A: The Center for Families, Children & the Courts (CFCC) merged the Judicial Council's Statewide Office of Family Court Services and the Center for Children and the Courts. The primary purpose of CFCC is to maximize the effectiveness of court services for children and families. CFCC also increases public access, implements innovative court-related programs for children and families, and promotes those services in the legal community and to the public. CFCC works closely with the Judicial Council Family and Juvenile Law Advisory Committee.
A: CFCC can be reached at telephone number 415-865-7739. The fax number is 415-865-7217. The mailing address is: The Judicial Council, Center for Families, Children & the Courts, 455 Golden Gate Ave., 6th Floor, San Francisco, CA 94102-3660. You may also reach CFCC via e-mail at: CFCC@jud.ca.gov.
A: The Judicial Council of California, located in San Francisco, has openings for internship opportunities for law and research, policy, and social/liberal arts students at the graduate level with the Center for Children, Families & the Courts (CFCC). The work hours are flexible to accommodate individuals' availability; however, the student must be available to work a minimum of 12 hours per week for research/policy students and 16 hours per week for law students.
A: Legal agencies and attorneys can assist you with your legal matter. If you can afford an attorney, look in the yellow pages of the phone book under "Attorney Referral Services" or "Attorneys." For information regarding local bar associations and other law links, visit the California Bar website: http://www.calbar.ca.gov/
A: A bar association is a nonprofit voluntary membership organization of lawyers, judges, law students, and other members in related fields. In general, they provide equal access to the justice system for all members of our society. Bar associations can facilitate lawyer referrals, and some associations may directly represent indigent clients through volunteer legal services.
A: You can check the Government Listings in your telephone book white pages, under Courts for your city or county. You can also find the listings for the state Supreme Court and Court of Appeal in your district under State Government/Courts. To find the address and telephone number of trial courts on the Internet, go to the Trial Courts section online by clicking here. You can use the pull-down menu to locate courts with Web sites. On this page, you can also use the list of California Trial Court Judges to locate the address and telephone number of each county court location. Counties are listed alphabetically, and within each county, judges’ names are listed alphabetically, with the presiding judge listed first.
A: If the case is in juvenile court, the file is confidential. Certain parties directly connected to the case may have access to a juvenile court file. In certain circumstances, the court may order access to a juvenile court file. If the case is in family court, the file can be obtained through the court clerk’s office.
A: California legislative information is available online at http://www.leginfo.ca.gov. The site contains bill information, California law, legislative publications, contact information for the Legislature, Legal Counsel agency reports, and information about the legislative process.
A: No. There may be an old form that is still valid. In addition, until the form is adopted, it may violate California Rules of Court. You can locate online information about the use of legal forms by clicking here.
A: You can find new and revised forms available online and also at your local court clerk’s office. Forms may be accessed by category or by form number. You can also locate a list of legal forms on-line. The new and revised forms cannot be filled out online but must be printed out and then filled out.
A: Your comments will be sent to the staff counsel of the appropriate Judicial Council committee or subcommittee. Rules, forms, and standards of judicial administration are circulated for comment twice a year for adoption, generally effective January 1 and July 1.
A: No. CFCC cannot provide legal advice, and therefore, it does not have the authority to provide an interpretation of a statute or rule of court.
A: The rules of any court can be found at your local law library. Some local court rules are also available on the Internet. If your jurisdiction has not posted its rules of court, you may want to contact your local law library or the court. The California Rules of Court are available on the Judicial Council’s website.
A: The new and amended rules are listed under New and Amended Rules. This link will allow you to view the most current changes without having to review the entire set of rules. In addition, it is possible to search the entire rules document for specific subjects.
A: The following programs have been certified by the Judicial Council:
The fifth calculator on this list was created by the California Department of Child Support Services (DCSS). There are two versions of this calculator. The first is integrated into DCSS' case management system for use by local child support agency staff and child support commissioners in calculating support for cases open in the local child support agency. The second is the public version, is on the internet and is freely accessible to all. For detailed instruction on how to use this guideline calculator, see DCSS' California Guideline Child Support Calculator User Guide. DCSS developed this calculator as a condition of receiving federal funding for the child support program. California Rule of Court 5.275(j) requires that in all title IV-D child support cases (when the local child support agency provides services), DCSS' calculator be used by the parties and attorneys to present support calculations to the court, as well as by the court to prepare support calculations. While DCSS' calculator must be used in all title IV-D cases, parties and attorneys are free to use it in any other proceeding involving child support. The federal Office of Child Support Enforcement requires that courts use the internal guideline calculator, starting November 30, 2008.
