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Indian Tribe, Law and Order Code
Last updated: 1991 HOPI PARENTAL RESPONSIBILITY ORDINANCE
This Ordinance shall be known as the Hopi Parental Responsibility Ordinance. Section 2 - Statement of Policy. A. It is the public policy of the Hopi Tribe to support the rights of children. Children represent a continuation of the Hopi way of life and of future generations. They must be loved and receive care. Parents and relations have a responsibility to contribute to the nourishment and support of then children. Parents must also establish the parentage of their children for tribal enrollment and for identity in family and clan relations. B. Both parents have an obligation towards their children that includes much more than financial support; it includes time and attention as well as guidance and the teaching of Hopi values. While it is the policy of the Hopi Tribe to support these non-financial elements of parenthood, nothing in this Ordinance makes them mandatory. C. Children shall be maintained as completely as possible from the resources of their parents. This Ordinance establishes a judicial process for the establishment of parentage; the establishment, modification and enforcement of child support obligations; and adds remedies to those already existing for child support enforcement. It also provides for a uniform schedule of child support payments to make awards more fair and to provide parties and judges with guidance in determining child support. This Ordinance shall be liberally construed to effectuate the policies stated herein. For purposes of this Ordinance:
Section 4 - Jurisdiction for Child Support Determination; Proceedings Involving Village Members A. The Hopi Tribal Court shall have jurisdiction in all civil proceedings described in this Ordinance, except that the Hopi Villages have original jurisdiction in all proceedings involving Village members. B. If the child is a member of a Hopi Village, the petitioner must file a copy of the petition with the kikmongwi or other leader of the child's Village at the same time as filing it with the Court. The copy to the Village shall contain the following statement: The
Hopi Tribal Court does not have original jurisdiction over this
matter pursuant to Article III, Section 2, of the Hopi Constitution.
Your Village may choose to handle this matter in the way traditional
to your Village; request the services of the Hopi Tribal Court to
assist you in your processing of this matter; intervene in this
action; or delegate jurisdiction to the Hopi Tribal Court. The deadline
for your reply stating the decision of the Village is 20 days from
date of filing. C. Villages may request an extension of time to decide whether to handle the matter, and may request to reassume jurisdiction at any time, even though the deadline has passed. Villages may also choose to handle only one aspect of a dispute presented to them, and delegate remaining issues to the Courts for resolution. D. A Village decision regarding parentage and/or child support may be enforced by the Hopi Tribal Court through an appropriate action brought before that Court. The Hopi Tribal Court shall also certify Village decisions as having the same force and effect as a court order upon presentation of sufficient evidence of the Village decision. Section 5 - Court Initiated Child Support Determination In any proceeding before the Hopi Tribal Court in which there is at issue the support of a child the Court shall determine the support obligations of the parents and enter an order of child support according to this Ordinance. Divorces involving children are one example of such a proceeding. If, after the passage of this Ordinance, the Court fails to determine child support when such a matter is before it, the person caring for the child may request back support from the time at which the Court heard the original matter. Section 6 - Child Support Determination Initiated by Custodial Parent or Other Interested Party A. An action to determine child support or parentage may be initiated at any time before the child in question has his or her eighteenth birthday, or thereafter under circumstances specified in Sections 3.C or 16 of this Ordinance. Any custodial parent or guardian, with or without an attorney, or any Tribal, state or federal agency authorized to enforce the child support laws may initiate an action for child support by filing a petition for establishment of child support with the clerk of the Hopi Tribal Court and, if the parties are members of a Village or Villages, with the kikmongwi or leader of the child's Village. B. The petition to establish child support shall include the following: 1. The name, address, income and tribal affiliation, if any, of the custodial parent or guardian; 2. The name, date of birth, and tribal affiliation, if any, of the child or children for whom support is requested; 3. The cost of the children's health care and dental insurance premiums paid by the custodial parent, if any; 4. The cost of child care necessary to permit the parent to work; 5. Any extraordinary costs associated with caring for the child, such as necessary medical costs or education costs or costs of transportation for visitation between parents sharing custody; 6. If custody is split between the parents, the percentage of the year (calculated as numbers of days in the year with each parent) during which the petitioner has physical custody of the child; 7. The name and tribal affiliation, if any, of the non-custodial parent from whom support is requested and whether parentage by the non-custodial parent has been established; 8. If known, the social security number, address, and income of the non-custodial parent. If the address of the non-custodial parent is unknown, the court shall refer the matter to the Federal Parent Locator Service. C. The petition to establish parentage shall include the following: 1. The name, address, and tribal affiliation, if any, of the custodial parent or guardian; 2. The name, date of birth, and tribal affiliation, if any, of the child or children whose parentage is at issue; 3. The name and tribal affiliation, if any, of the person who is claimed to be the parent; 4. If known, the social security number and address of the non-custodial parent. 