Get Answers to Your Highest Priority South Dakota Legal Questions
Have questions? We have answers! Our South Dakota attorneys answer the questions they hear most often from clients just like you.
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What factors does a South Dakota court take into consideration when determining child custody?
In awarding child custody, a South Dakota court shall consider what appears to be in the best interests of the child while taking into consideration the child's temporal, mental, and moral welfare.
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In South Dakota, can my child's opinion influence the court's decision in determing custody?
Possibly. Under South Dakota law, if the child is of an age in which he or she can form an intelligent preference, the court may consider that preference in determining the question of custody.
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What is the Indian Child Welfare Act (ICWA)?
The Indian Child Welfare Act (ICWA) is a federal law that seeks to keep American Indian children with American Indian families. Congress passed ICWA in 1978 in response to the high number of Indian children being removed from their homes by both public and private agencies.
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What is the intent of the Indian Child Welfare Act (ICWA)?
The intent of Congress under ICWA was to "protect the best interests of Indian children and to promote the stability and security of Indian tribes and families." ICWA sets federal requirements that apply to state child custody proceedings involving an Indian child who is a member of or eligible for membership in a federally recognized tribe.
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How does the Indian Child Welfare Act (ICWA) protect Native American children in South Dakota?
When ICWA applies to a South Dakota child’s case, the child’s tribe and family will have an opportunity to be involved in decisions affecting services for the Indian child. A tribe or a parent can also petition to transfer jurisdiction of the case to their own tribal court. ICWA sets out federal requirements regarding removal and placement of Indian children in foster or adoptive homes and allows the child’s tribe to intervene in the case.
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In South Dakota, who is covered by the Indian Child Welfare Act (ICWA)?
Indian children involved in South Dakota child custody proceedings are covered by ICWA. A person may define his or her identity as Indian but in order for ICWA to apply, the involved child must be an Indian child as defined by the law. ICWA defines an "Indian child" as "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." Under federal law, individual tribes have the right to determine eligibility, membership, or both. However, in order for ICWA to apply, the child must be a member of or eligible for membership in a federally recognized tribe.
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What type of South Dakota court proceedings does the Indian Child Welfare Act (ICWA) not apply to?
ICWA does not apply to South Dakota divorce proceedings, intra-family disputes, juvenile delinquency proceedings, or cases under tribal court jurisdiction.
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My child and I live in Sioux Falls. How do I know if my child is eligible for tribal membership under the Indian Child Welfare Act (ICWA)?
All tribes have the right to determine who is a member of their tribe, and different tribes have different requirements for eligibility. In order to understand these requirements for the particular tribe in question, you should contact the child's tribe.
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My child is Indian but is not a member of a federally recognized tribe. Would the Indian Child Welfare Act (ICWA) still apply?
Probably not. If your child does not meet ICWA's definition of "Indian child," ICWA would not apply to your child’s case. Other federal and state laws, however, may provide other protections, including relative placement provisions and the opportunity to be heard in a case review hearing.
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What considerations should the State of South Dakota make in an Indian Child Welfare Act (ICWA) case?
Caseworkers in South Dakota must make several considerations when handling an ICWA case, including:
- Providing "active efforts" to the family
- Identifying a placement that fits under the ICWA preference provisions
- Notifying the child’s tribe and the child’s parents of the child custody proceeding
- Working actively to involve the child’s tribe and the child’s parents in the proceedings.