A: Only one program, the California Guideline Child Support Calculator (DCSS) can be used in Title IV-D proceedings. As a condition of federal funding of the child support program in California, the State of California through DCSS was required to develop a statewide automated case management system. Federal specifications for this system included the development of a child support calculator that was integrated as a part of the DCSS case management system. A findingwas issued under 45 C.F.R. sections 307.10(b) and 307.11 that requires California courts to only use and accept calculations prepared on DCSS's California Guideline Child Support Calculator. Beginning on December 1, 2008, courts in Title IV-D proceedings must use the Internal Guideline Calculator, while the public and attorneys may continue to use the public version, which is located on the DCSS Web site. As of January 1, 2009, California Rules of Court rule 5.275(j) provides as follows:
(j) Acceptability in the courts
(1) In all actions for child or family support brought by or otherwise involving the local child support agency under title IV-D of the Social Security Act, the Department of Child Support Services' California Guideline Child Support Calculator software program must be used by:
(A) Parties and attorneys to present support calculations to the court; and
(B) The court to prepare support calculations.
(2) In all non-title IV-D proceedings, the court may use and must permit parties or attorneys to use any software certified by the Judicial Council under this rule.
A: No, the Center for Families, Children & the Courts does not maintain adoption records.
A: You may contact the California Department of Social Services Adoptions Support Unit at telephone number 916- 651-8089. The mailing address is: California Department of Social Services, Adoptions Support Unit, 744 P Street MS 8-12-31, Sacramento, CA 95814. Also check CDSS' Children and Family Services Division's Web site, www.childsworld.ca.gov for information.
A: The Department does not accept telephone requests. Written requests for adoption forms can be mailed to: Department of Social Services, P.O. Box 980788, West Sacramento, CA 95798.
A: Judicial Council Forms is located in the Forms & Rules section. Above the button “See Forms,” click the “Adoption” field. Then click “See Forms.”
A: The state Legislature, recognizing that adoptive parents often experience financial difficulty meeting the needs of former foster care children, created the Adoption Assistance Program (AAP) to remove or reduce financial barriers to the adoption of children who cannot otherwise find secure, permanent homes. The program is intended to meet the specific needs of individual children for both basic care and specialized care. For additional information, write: Adoptions Policy Bureau Chief (MS 19-69), Adoptions Branch, California Department of Social Services, 744 P Street Sacramento, CA 95814 and/or Sierra Adoptions, P.O. Box 361, Nevada City, CA 95959 (www.sierraadoption.org).
A: Eligibility is determined on a case-by-case basis. An AAP grant amount is based upon the combination of the child’s needs and the family’s resources. Either a county that provides its own adoption services or the California Department of Social Services (CDSS) district office determines the eligibility for participation in the program. These agencies also negotiate a signed adoption assistance agreement with the adoptive parents. The agreement stipulates the need, the amount of AAP benefit, the duration of the assistance, and a renewal date, which cannot exceed two years from the date of the agreement.
A: Yes. At the renewal date, or anytime beforehand, a request for a change in benefits can be submitted.
A: Yes. The AAP moneys will not exceed the amount the child would receive if he or she were still in foster care. There is no means test for an adoptive family, and the grant is a negotiated amount based on the needs of the child and the circumstances of the family. The AAP-eligible child will receive a basic care grant and any state-approved specialized care increment for which the child would have been eligible in foster care. The child is assessed, using the foster care assessments, at his or her current level of need as if the child had not been adopted and were currently in the foster care system.
A: The funding sources are the county, the state, and the federal government. For a child who is not federally eligible, AAP is paid 25 percent in county dollars and 75 percent in state dollars. For a child who is federally eligible, AAP is paid 12.5 percent in county dollars, 37.5 percent in state dollars, and 50 percent in federal dollars.
A: A child may qualify for both SSI and AAP. The combination of the two benefits may not exceed the amount the child would have received in foster care. For SSI eligibility purposes, AAP funding is considered income. Therefore, AAP funding is deducted from SSI. (In other words, AAP benefits are "primary.")
A: The SCI is a subsidy that is intended to defray the extraordinary costs of adopting a child with special needs. SCI funds are available for costs related to the child’s specific disabilities. Examples of extraordinary costs include transportation, therapy, and repair of excessive damage or destruction.