5. Evidence of parentage including, but not limited to, birth certificates, marriage or sharing residence of the parties, or genetic tests performed. D. Upon receipt of the petition, the Court shall schedule a hearing to determine child support within 50 days from the date the petition is filed. The Clerk of the Court shall issue a summons providing notice of the date and subject matter of the hearing with a copy of the petition to the petitioner for service on the respondent. The summons shall inform the respondent of the following: 1. That if he or she chooses not to appear at the hearing or enter a defense to the petition challenging the authority of the court to hear the matter by the date of the hearing, the hearing shall proceed on the basis of the petitioner's evidence; 2. That parentage will be established at the hearing if parentage has not yet been established and that genetic tests will be ordered if parentage is disputed; 3. That the respondent's employer or others with evidence of the parent's income may be subpoenaed to provide the Court with records of his or her earnings; 4. That if the respondent is unemployed he or she will still be assumed to be able to provide some degree of child support and an order of support will be calculated according to the Guidelines unless the Court makes written findings of injustice in their application to the respondent pursuant to Section 16(F) of this Ordinance; 5. That he or she may enter into a stipulated support agreement or voluntary acknowledgement of parentage as stated in this Ordinance; 6. That any answer to the petition must be filed within 20 days of the date of service of the petition. The petition shall be served in person, unless service in person is not feasible. If personal service is not feasible, the petition may be served by certified mail on the last known address of the respondent or by other method approved by the Court.
At any time prior to the date of the hearing, the parties may enter into a stipulated agreement as to the establishment of parentage or the level of child support obligation. The court will not approve an agreement that provides for a level of child support that is substantially less than that provided for by the Hopi Tribal Child Support Guidelines established pursuant to Section 16 of this Ordinance. If the respondent contends that the Guidelines are unjust as applied to his or her situation, he or she must establish this in a hearing before the Hopi Tribal Court, pursuant to Section 16(F) of this Ordinance. The signed stipulated agreement shall be submitted to the Hopi Tribal Court for approval and enforcement. After said agreement is approved by the Court, it shall be filed with the Clerk of the Tribal Court with a statement that it shall have the same force as an order issued by the Court. The obligation of the non-custodial parent to pay child support shall commence on the date that the stipulated agreement is filed.
A. Relevant Information The factual determinations made at the hearing shall be limited to the parentage of the child or children and the income and expense information necessary to determine the appropriate level of support according to the Hopi Tribal Child Support Guidelines. B. Use of Custom and Tradition; Validation of Traditional Marriages The Hopi Courts should consider Hopi customs and traditions relevant to child support or parentage, including evidence of traditional marriage and birthing ceremonies, in making any determination under this Ordinance. Upon presentation of sufficient evidence by the parties, the Hopi Courts may also recognize traditional Hopi marriages for any purposes. C. Discovery In hearings in child support and parentage matters the Hopi Tribal Courts shall not be limited to discovery with the consent of both parties, but shall also have the power to utilize mandatory discovery procedures to obtain any information relevant to the establishment or enforcement of child support or parentage. These procedures shall include the following: 1. The inspection of property, examination and production of pertinent records, books, information, or evidence; 2. The subpoena of any person for testimony under oath, for production of documents or things, and for submission to genetic testing; 3. Punishment by contempt for refusal to comply with the discovery orders of the court. D. Representation Both parties have the right to representation at their own expense. Representatives shall be those authorized by the Hopi Court to appear before it and officers of Child Support Enforcement Agencies or other tribal officials authorized by the Hopi Tribe to represent those seeking child support on the Hopi Reservation. E. Establishment of Parentage 1. If parentage is disputed, the Court shall order genetic testing of the parties, unless the Court finds good cause not to. If such test confirms parentage, the disputing parent shall pay the costs of testing. If the test disproves parentage, the petitioner shall pay the costs of testing. 2. A positive genetic test will establish a presumption of parentage. Such presumption can only be rebutted with clear and convincing scientific evidence. Unless a party objects to the results of testing in writing more than five working days before the hearing, such tests shall be admitted as evidence without need for foundation testimony or other proof of authenticity. 3. A birth certificate signed by the putative parent will also establish a presumption of parentage that can only be rebutted by clear and convincing evidence. 4. In the event that a genetic test is not available or not in the best interests of the child, evidence that the parties were married shall create a rebuttable presumption of parentage. 5. Testimony by the disputing parent as to the petitioning parent's infidelity is not competent evidence In a determination of parentage unless these is corroboration from another source. F. Establishment of Level of Support The Court shall establish the amount of the child support obligation of the absent parent by using the Hopi Tribal Child Support Guidelines provided in Section 16. The court shall not depart downward from the guidelines unless it makes written findings of injustice as applied to the respondent pursuant to Section 16(F) of this Ordinance. The standard of proof for establishment of the amount of the child support obligation shall be by preponderance of the evidence. The petitioner shall bear the burden of proof, except that the respondent shall bear the burden of proof that the guidelines are unjust as applied to the respondent. G. Default If the respondent fails to appear at the hearing upon a showing of valid service and the petitioner presents evidence of parentage or obligation by the absent party, the Court shall enter an order of parentage and child support obligation pursuant to the evidence. Section 9 - Content and Effect of Order
