud. Code, T. 6, Fam. Rel. Code Ch. 5, § L, LLOjibwe JCT6 FRC Ch. 5, § L

 

LLOjibwe JCT6 FRC Ch. 5, § M
Section M. Effect of Certain Criminal Convictions

(1) Seeking custody or parenting time.

Notwithstanding any contrary provision in Section A above, if a person seeking child custody or parenting time has been convicted of a crime described below, the person seeking custody or parenting time has the burden to prove that custody or parenting time by that person is in the best interests of the child if:

(a) the conviction occurred within the preceding five years;

(b) the person is currently incarcerated, on probation, or under supervised release for the offense; or

(c) the victim of the crime was a family or household member.

If this section applies, the Court may not grant custody or parenting time to the person unless it finds that the custody or parenting time is in the best interests of the child. If the victim of the crime was a family or household member, the standard of proof is clear and convincing evidence.

(2) Applicable crimes.

This section applies to the following crimes or similar crimes under the laws of the United States, or any other state or tribe:

(a) murder in the first, second, or third degree;

(b) manslaughter in the first degree;

(c) assault in the first, second, or third degree;

(d) kidnapping;

(e) depriving another of custodial or parental rights;

(f) soliciting, inducing, promoting, or receiving profit derived from prostitution involving a minor;

(g) criminal sexual conduct in the first degree;

(h) criminal sexual conduct in the second degree;

(i) criminal sexual conduct in the third degree;

(j) solicitation of a child to engage in sexual conduct;

(k) incest;

(l) malicious punishment of a child;

(m) neglect of a child;

(n) terroristic threats; or

(o) felony harassment or stalking.

Leech Lake Ojibwe Jud. Code, T. 6, Fam. Rel. Code Ch. 5, § M, LLOjibwe JCT6 FRC Ch. 5, § M



LLOjibwe JCT6 FRC Ch. 5, § N
Section N. Modification of Custody Orders

(1) Unless agreed to in writing by the parties, no motion to modify a custody order or parenting plan may be made earlier than one year after the date of the entry of a decree of dissolution or custody or parenting time order containing a provision dealing with custody, except in accordance with paragraph (3).

(2) If a motion for modification has been heard, whether or not it was granted, unless agreed to in writing by the parties no subsequent motion may be filed within two years after disposition of the prior motion on its merits, except in accordance with paragraph (3).

(3) The time limitations prescribed in paragraphs (1) and (2) above shall not prohibit a motion to modify a custody order or parenting plan if the Court finds that there is persistent and willful denial or interference with parenting time, or has reason to believe that the child's present environment may endanger the child's physical or emotional health or impair the child's emotional development.

(4) If the Court has jurisdiction to determine child custody matters, the Court shall not modify a prior custody order or a parenting plan provision which specifies the child's primary residence unless it finds, upon the basis of facts, including unwarranted denial of, or interference with, a duly established parenting time schedule, that have arisen since the prior order or that were unknown to the Court at the time of the prior order, that a change has occurred in the circumstances of the child or the parties and that the modification is necessary to serve the best interests of the child. In applying these standards the Court shall retain the custody arrangement or the parenting plan provision specifying the child's primary residence that was established by the prior order unless:

(a) the Court finds that a change in the custody arrangement or primary residence is in the best interests of the child;

(b) both parties agree to the modification;

(c) the child has been integrated into the family of the petitioner with the consent of the other party;

(d) the child's present environment endangers the child's physical or emotional health or impairs the child's emotional development and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child; or

(e) the Court has denied a request of the primary custodial parent to move the residence of the child to another state, and the primary custodial parent has relocated to another state despite the Court's order.

Leech Lake Ojibwe Jud. Code, T. 6, Fam. Rel. Code Ch. 5, § N, LLOjibwe JCT6 FRC Ch. 5, § N




LLOjibwe JCT6 FRC Ch. 5, § N
Section N. Standby Custodian

(1) A standby or temporary custodian may act as co-custodian or custodian upon the occurrence of the triggering event. The commencement of the standby or temporary custodian's authority to act as co-custodian pursuant to a determination of incapacity, a determination of debilitation and consent, or the receipt of consent alone does not itself divest the designator of any parental rights but confers on the standby or temporary custodian concurrent or shared custody of the child.

(2) Death of Designator.

The commencement of the standby custodian's authority to act as custodian because of the death of the designator does not confer upon the standby custodian more than legal and physical custody of the child. On the death of the designator, the standby custodian shall be appointed a guardian. No separate petition is required. No bond or accounting is required except as specified in this chapter.

(3) Involvement of Designator.

A co-custodian shall assure frequent and continuing contact with and physical access by the designator with the child and shall assure the involvement of the parents, to the greatest extent possible, in decision making on behalf of the child.

(4) Effect of Filing.

The designator may file a petition for approval of a designation with the Court at any time. If the petition is approved by the Court before the occurrence of the triggering event, the standby or temporary custodian's authority commences automatically upon the occurrence of the triggering event. No further petition or confirmation is required. If a designation has been made but the petition for approval of the designation has not been filed and a triggering event has occurred, the standby custodian has temporary legal authority to act as a co-custodian or custodian of the child(ren) without the direction of the Court for a period of sixty (60) days. The standby custodian must, within that period, file a petition for approval in accordance with this section. If no petition is filed within sixty (60) days, the standby custodian loses all authority to act as co-custodian or custodian. If a petition is filed but the Court does not act upon it within the sixty (60)-day period, the temporary legal authority to act as co-custodian or custodian continues until the Court orders otherwise.

(5) Parental Rights.

The commencement of a co-custodian's or stand-by custodian's authority under this chapter does not, by itself, divest a parent or legal custodian of any parental or custodial rights.

(6) Modification of Appointment.

Once a court has confirmed the designation of a standby custodian, the appointment may be modified only under section (Modification), except that the designator may revoke the designation at will.

(7) Restored Capacity.

If a licensed physician determines that the designator has regained capacity, the co-custodian's authority that commenced on the occurrence of a triggering event becomes inactive. Failure of a co-custodian to immediately return the child(ren) to the designator's care entitles the designator to an emergency hearing within five days of a request for a hearing.

Leech Lake Ojibwe Jud. Code, T. 6, Fam. Rel. Code Ch. 5, § N, LLOjibwe JCT6 FRC Ch. 5, § N

 

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