2023 Montana Code Annotated › Title 41. Minors › Chapter 3. Child Abuse and Neglect › Part 13. Montana Indian Child Welfare Act › 41-3-1310. Jurisdiction -- transfer of jurisdiction

41-3-1310. (Temporary) Jurisdiction -- transfer of jurisdiction.
(1) An Indian tribe has exclusive jurisdiction over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of that tribe unless:
(a) the tribe has consented to the state's concurrent jurisdiction pursuant to Public Law 280 or 25 U.S.C. 1919;
(b) the tribe has expressly declined to exercise its exclusive jurisdiction; or
(c) the state is exercising emergency jurisdiction in compliance with 41-3-1325.
(2) If an Indian child is already a ward of a tribal court at the start of the child custody proceeding, the Indian tribe may retain exclusive jurisdiction regardless of the residence or domicile of the child.
(3) Except as provided in subsection (5), in a child custody proceeding involving an Indian child who is not residing or domiciled within the reservation of the Indian child's tribe, the court shall, in the absence of good cause to the contrary, transfer the proceeding to the jurisdiction of the Indian child's tribe on the motion of any of the following:
(a) either of the Indian child's parents;
(b) the Indian child's Indian custodian; or
(c) the Indian child's tribe.
(4) If the Indian child's tribe has not formally intervened, the moving party shall serve a copy of the motion and all supporting documents on the tribal court to which the moving party seeks transfer.
(5) If either of the Indian child's parents objects to transfer of the proceeding to the Indian child's tribe, the court may not transfer the proceeding.
(6) (a) If a state court believes or any party asserts that good cause to deny transfer exists, the reasons for that belief or assertion must be provided orally or in writing on the record and to the parties to the child custody proceeding. Any party to the child custody proceeding must have the opportunity to provide the court with the reasons that good cause exists to deny transfer of the proceeding.
(b) In determining whether good cause exists, the court may not consider:
(i) whether the child custody proceeding is at an advanced stage;
(ii) whether there have been prior proceedings involving the child for which no petition to transfer was filed;
(iii) whether transfer could affect the placement of the child;
(iv) the child's cultural connections with the tribe or its reservation; or
(v) socioeconomic conditions or any negative perception of the tribal or bureau of Indian affairs social services or judicial systems.
(c) If the court denies transfer of jurisdiction, the court shall state its reasons for the denial orally on the record or in a written order.
(7) (a) Following entry of an order transferring jurisdiction to the Indian child's tribe and pending receipt of a tribal court order accepting jurisdiction, the state court:
(i) may conduct additional hearings and enter orders that are in the best interests of the child and strictly comply with the requirements of the federal Indian Child Welfare Act and this part; and
(ii) may not enter a final order in a child custody proceeding, except an order dismissing the proceeding and returning the Indian child to the care of the parent or Indian custodian from whose care the child was removed.
(b) On receipt of an order from a tribal court accepting jurisdiction, the court shall:
(i) dismiss the child custody proceeding with prejudice; and
(ii) expeditiously provide the tribal court with all records related to the proceeding, including but not limited to the pleadings and any court record. The state court shall work with the tribal court to ensure the transfer of the custody of the Indian child and the proceeding is accomplished smoothly and in a way that minimizes the disruption of services to the family.
(8) If the Indian child's tribe accepts jurisdiction, the state court shall enter an order relieving the office of the state public defender and any public defender assigned pursuant to 41-3-425 and 47-1-104 from further representation.
(9) If the Indian child's tribe declines jurisdiction, the state court shall enter an order vacating the order transferring jurisdiction and proceed with adjudication of the child custody proceeding in compliance with the federal Indian Child Welfare Act, this part, and any applicable state-tribal agreement. (Terminates June 30, 2025--sec. 55, Ch. 716, L. 2023.)
History: En. Sec. 6, Ch. 716, L. 2023.