Section 10 - Enforcement of Order A. Notice of Delinquency In the event that the non-custodial parent is at least one month delinquent in paying his or her child support obligation, the custodial parent or authorized public office may prepare and serve upon the non-custodial parent a notice of delinquency and filing the notice with proof of service on the Court. Service of the notice shall be effected by sending the notice by prepaid certified mail addressed to the non-custodial parent at his or her last known address, or by any method provided by law. The notice shall inform the non-custodial parent of the following: 1. The terms of the child support enforcement order sought to be enforced; 2. The period and total amount of the delinquency; 3. The procedures to avoid immediate withholding; 4. That an order to withhold income shall be served on the payor within 20 days after service is completed unless the non-custodial parent complies with the procedures to avoid withholding; The notice of delinquency shall be verified and filed, with proof of service, with the clerk of the court. B. Order to Withhold Income and Give Security for Debt If, twenty days after completion of service of the notice of delinquency, the non-custodial parent has not filed a motion presenting good cause why income should not be withheld, the Court shall serve an order to withhold income on the employer or other payor of the non-custodial parent. Such order shall direct that the non-custodial parent's wages and other benefits be garnished in an amount equal to the monthly support payment. An additional twenty percent of the support payment, or such additional amount as the court may order after notice and hearing, shall be withheld each month to compensate for any accrued delinquent payment until the delinquency is satisfied. A payor served with an order to withhold income shall begin withholding no more than 14 days after service of the notice. An order to withhold income shall be binding against future payors upon actual notice of the order or service by personal delivery or certified mail upon the payor. Pursuant to 28 U.S.C. § 1738B, such service shall be equally binding upon employees and payors not within the jurisdiction of the Hopi Courts. C. Bond Requirement Twenty days after the service of the notice of delinquency, the Court may require that a party post a bond, give security, or some other guarantee to secure payment of overdue support unless the non-custodial parent makes a sufficient showing of one of the first three grounds set forth in part D of this section. D. Stay or Waiver of Order to Withhold Income If the non-custodial parent wants to prevent an order to withhold income from being served, he or she must file a motion to stay service with the clerk of the Hopi Tribal Court within twenty days after service of the notice of delinquency. Grounds for the motion to stay service shall be limited to: 1. A dispute concerning the existence or the amount of the delinquency; 2. Non-compliance with this Ordinance; or 3. Evidence that the delinquency has been cured since the filing of the notice. 4. Evidence of a court approved agreement between the non-custodial parent and the custodial parent for an alternative method of payment. The court may only waive the order to withhold income if it finds that the non-custodial parent has met the burden of showing good cause why income should not be withheld and upon a written order of the reasons for such cause. E. Criminal Sanction Willful
failure to comply with a Hopi Child Support Order may also be punishable
as a criminal offense under the provisions in Hopi Ordinance 21
concerning Persistent Nonsupport (3.3.31), Failure to Obey Lawful
Order of Court (3.3.84), Contempt of Court (2.15.3) and/or any other
relevant provisions appropriate under the facts of the case. Non-exempt property of the debtor may be seized and sold to execute a child support obligation that has been adjudicated delinquent by the courts, following the procedures provided by the Hopi Indian Rules of Civil and Criminal Procedure, with the addition that real as well as personal property may be sold. Ceremonial or religious property and real property held in trust are exempt from such writs of execution. G. Suspension or Denial of Licenses Upon receiving evidence of two refusals to comply with a lawful Hopi Child Support order, or evidence of willful failure to pay child support for at least one year, the Court shall order the suspension or denial of the non-paying parent's occupational, recreational, and motor vehicle licenses, unless the Court finds that it would not be in the best interest of the child to suspend such licenses. A court order to suspend or deny such licenses shall be binding on and given effect by the license issuing agencies. If license issuing agencies not within the jurisdiction of the Hopi tribe refuse to give effect to such orders, the party seeking suspension should submit the order to the court of the license issuing agency for full faith and credit as an order of that court. H. Enforcement of Orders for Provision of Goods and Services Failure to comply with an order to provide goods and services to meet a child support obligation may be enforced in the same manner as orders for monetary support, except that the Court may not physically compel persons to perform services. Income may be withheld or property seized and sold to provide the custodial parent with the monetary value of the goods and/or services that were not provided.
