§ 15.03 SCOPE OF ICWA
Subject to certain exceptions, the Indian Child Welfare Act applies to any state court child custody proceeding that could or does result in the placement of an Indian child in an institution or in the home of a person other than the child's parent(s). 25 U.S.C. § 1903; In re Adoption of M., 66 Wn. App. 475, 832 P.2d 518 (1992). However, when either a state or federal law provides greater protection to the rights of the parent or Indian custodian of an Indian child than the rights provided under the ICWA, the more protective law shall apply. 25 U.S.C. § 1921; In re Custody of C.C.M., 149 Wn. App. 184, 202 P.3d 971 (2009) (applying 25 U.S.C. § 1921 to the preference provided parents in a nonparental custody dispute under Chapter 26.10 RCW).
[1] Child Custody Proceedings
Under the Act, a "child custody proceeding" includes any proceeding that may culminate in foster care placement, termination of parental rights, preadoptive placement, or adoptive placement. 25 U.S.C. § 1903(1), 25 C.F.R. § 23.2(1). A foster care placement is broadly defined to mean any action that removes an Indian child from the parent or Indian custodian for temporary placement in a foster home, institution, or home of a nonparent guardian or custodian, when the parent or Indian custodian cannot have the child returned upon demand, but when parental rights have not been terminated. 25 U.S.C. § 1903(1)(i). The Indian Child Welfare Act does not apply in divorce proceedings as long as custody is awarded to one of the parents. See Malaterre v. Malaterre, 293 N.W.2d 139 (N.D. 1980). [Note: ICWA and Chapter 13.38 RCW (WICWA) define parent as any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom. This does not include an unwed father when paternity has not been acknowledged or established. 25 U.S.C. § 1903; RCW 13.38.040.] This exclusion does not apply to other intrafamily custody disputes, however.
ICWA applies to guardianship of a minor. See RCW 11.130.250; see also RCW 13.38.040. Note that prior to January 1, 2021, nonparents or third parties seeking custody of an Indian child would have done so under Chapter 26.10 RCW, now repealed. For guidance on application of ICWA when a nonparent seeks custody, see In re Mahaney, 146 Wn.2d 878, 51 P.3d 776 (2002).
In Mahaney, the mother, a member of Tlingit-Haida Indian Tribe, and non-Indian father voluntarily placed their two children with the paternal grandmother and executed authorizations for temporary legal custody of the children. Both children were eligible for membership in the tribe. The grandmother filed a petition for custody under Chapter 26.10 RCW (now repealed) and was awarded temporary, nonparental custody in 1994. The mother objected to the award. Trial did not occur until 1999. The trial court awarded the grandmother permanent legal custody but provided for a 90-day review and ordered the mother to engage in remedial services directed toward possible reunification. After trial, the mother challenged the award, claiming the ICWA's higher burden of proof should have been applied. In response to that challenge, the trial court retroactively applied the Act's clear and convincing evidentiary standard to the evidence and ruled that the standard was met. In affirming the custody award, the Supreme Court held that placement with the grandmother, pursuant to Chapter 26.10 RCW, was a "foster care placement" under the ICWA because "the children were in custody where they were not returnable [to the mother] on demand." Mahaney, 146 Wn.2d at 889. The court held that the placement preference priority under the ICWA was satisfied when the children were placed with an "extended family" member—their grandmother—and that the ICWA does not require the family member to have Native American status. The court also held that the ICWA (1) required the trial court to apply the clear and convincing standard to determine that custody of the children by the...
