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2016 California Rules of Court

Rule 5.483. Transfer of case

(a) Mandatory transfer of case to tribal court with exclusive jurisdiction

The court must order transfer of a case to the tribal court of the child's tribe if:

(1)The Indian child is a ward of the tribal court; or

(2)The Indian child is domiciled or resides within a reservation of an Indian tribe that has exclusive jurisdiction over Indian child custody proceedings under section 1911 or 1918 of title 25 of the United States Code.

(b) Presumptive transfer of case to tribal court with concurrent state and tribal jurisdiction

Unless the court finds good cause under subdivision (d), the court must order transfer of a case to the tribal court of the child's tribe if the parent, the Indian custodian, or the child's tribe requests.

(c) Documentation of request to transfer a case to tribal court

The parent, the Indian custodian, or the child's tribe may request transfer of the case, either orally or in writing or by filing Notice of Petition and Petition to Transfer Case Involving an Indian Child to Tribal Jurisdiction (form ICWA-050).

If the request is made orally, the court must document the request and make it part of the record.

(d) Cause to deny a request to transfer to tribal court with concurrent state and tribal jurisdiction

(1)One or more of the following circumstances constitutes mandatory good cause to deny a request to transfer:

(A)One or both of the child's parents objects to the transfer in open court or in an admissible writing for the record;

(B)The child's tribe does not have a "tribal court" or any other administrative body as defined in section 1903 of the Indian Child Welfare Act: "a court with jurisdiction over child custody proceedings and which is either a Court of Indian Offenses, a court established and operated under the code or custom of an Indian tribe, or any other administrative body of a tribe which is vested with authority over child custody proceedings;" or

(C)The tribal court of the child's tribe declines the transfer.

(2)One or more of the following circumstances may constitute discretionary good cause to deny a request to transfer:

(A)The evidence necessary to decide the case cannot be presented in the tribal court without undue hardship to the parties or the witnesses, and the tribal court is unable to mitigate the hardship by making arrangements to receive and consider the evidence or testimony by use of remote communication, by hearing the evidence or testimony at a location convenient to the parties or witnesses, or by use of other means permitted in the tribal court's rules of evidence or discovery;

(B)The proceeding was at an advanced stage when the request to transfer was received and the petitioner did not make the request within a reasonable time after receiving notice of the proceeding, provided the notice complied with statutory requirements. Waiting until reunification efforts have failed and reunification services have been terminated before filing a request to transfer may not, by itself, be considered an unreasonable delay;

(C)The Indian child is over 12 years of age and objects to the transfer; or

(D)The parents of a child over five years of age are not available and the child has had little or no contact with his or her tribe or members of the child's tribe.

(3)If it appears that there is good cause to deny a transfer, the court must hold an evidentiary hearing on the transfer and make its findings on the record.

(Subd (d) amended effective January 1, 2013.)

(e) Evidentiary considerations

The court may not consider socioeconomic conditions and the perceived adequacy of tribal social services, tribal probation, or the tribal judicial systems in its determination that good cause exists to deny a request to transfer to tribal court with concurrent state and tribal jurisdiction.

(Subd (e) amended effective January 1, 2013.)

(f) Evidentiary burdens

(1)The burden of establishing good cause to deny a request to transfer is on the party opposing the transfer.

(2)If the court believes, or any party asserts, that good cause to deny the request exists, the reasons for that belief or assertion must be stated in writing, in advance of the hearing, and made available to all parties who are requesting the transfer, and the petitioner must have the opportunity to provide information or evidence in rebuttal of the belief or assertion.

(Subd (f) amended effective January 1, 2013.)

(g) Order on request to transfer

(1)The court must issue its final order on the Order on Petition to Transfer Case Involving an Indian Child to Tribal Jurisdiction (form ICWA-060).

(2)When a matter is being transferred from the jurisdiction of a juvenile court, the order must include:

(A)All of the findings, orders, or modifications of orders that have been made in the case;

(B)The name and address of the tribe to which jurisdiction is being transferred;

(C)Directions for the agency to release the child case file to the tribe having jurisdiction under section 827.15 of the Welfare and Institutions Code;

(D)Directions that all papers contained in the child case file must be transferred to the tribal court; and

(E)Directions that a copy of the transfer order and the findings of fact must be maintained by the transferring court.

(Subd (g) amended effective January 1, 2016.)

(h) Advisement when transfer order granted

When the court grants a petition transferring a case to tribal court under Welfare and Institutions Code section 305.5, Family Code section 177(a), or Probate Code section 1459.5(b) and rule 5.483, the court must advise the parties orally and in writing that any appeal to the order for transfer to a tribal court must be made before the transfer to tribal jurisdiction is finalized and that failure to request and obtain a stay of the order for transfer will result in a loss of appellate jurisdiction.

(Subd (h) adopted effective January 1, 2016.)

(i) Proceeding after transfer

When, under Welfare and Institutions Code section 305.5, Family Code section 177(a), or Probate Code section 1459.5(b), the court transfers any proceeding listed in rule 5.480, the court must proceed as follows:

(1)Dismiss the proceeding or terminate jurisdiction if the court has received proof that the tribal court has accepted the transfer of jurisdiction;

(2)Make an order transferring the physical custody of the child to a designated representative of the tribal court (not necessarily the same "designated representative" identified in the Notice of Designation of Tribal Representative and Notice of Intervention in a Court Proceeding Involving an Indian Child (form ICWA-040)); and

(3)Include in the Order on Petition to Transfer Case Involving an Indian Child to Tribal Jurisdiction (form ICWA-060) all contact information for the designated tribal court representative.

(Subd (i) relettered effective January 1, 2016; adopted as subd (h).)

Rule 5.483 amended effective January 1, 2016; adopted effective January 1, 2008; previously amended effective January 1, 2013.

Advisory Committee Comment

Once a transfer to tribal court is finalized as provided in rule 5.483(i), the appellate court lacks jurisdiction to order the case returned to state court (In re M.M. (2007) 154 Cal.App.4th 897).

As stated by the Court of Appeal in In re M.M., the juvenile court has the discretion to stay the provisions of a judgment or order awarding, changing, or affecting custody of a minor child "pending review on appeal or for any other period or periods that it may deem appropriate" (Code Civ. Proc., § 917.7), and the party seeking review of the transfer order should first request a stay in the lower court. (See Nuckolls v. Bank of California, Nat. Assn. (1936) 7 Cal.2d 574, 577 [61 P.2d 927] ["Inasmuch as the [L]egislature has provided a method by which the trial court, in a proper case, may grant the stay, the appellate courts, assuming that they have the power, should not, except in some unusual emergency, exercise their power until the petitioner has first presented the matter to the trial court."].) If the juvenile court should deny the stay request, the aggrieved party may then petition this court for a writ of supersedeas pending appeal. (Cal. Rules of Court, rule 8.112).

Subsection (h) and this advisory committee comment are added to help ensure that an objecting party does not inadvertently lose the right to appeal a transfer order.

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