Requirements of the Indian Child Welfare Act
Overview
The Indian Child Welfare Act (ICWA) is a federal law that sets minimum standards for the removal of Native American children from their homes. The ICWA applies to foster care placements, terminations of parental rights, and adoption and pre-adoption placements. When the ICWA applies to a proceeding, a state court must comply with the requirements of the act.
Requirements
* Notice. The child's parent, tribe, and "Indian custodian" must be notified by registered mail of proceedings involving involuntary foster care placement or involuntary termination of parental rights. An Indian custodian is a person who has legal custody of the child according to tribal or state law.
* Intervention. The child's tribe and Indian custodian have a right to intervene, or participate, in proceedings involving voluntary or involuntary foster care placement or voluntary or involuntary termination of parental rights.
* Counsel. The child's parent or Indian custodian has a right to a court-appointed attorney if he cannot afford one.
* Expert Testimony. In proceedings involving involuntary foster care placement or involuntary termination of parental rights, the ICWA requires the testimony of an expert witness who is familiar with Native American culture.
* Remedial Measures. In proceedings involving involuntary foster care placement or involuntary termination of parental rights, the state must prove that it has taken remedial measures with the child's family in an effort to avoid the placement or termination.
* Standard. A state court cannot order involuntary foster care placement or an involuntary termination of parental rights unless the state proves that the child would be seriously harmed if he remained in the parent's custody.
Noncompliance
If a state court fails to comply with the requirements of the ICWA, the court's order may be set aside.
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