The Swier Law Firm Family Law FAQs

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.

Caseworkers in South Dakota must make several considerations when handling an ICWA case, including:

1. Providing "active efforts" to the family
2. Identifying a placement that fits under the ICWA preference provisions
3. Notifying the child’s tribe and the child’s parents of the child custody proceeding
4. Working actively to involve the child’s tribe and the child’s parents in the proceedings.

The State of South Dakota is required to provide "active efforts" to families, and the court will be asked to determine whether "active efforts" have been made.  The exact definition of "active efforts" is left open under ICWA to accommodate individual case decisions.  (However, federal guidelines do exist - Federal Register, Vol. 44, No. 228, Monday, November 26, 1979).

ICWA mandates that South Dakota make "active efforts" in two areas:

1. Provide services to the family to prevent removal of an Indian child from his or her parent or Indian custodian
2. Reunify an Indian child with his or her parent or Indian custodian after removal.

A fundamental consideration in applying "active efforts" is active and early participation and consultation with the child's tribe in all case planning decisions.  Also, "active efforts" is more than just "reasonable efforts."  For example, reasonable efforts might be only a referral for services, but "active efforts" would be to arrange for the best-fitting services and help families engage in those services.

ICWA applies to three types of Indian child custody proceedings.

Types of Indian Child Custody Proceedings

Foster care placements.

ICWA applies to the temporary removal of an Indian child from his or her home, for placement in a foster home or institution, when the parent or Indian custodian (defined as an Indian person with custody of the child under tribal or state law or who has the child pursuant to a parental placement) cannot regain custody upon demand (25 U.S.C. 1903(1)). The latter provision exempts ICWA application from voluntary religious or school placements, as well as voluntary placements with private or public agencies where the parent or custodian can regain custody at any time. However, ICWA would apply to a guardianship in which a child is placed with a nonparent, as this fits the definition of a foster care placement.

Termination of certain parental rights.

ICWA applies to any proceeding that may result in the termination of the parental rights of the Indian child's parents or the custodial rights of the child's Indian custodian, including stepparent adoption proceedings and delinquency proceedings that lead to an attempt to terminate parental rights. (These generally are not governed by ICWA.)

Pre-adoption placements and adoption placements.

ICWA applies to proceedings that lead up to and culminate in the adoption of an Indian child. It imposes an obligation on both public and private adoption agencies to comply with its provisions.

Under South Dakota law, when an attorney or litigant is in immediate need of a judicial signature and no appropriate circuit judge or magistrate judge is present or available, the signature may be acquired in the following manner: (1) the attorney or litigant may telephonically contact a circuit judge or magistrate judge who has jurisdiction and relate to such judge the verbatim contents of the document requiring signature. If the judge approves the document, the judge shall telephonically contact the clerk of courts and authorize that official to sign the document on his behalf; or (2) the attorney or litigant may contact the clerk of courts who shall then attempt to contact an authorizing judge and read the proposed document verbatim to ascertain whether such judge will authorize the clerk to sign for him. The document shall clearly show the signing of the signature by the authorized official. Although a signature acquired by this procedure shall have the same force and effect as if the judge had signed personally, a copy shall be forwarded to the authorizing judge for co-signing. The co-signed document shall be filed with the clerk of courts. The authorizing judge shall also endorse on the co-signed copy the reasons for authorizing the foregoing procedure.

In South Dakota, a court may change the venue of trial or hearing in postjudgment divorce, paternity, or separate maintenance actions if:

             (1)      The parties no longer reside in the county where the action was decided; or

             (2)      The parties agree; or

             (3)      Convenience of witnesses or the ends of justice would be promoted by the change.

Under South Dakota law, if a minor child receives social security or veteran's dependent benefits as a result of the obligor's disability, or social security retirement benefits from the obligor, the obligor is entitled to a credit to the amount of the monthly support obligation.

In South Dakota, if a parent is employed full-time at a rate of pay that equals or exceeds the state's minimum wage, it is presumed that a parent's second job income is not to be considered in establishing a support obligation.  However, this presumption may be rebutted by evidence that the income source was available to pay expenses related to the child when the parent initially became obligated for the support of the child.

Under South Dakota law, if the parents of a child have agreed to a change in the physical custody of the child without the court's approval, the parent who relinquished physical custody may be ordered to pay child support to the parent who gained physical custody of the child even though the custody order has not been modified to reflect the change in custody.

In South Dakota, if a parent in a child support modification proceeding fails to furnish income or other financial information, the parent is in default, and that parent's income for determining child support is computed at a rate not less than the most recent annual pay standard as reported by the Department of Labor and Regulation.