Either parent may petition the Tribal Court for resolution of a child custody dispute. The Tribal Court shall refer the parents to mediation to develop a parenting plan on the basis of the best interests of the child. In determining the best interests of the child, the mediator shall consider all relevant factors including those factors enumerated in Article I of this chapter.
(A) Before ordering a parenting plan, the Court shall determine whether one (1) parent is entitled to preference in the awarding of custody. Custody preference shall be measured by the best interests of the child.
(B) If the Tribal Court finds by clear and convincing evidence that a parent or child is a victim of family violence, the Tribal Court may make an order that adequately provides for the safety of the victimized parent, including any of the following:
(1) The address and telephone number of the parent or child be kept confidential in the proceedings;
(2) An exchange of the child to occur in a protected setting;
(3) Visitation be supervised by another person or agency with any conditions of visitation stated specifically within the order. The perpetrator may be ordered to pay a fee to defray the costs of supervised visitation;
(4) The perpetrator of family violence attend and complete a family violence batterer’s program and/or counseling;
(5) Prohibit overnight visitation;
(6) Require a bond from the perpetrator of family violence for the return and safety of the minor child;
(7) Order that the perpetrator of family violence cannot remove the child from “on or near Tribal lands” as defined in KTC 10.10.030 during visitation.
(C) If the Tribal Court finds by clear and convincing evidence that a parent habitually or frequently uses a controlled substance or alcohol, the Court may make an order that the parent undergo periodic drug or alcohol testing by the Division of Behavioral Health Services, or the Court probation officer, prior to visitation.
(1) The person administering the test must notify the testing parent immediately of the results, and must notify the other parent by phone or in person as soon as possible if the results are positive. It will be the responsibility of each parent to ensure that the Court and the testing agency have current contact information.
(2) A positive drug screen will automatically cancel the visitation.
(3) The results of this testing are confidential, and must be placed as a sealed record in the Court file, and may not be released to any person except the Court, the parties, their attorneys, and any person to whom the Court expressly grants access by written order made after prior notice to all parties. Any person who has access to the test results may not distribute copies or disclose information about the test results to any person other than a person who is authorized to receive the test results pursuant to this section. Any breach of the confidentiality of test results may be punishable by civil sanctions not to exceed three hundred dollars ($300).
(4) Any person ordered to drug test under this section has a right to a hearing, if requested, to challenge a positive result. The request must be made at the time the person is initially told of the positive result.
(5) Any person ordered to drug test under this section may request a retest of the sample, at their own expense, to challenge a positive result. The request must be made at the time the person is initially told of the positive result.
(6) The results of testing may not be used for any purpose, including any criminal, civil, or administrative proceeding, except to assist the Court in determining for purpose of any order determining custody or visitation in the best interest of the child pursuant to subsection (A) of this section.
(D) The objectives of any proposed or ordered parenting plan shall be:
(1) To provide for the child’s physical care and to maintain the child’s emotional stability;
(2) To provide for the child’s changing needs as the child grows;
(3) To promote and preserve the child’s Indian heritage and to provide for the maintenance of the child’s Tribal affiliation;
(4) To set forth the authority and responsibilities of each parent consistent with the restrictions noted in subsection (H) of this section;
(5) To minimize the child’s exposure to harmful parental conflict;
(6) To encourage parents to meet their responsibilities through the parenting plan rather than by relying on Tribal Court intervention; and
(7) To otherwise protect the best interests of the child consistent with the policy expressed in subsection (A) of this section.
(E) The contents of any proposed or ordered parenting plan shall include:
(1) A process for resolving disputes, other than Tribal Court action, shall be provided unless it is beyond the financial means of the parties, or precluded or limited by the Tribal Court as provided herein. The dispute resolution process may include counseling, mediation, peacemaking, family unity, arbitration or other method agreed upon by the parties. In the dispute resolution process:
(a) Preference shall be given to carrying out the parenting plan;
(b) The parents shall use the designated process to resolve disputes relating to implementation of the plan, except those related to child support, unless there is an emergency;
(c) If the Tribal Court finds that a parent has used or frustrated the dispute resolution process without good reason, the Tribal Court may impose financial sanctions against that parent; and
(d) Both parents have the right of court review of the dispute resolution process.