A: No. Modoc, Sierra, and Plumas Counties do not receive SCI funding; all other counties do. However, a change (made in January 2001) in the California Regulations allows the SCI rate to be based on either the county that is financially responsible for the child or the adoptive parents' county of residence.
A: Reassessment is a process for providing the adoption agency with an update on the family’s circumstances and the needs of the child. It is also an opportunity to renegotiate the AAP amount based on the family’s changing circumstances and needs.
A: Reassessment can be requested by the family or an adoption agency. A family may request recertification anytime. The public adoption agency must recertify at least every two years. A family would request recertification (1) if there were a change in the child’s needs justifying an increase or decrease in the grant amount; (2) if there were a change in family circumstances, such as income, employment, divorce, etc.; or (3) if there were a change in the number of dependent family members. An agency would request recertification if the date agreed upon in the AAP agreement has been reached or if the agency learns of a change in family circumstances. Either a family or the agency would request recertification if it has been a maximum of 2 years since the last recertification or the child has been placed in out-of-home care and is receiving a grant greater than the basic foster care grant. If the agency requests recertification, families must return their recertification form by the due date.
A: A fair hearing is a legal resolution process that is used when the family and the agency have a disagreement. This is the forum in which individuals receiving benefits from the government can present their perspective when a change or a denial of certain benefits occurs.
A: You can request a hearing by contacting the State Fair Hearing Board at the California Department of Social Services, Administrative Adjudications Division (MS-19-36, 744 P Street, Sacramento, CA 95814 Telephone: 1-800-743-8525.
A: There are two aspects to the QEW’s testimony; (1) harm to the child and (2) the cultural standards within the child’s tribe.
The central question that QEW testimony must address is whether continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. (25 U.S.C. § 1912 (e) and (f)) The Bureau of Indian Affairs Guidelines for State Courts; Indian Child Custody Proceedings, published in the Federal Register (44 Fed. Reg. 67,584 (Nov. 26, 1979) (“Guidelines for State Courts”) further clarify that there are two aspects to this issue. First, is it likely that the conduct of the parents will result in serious physical or emotional harm to the children? Second, if such conduct will likely cause such harm, can the parents be persuaded to modify their conduct? (Guidelines for State Courts, D.4)
California law further clarifies that in making the determination about whether continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child, the court must consider evidence concerning the prevailing social and cultural standards of the Indian child’s tribe, including that tribe’s family organization and child rearing practices. (Welf. & Inst. Code § 224.6 (b)(2))
A: ICWA requires the testimony of a qualified expert witness in the following circumstances: (1) before a state court can make an involuntary order for foster care placement; (2) before a state court can involuntarily terminate parental rights of the parent of an Indian child; (3) in California if a party is seeking to deviate from the ICWA placement preferences based on the needs of the child.
(25 U.S.C. § 1912 (e) and (f); Welf. & Inst. § 224.6)
A: In passing ICWA in 1978, Congress noted the alarmingly high rate at which Indian children were removed from their families by child welfare authorities. Further, congress noted that these removals were often unwarranted and resulted from cultural bias or a misunderstanding of tribal family structures and childrearing practices rather than any real danger to the children. Testimony before congress stated that:
One of the most serious failings of the present system is that Indian children are removed from the custody of their natural parents by nontribal government authorities who have no basis for intelligently evaluating the cultural and social premises underlying Indian home life and childrearing. Many of the individuals who decide the fate of our children are at best ignorant of our cultural values, and at worst contemptful (sic.) of the Indian way and convinced that removal, usually to a non-Indian household or institution, can only benefit an Indian child.
The requirement for QEW testimony to address the cultural values and childrearing practices of the Indian child’s tribe was meant to prevent these unwarranted removals.
A: Under section 1912 of the Indian Child Welfare Act (“ICWA”), 25 U.S.C. § 1901 et seq. the testimony of a Qualified Expert Witness (QEW) is required to support some of the required judicial findings.
A: The Indian Child Welfare Act (ICWA) gives the Indian child’s tribe the right to intervene in a proceeding “at any stage”. (25 U.S.C. § 1911 (c)) The tribe can appear by counsel or may be represented by a non-attorney designated by the tribe to intervene on its behalf. (Cal. Rules of Court, Rule 5.534(i). Tribes may clarify the authority of a tribal representative by resolution or other tribal documentation in accordance with the governing procedures of the tribe. (Judicial Council Form ICWA-040 Notice of Designation of Tribal Representative and Notice of Intervention in a Court Proceeding Involving an Indian Child)
Courts have held that the federal ICWA preempts state laws which would otherwise require representation by an attorney. These cases hold that a non-attorney tribal representative may sign pleadings on behalf of the tribe and present evidence at court hearings.(See State v. Jennifer M., 277 Neb. 1023, 1024 (2009); State ex rel Juvenile Department of Lane County v. Shuey, 119 Ore.App. 185 (1993); In the Interest of N.N.E., 752 N.W.2d 1 (2008).)
