THIRD-PARTY CUSTODY AND APPLICATION OF INDIAN CHILD WELFARE

ACT In third-party custody proceedings filed in family court, the following additional rules apply: (a) Petition. Every petition shall contain a statement alleging whether the child is or may be an Indian child as defined in the federal Indian Child Welfare Act, United States Code, title 25, sections 1901 to 1963 (ICWA), or the Minnesota Indian Family Preservation Act, Minnesota Statutes, sections 260.751 to 260.835 (MIFPA), and shall describe the due diligence used to determine whether the child is an Indian child under ICWA or MIFPA. Petitioner has an ongoing obligation to notify the court of any information that provides reason to know the child is or may be an Indian Child as defined by ICWA or MIFPA. (b) Court Inquiry. The court has an affirmative obligation to inquire of every participant at the commencement of the proceeding whether the participant knows or has reason to know that the child is an Indian Child under either ICWA or MIFPA. Responses to the inquiry should be on the record. If the court is unable to determine that the child is or is not an Indian child but has reason to know as defined in Code of Federal Regulations, title 25, section 23.107(c), that the child is an Indian child, the court shall direct the petitioner to further investigate the child's ancestry or heritage and, pending the results of the investigation, shall treat the matter as if ICWA or MIFPA applies, as applicable. (c) Orders and Decrees. Every order or decree shall contain a finding that ICWA and MIFPA do or do not apply. Where there is a finding that ICWA or MIFPA does apply, the decree or order must also contain findings that all notice, scheduling, appointment of counsel, active efforts, evidentiary requirements, consent, intervention rights, transfer obligations, and placement preference requirements under ICWA and MIFPA as applicable have been satisfied. (d) Public Access. The following third-party custody proceeding records are not accessible to the public: (1) notice of pending court proceedings provided by the petitioner pursuant to the Indian Child Welfare Act, United States Code, title 25, section 1912, and any response to that notice from an Indian tribe or the Bureau of Indian Affairs as to whether the child is eligible for tribal membership, including documents such as family ancestry charts, genograms, and tribal membership information; and (2) records made inaccessible under other applicable law or court rule. (Added effective January 15, 2024.) Advisory Committee Comment - 2023 Amendments