(2) The parenting plan shall allocate decision-making authority to one (1) or both parents regarding the children’s education, health care, and religious or spiritual upbringing. The plan shall state that:
(a) Each parent may make decisions regarding the day-to-day care and control of the child while the child is residing with that parent, including emergency decisions affecting the health and safety of the child; and
(b) When mutual decision-making is designated but cannot be achieved, the parents shall make a good faith effort to resolve the issue through the dispute resolution process.
(3) The residential schedule shall designate in which parent’s home each child shall reside on given days of the year, including provisions for holidays, birthdays, vacations and other special occasions.
(F) If a parent fails to comply with a provision of the parenting plan, the other parent’s obligations under the parenting plan are not affected.
(G) The Tribal Court may authorize and approve the utilization of a uniform parenting plan form for all proceedings under this article.
(H) The Tribal Court may restrict or limit any provision of a parenting plan based on factors or conduct that the Court finds by a preponderance of the evidence is adverse to the best interests of the child, including:
(1) Willful abandonment that continues for an extended period of time or substantial refusal to perform parenting functions;
(2) Physical, sexual or a pattern of emotional abuse of a child;
(3) A history of acts of family violence;
(4) An assault or sexual assault that causes grievous bodily harm or the reasonable fear of such harm;
(5) Neglect or substantial nonperformance of parenting functions;
(6) Long-term emotional or physical impairment that interferes with the parent’s performance of parenting functions;
(7) Long-term impairment resulting from drug, alcohol or other substance abuse that interferes with the performance of parenting functions;
(8) Abusive use of conflict by the parent that creates the danger of serious damage to the child’s psychological development;
(9) Withholding from the other parent access to the child for a protracted period without good cause; or
(10) Such other factors as the Tribal Court expressly finds adverse to the best interests of the child.
(I) If a party offers evidence of abuse, neglect or family violence, the Court shall schedule a separate hearing to consider such evidence. Prior to the hearing, the Court shall provide confidential notice to the parties that accusations of abuse, neglect, or family violence have been raised. At the hearing, the accused party may offer evidence of rehabilitation or other circumstances to rebut the presumption that placement with that party is not in the best interests of the child. If the accused party fails to appear or does not offer evidence, the Court may only make a finding of abuse, neglect, or family violence by clear and convincing evidence.
(1) If the Court makes a finding of abuse, neglect, family violence, or substance abuse by either or both parents, the Court may recommend that the parties seek appropriate treatment, services or training. The success of any remedial or rehabilitative efforts will be reviewed under subsection (J) of this section.
(J) If the parents are unable to reach agreement on the terms of the parenting plan and the Tribal Court determines that it needs additional information before ordering a parenting plan, the Tribal Court may:
(1) Interview the child in chambers to ascertain the child’s needs and desires. The Tribal Court may permit counsel to be present at the interview. The Tribal Court shall cause a record of the interview to be made and to be made part of the record in the case; and/or
(2) Seek the advice of the Tribe’s Department of Human Services. Human Services shall evaluate the parents’ ability to provide adequate food, clothing, shelter, medical care, love and emotional support, and day-to-day supervision. The evaluation should also report on circumstances indicating any conduct outlined in subsection (I) of this section. The advice given shall be in writing and shall be made available by the Tribal Court to counsel upon request. Counsel may call for cross-examination of any persons consulted by the Tribal Court.
(K) In ordering a permanent parenting plan, the Tribal Court shall not draw any presumptions from the provisions of a temporary parenting plan or separation agreement.
(L) If the issue of child custody is before the Tribal Court at the time it issues a judgment under Article IV of this chapter, the Tribal Court shall concurrently issue a parenting plan under this article.