A: ICWA stands for Indian Child Welfare Act. (25 U.S.C. § 1901 et seq.) ICWA is a multifaceted federal statute that sets minimum federal standards for most state court proceedings involving custody of Indian children. It includes provisions addressing tribal rights and opportunities, Indian social and cultural considerations, and procedural and substantive protections for Indian children, their parents and Indian custodians. This act implements the federal government’s trust responsibility to Indian children and tribes by protecting and preserving the bond between Indian children and their tribe and culture. Congress passed ICWA to address the misuse of state child protection power in removing Indian children and placing them with non-Indian families
Click here to learn more about the ICWA Initiative.
A: Yes. The Center for Families, Children & the Courts tribal projects unit provides information and technical assistance and draws together resources on ICWA.
Click here to view more ICWA resources and materials from the tribal projects unit.
Click here to view ICWA California rules of court, forms, federal laws and other materials.
A: No. Both tribes and government agencies use multiple criteria to determine the eligibility of an Indian to be a tribal member or participate in certain programs. To determine what the criteria are for specific tribes or agencies, you must contact them directly. Formal enrollment is not required in order for a person to be a member of, or be eligible for membership in, a tribe and come within the scope of ICWA.
A: The Indian Child Welfare Act says that it applies to all of these kinds of actions:
The Indian Child Welfare Act says that it applies to all of these kinds of actions:
1. Foster care placements. According to ICWA, "foster care placement" refers to any action that removes an Indian child from his or her parents or Indian custodian for temporary placement in a foster home or institution, or in the home of a guardian or conservator, and in which the Indian parent or custodian cannot have the child returned upon demand, but parental rights have not been terminated. (25 U.S.C. § 1903(1)(i).)
2. Termination of parental rights. ICWA includes in the category of termination of parental rights any action that results in the termination of the parent-child relationship. Both voluntary and involuntary proceedings are included. (25 U.S.C. § 1903(1)(ii).)
3. Preadoptive placements. ICWA defines a preadoptive placement as the temporary placement of an Indian child in a foster home or an institution after the termination of parental rights but prior to or in lieu of an adoptive placement. (25 U.S.C. § 1903(1)(iii).)
4. Adoptive placements. ICWA defines an adoptive placement as the permanent placement of an Indian child for adoption, including any action that may result in a final decree of adoption. (25 U.S.C. § 1903(1)(iv).) In determining adoptive placements, a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child's extended family; (2) other members of the Indian child's tribe; or (3) other Indian families. (25 U.S.C. § 1915(a).)
In terms of proceedings in California, this means that ICWA applies to:
1. Dependency. ICWA applies to these proceedings whenever there is or may be a foster care placement or termination of parental rights. (Welf.. & Inst. Code, § 224.3.)
2. Delinquency and Status Offenses. ICWA applies to these proceedings if the placement is based on an act that is not a crime if committed by an adult, including such things as truancy. ICWA also applies in any delinquency case in which the child is in foster care or at risk of entering foster care or termination of parental rights is being considered. (Welf.. & Inst. Code, §§ 727.4 and 224.3.)
3. Family Code Section 3041 Placements and Termination of Parental Rights. ICWA applies to proceedings under the Family Code that could award custody of an Indian child to a nonparent (or Indian custodian), such as placements under section 3041 of the Family Code. It also applies to any proceedings under the Family Code that would result in the termination of parental rights to an Indian child, such as an adoption including step-parent adoption.
4. Probate Guardianships and Conservatorships. ICWA applies to guardianships and conservatorships which involuntarily remove Indian children from the custody and care of their parents or Indian custodians.
The above references to the Indian Child Welfare Act, and family, probation, and WIC codes can be conveniently found here.
A: ICWA does not apply to all child custody disputes. For example, it does not apply to custody disputes between parents in divorce or dissolution proceedings. However, an action by one parent to terminate parental rights of the other parent is covered by the act. A divorce proceeding may be covered if a third party seeks custody as in proceedings under the Family Code or Probate Code described above under “What type of proceedings are covered by ICWA?”. The issue of whether ICWA applies to family law custody disputes between parents who were never married is unsettled.