A change in the Hopi Tribal Child Support Guidelines shall constitute a change in circumstances and shall justify modification of a child support order. The amounts of past due support may not be modified unless there is a showing of exceptional circumstances, such as insanity or lack of any legal, actual, or constructive notice of the award, that prevented the non-custodial parent from requesting a modification in the child support obligation. If the child support award becomes unjust due to changed circumstances of the non-custodial parent, the non-custodial parent has the duty to petition the court for a changed award at that time. He or she may not raise that change in circumstances as a reason not to pay a past due award. Section 12 - Employers Must Donor Wage Assignments and Garnishments; Retaliation Prohibited. No employer shall refuse to honor an order of garnishment entered by the court or a voluntary wage assignment executed pursuant to this Ordinance. Employers shall begin withholding income no more than 14 days after receipt of a true copy of the order. No employer may discharge or take other adverse action against any employee because his or her wages have been subjected to assignment or garnishment for child support. An employer may, however, deduct the actual costs of complying with an order of garnishment or wage assignment, not to exceed five dollars, from the amount garnished or assigned. The employer must justify such deductions in a written itemization presented to the Hopi Child Support Registry and forwarded to the parties. Section 13 - Full Faith and Credit for Foreign Child Support Orders A. Properly issued court and administrative orders, judgments or decrees of other Indian tribes, states, or federal agencies, that relate to child support enforcement, will be given full faith and credit pursuant to 28 U.S.C. § 1738B. Such orders will be considered properly issued where the issuing tribunal had personal jurisdiction over the person claimed to be bound by the foreign order, subject matter jurisdiction over the matter, proper service of process under the law of the issuing jurisdiction was made on such person, and the order was issued according to the laws of that tribunal. B. A foreign order is authenticated by reasonable proof that the document tendered to the Clerk of the Hopi Tribal Court is a true copy of the foreign order as it is recorded in the agency or court of the issuing jurisdiction. An authentication stamp issued by a clerk of court or custodian of records, or a court seal, is sufficient evidence of authenticity. Unless defects in jurisdiction are apparent on the face of the foreign order, the person contesting enforcement of the order has the burden of showing the order is not valid. If the respondent does not respond and object within twenty days after being served with notice of the application for full faith and credit, the Hopi Tribal Court shall recognize and enforce it as a Hopi Tribal Court Order. C. Where a foreign order is invalid by reason of a lack of jurisdiction in the agency or court of the issuing jurisdiction, the Court may adopt some or all of its provisions as an original order of the Court after determining that the respondent was given sufficient notice and opportunity to present evidence and that the provisions adopted do not contravene Hopi law or policy. Section 14 - Post Minority Child Support The Hopi Tribal Court has equitable jurisdiction to order a non-custodial parent to pay child support for the benefit of a child who has reached the age of majority (18 or older) if equity demands. Circumstances that may support an order of post minority support include the following: 1. Full-time enrollment in post-secondary academic or vocational school by a child under thirty. Such support shall cease during any periods during which the child is not a full-time student, excluding summer vacations. 2. Serious physical or mental disability of the child which prolongs his or her dependence on his or her parental income past the age of eighteen. A court ordering post-minority support shall state. the reasons for doing so in writing. Amounts established for post-minority child support shall be those determined by the court to be fair and appropriate under the circumstances. As provided earlier in this Ordinance, children who have not graduated from high school by the age of eighteen are entitled to child support as provided by the guidelines so long as they are full time students in high school or General Equivalency Diploma programs. Section 15 - Sovereign Immunity of the Hopi Tribe Nothing in this Ordinance is intended to abrogate or otherwise impair the sovereign immunity of the Hopi Tribe. Section 16 - Hopi Tribal Child Support Guidelines. A. Introduction The
Hopi Tribe here establishes a scale of minimum financial child support
contributions. This scale shall be used to determine the amount
an absent parent shall pay for support of his or her child or children
