Indian Custodian

Ted W. v. State, 204 P.3d 333 (Alaska, 2009): 
Full text of the decision can be accessed here.

In this case, Father’s rights had been terminated by the state court. After his rights were terminated, Mother, whose rights had not been terminated, allowed Father to have extensive visitation with the child.  This went on for several years.  One day, when Father went to return the child to the Mother, he found out that all of her children had been taken into the State’s custody. The Father said that shortly before this happened that Mother asked him to take care of the child because "she didn't want the state involved with [the child’s] life." The child continued to live with Father on a full-time basis for several months until OCS removed the child from Father’s care and filed a Child in Need of Aid (“CINA”) case. (Father had a lengthy criminal history and was a known sex offender. The State therefore did not feel the child was safe in his care.) Mother, Father and the child were all members of or eligible for membership in an Alaska Native tribe.

Father argued that he should be a party to the new Child in Need of Aid case because he was an “Indian Custodian” as defined by ICWA. ICWA defines an Indian Custodian as “an Indian person who has legal custody of an Indian child under tribal law or custom or under State law or to whom temporary physical care, custody, and control has been transferred by the parent of such child.”   At first, Mother and the State agreed that the Father was the child’s Indian Custodian because Mother had temporarily transferred the child to Father’s care. However, later in the CINA case, Mother and the State jointly asked the Court to terminate the Father’s status as Indian Custodian. The judge agreed to do this. Father appealed to the Supreme Court. The Supreme Court agreed with the trial court.  It said that Father no longer met the definition of Indian Custodian because: the basis for Father’s status as an Indian custodian was Mother’s temporary transfer of the child to his care, Mother possessed the authority to revoke the transfer at any time before the State took custody of the child, and Mother and the State acted jointly to rescind the earlier transfer.

Bottom line:  A parent can rescind a transfer of custody to an Indian Custodian even after the State has taken custody of a child.