A: ICWA sets minimum federal standards and requirements that must be followed in state court proceedings to which it applies. In particular ICWA requires:
The above references to the Indian Child Welfare Act, and family, probation, and WIC codes can be conveniently found here.
A: ICWA promotes the best interests of Indian children by promoting long term connections to their families and Indian communities. ICWA presumes that it is in the best interest of Indian children to maintain a connection with their tribes. The two purposes of ICWA are "to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families. . . ." (25 U.S.C. § 1902.)
To protect the best interest of Indian children, the following objectives of the act should be considered: (1) jurisdictional provisions and intervention rights designed to enhance tribal control and involvement in Indian child custody cases, (2) the adoption of minimum federal standards for the removal of Indian children from their families, (3) the placement of Indian children in Indian homes, and (4) the support of tribal child and family service programs.
The Indian child has an interest in his or her tribe; therefore, Congress has sought to protect Indian children by imposing minimum federal standards designed to ensure that cultural bias and misunderstanding do not adversely affect an Indian child’s relationship with his or her Indian family and tribe.
A: Under ICWA there are a variety of ways in which a tribe may participate in a child custody proceeding:
A: A tribe may intervene at "any point in the proceeding." (25 U.S.C. § 1911(c); Fam. Code. § 177(a); Prob. Code. § 1459.5(b); Welf.. & Inst. Code § 224.4.) Tribes have a right to intervene in state court proceedings falling under ICWA. Once they intervene, tribes become a party to the proceedings.
Note that tribal intervention is not required in order for ICWA to apply to a proceeding nor for a tribe to assert many of the rights set out above under “What rights to a child’s tribe have?”.
The above references to the Indian Child Welfare Act, and family, probation, and WIC codes can be conveniently found HERE.
A: Yes. A tribe may petition at any time to invalidate a proceeding conducted in violation of designated provisions of the act.
A: If an Indian child is involved in a proceeding covered by the act, the act applies, whether or not the child’s tribe decides to become involved. A tribe may elect to participate in a state court proceeding in several capacities, including (1) filing a petition to transfer the case to a tribal forum, (2) exercising rights granted under the act to alter the minimum federal standards (See Q&A “What difference does it make in a case when ICWA applies?”), (3) intervening as a party at any point in an Indian child’s custody proceeding covered by the act, (4) providing evidence and testimony, and (5) providing services in certain cases when a tribe operates child and family service programs.
A: Both attorneys and nonattorneys can appear on behalf of a tribe. Tribes may clarify the authority of a tribal representative by resolution or other tribal documentation in accordance with the governing procedures of the tribe. (Judicial Council Form ICWA-040 Notice of Designation of Tribal Representative and Notice of Intervention in a Court Proceeding Involving an Indian Child)
Indian Child Welfare Act forms can be conveniently found HERE.
A: Currently there is no one list of Indian tribes authorized to exercise exclusive jurisdiction over Indian Child Welfare Act cases. You can get information on tribal courts at the tribal project’s unit webpage.
You can contact the tribe or tribal court directly to discuss whether the tribe exercises exclusive jurisdiction over Indian Child Welfare Act cases pursuant to ICWA and in particular 25 U.S.C. § 1911.
A: There are more than 550 federally recognized tribes in the United States and more than 100 federally recognized tribes in California. Federally recognized tribes have a special legal relationship with the U.S. government, known as a government-to-government relationship. The number of federally recognized tribes is growing because a tribe can gain recognition by successfully petitioning the federal government under the regulations governing federal acknowledgment or, in some cases, by securing status clarification from the Bureau of Indian Affairs through litigation or legislation.
A: The Bureau of Indian Affairs is the best resource for locating a particular tribe. The bureau's Web site is http://www.bia.gov/. Its telephone number is 202-208-3711, and its mailing address is: Department of the Interior, Bureau of Indian Affairs Office of Public Affairs, 1849 C Street NW, Washington, DC 20240-0001. You can also follow the link from the tribal project’s unit website.
Under the terms of ICWA and its implementing regulations, the Department of the Interior publishes in the Federal Register a list of Designated Tribal Agents for Service of Notice under the Indian Child Welfare Act. Click here to view the most current list.
A: Training programs produced for family court professionals by the Center for Families, Children & the Courts are for court staff only. The funds that support this training are dedicated to developing court-connected staff.