pursuant to this ordinance. B. Purposes of the Child Support Guidelines. The purposes of the child support guidelines are to: 1. Establish as Hopi policy an adequate standard of support for children, subject to the ability of parents to pay; 2. Make support payments more equitable by ensuring more consistent treatment of persons in similar circumstances; and 3. Improve the efficiency of the court process by promoting settlements and giving guidance in establishing levels of child support to the Hopi Tribal Courts and the parties. C. Use of the Child Support Guidelines. In any action to establish or modify child support, the child support guidelines as set forth in this section shall be applied to determine the child support due and shall create a rebuttable presumption for the amount of such child support obligation. The Hopi Tribal Child Support Guidelines shall be used for temporary and permanent orders, separations, dissolutions, and support decrees. The Hopi Tribal Child Support Guidelines shall be used by the Hopi Tribal Courts as the basis for reviewing the adequacy of child support levels in non-contested cases as well as contested hearings. D. Determination of the Child Support Amount. To establish or modify child support, the child support guidelines as set forth shall be applied to determine the amount of child support due. A specific amount of child support should always be ordered, no matter how minimal, to establish the principle of that parent's obligation to provide physical support to the child. 1. The basic child support obligation shall be calculated based on the combined income of both parents and shall be paid by them proportionately pursuant to the worksheets provided in the Appendix. Unemployment shall not excuse the parent from the obligation to contribute some degree of support, unless otherwise provided under these guidelines. 2. Physical Custody adjustments shall. be made as follows: a. For basic visitation situations, the basic child support obligation shall be calculated using the Basic Child Support Schedule, Worksheet A and instructions provided for Worksheet A. The Court may provide for a partial abatement of child support for visitation of one month or longer; and b. For shared responsibility arrangements, the basic child support obligation shall be calculated using the Basic Child Support Schedule, Worksheet B and instructions provided for Worksheet B. c. In shared responsibility situations, each parent retains the percentage of the basic support obligation equal to the number of twenty-four-hour days of responsibility spent by each child with each respective parent divided by three hundred sixty-five. 3. The cost of providing necessary medical, dental and behavioral health care for the children of the parties and the net reasonable child care costs incurred on behalf of these children due to employment or job search of either parent shall be paid by each parent in proportion to his or her income, in addition to the basic obligation. Each parent shall provide their proportional share of the cost of supplemental medical and dental insurance which may be available to them through their employment and is necessary to provide full coverage of the needs of the child. 4. The child support award may also include the payment of the following expenses not covered by the basic child support obligation: a. any extraordinary medical, dental or behavioral health expenses incurred on behalf of the children of the parties. Such extraordinary expenses are uninsured expenses in excess of one hundred dollars ($10(1) per child per year; b. any extraordinary educational expenses for children of the parties; and c. transportation and communication expenses necessary for long distance visitation or time sharing. E. Orders for Provision of Goods and/or Services 1. The child support obligation calculated under the guidelines may, under order of the Court or as agreed in writing by the parties, be satisfied in whole or in part through the provision of goods and/or services to the custodial parent. The Court shall determine the reasonable monetary value of the goods and services and deduct this amount from the child support obligation determined by the guidelines. The cost of non-necessary gifts which are not agreed upon by the parents shall not be subtracted from a child support obligation. 2. Absent other findings by the Court, where the non-custodial parent has sufficient disposable income, monetary payments should be preferred as easier to record, enforce, and use to satisfy the specific needs of the child. 3. Absent other findings by the Court, where the non-custodial parent has little disposable income and can contribute more to the child through provision of goods and services than in monetary payments, orders to satisfy child support obligations through the provision of goods and services should be preferred. 4. Orders that goods and services be delivered to the household of the child or the custodial parent should not be made if there is evidence that the non-custodial parent poses a threat to any member of the household. F. Deviations from Guidelines
b. Deviation is in the best interest of the child or children for whom the child support obligation is being established; and c. The Court states what award is recommended by application of the guidelines; and d. The Court states the amount of child support which is actually awarded after the deviation; and e. The Court makes written findings regarding items (a) through (d), above.
3. Whenever application of the child support guidelines set forth in this section requires a person to pay to another person more than forty percent of his gross income for current, non-delinquent support of a single child, there shall he a presumption of substantial hardship. 4.
Unemployment shall not be a cause for a finding of substantial
hardship where the court determines that the person contesting
application of the guidelines is voluntarily unemployed, having
declined to accept or pursue employment opportunities reasonably
open to the respondent based on his or her ability and local
employment opportunities. In such cases, is the court shall
impute to the respondent that amount of income that the respondent
is reasonably capable of earning and calculate a child support
award based on this imputed income.
This Schedule is only part of the overall guidelines and must be used together with the accompanying information.
SCHEDULE OF BASIC CHILD SUPPORT OBLIGATION This Schedule is only part of the overall guidelines and must be used together with the accompanying information.
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