Red
Lake Court of Indian Offenses
Code – “Revisions
July 25, 2001”
800.01
Marriage a Civil Contract
800.02
Persons Capable of
Contracting
800.07
Application for License
801.01
Void or Voidable
Marriages
801.05
Residence of
Complainant
801.06
Action - How and Where
Brought
801.07
Requisites of Complaint
801.10
Temporary Alimony or
Support Money; Costs and Disbursement
801.11
Protection of The
Parties
801.12
Custody of Children
During Pendency
801.13
Custody and Support of
Children on Judgment
801.14
Visitation of Children
and Noncustodial Parent
801.16
Effect of Divorce; Name
of Wife
801.17
Alimony, Support &
Property
801.18
Alimony or Support
Money
801.19
Minor Children, Support
RED LAKE NATION TRIBAL COURT CHILD
SUPPORT PAYMENT GUIDELINES GUIDELINES MONTHLY PAYMENTS
801.20
Disposition of Property
Acquired During Coverture
801.21
Household Goods,
Furniture and Other Property
801.24
Alteration of Order or
Decrees
801.25.
Modification of
Support.
802.05
Notice, Hearing on
Petition
802.06
Petition; Investigation
804.03
Petition Requesting
Protection
805.02
Parent and Child
Relationship
805.04
Establishment of
Parent/Child Relationship
805.06
Presumption of
Paternity
805.07
Determination of
Father/Child Relationship
805.09
Blood and Genetic Tests
CHAPTER 806 DOMESTIC
CHILD ABUSE
806.02
Procedure for Domestic Child Abuse
807.03 Persons
Mandated to Report
807.05 Immunity from
Liability
807.08 Duties of
Local Welfare Agency upon Receipt of a Report
Marriage is a civil contract to which the consent of the parties is essential. Lawful marriage hereafter may be contracted only when a license has been obtained therefor as provided by this ordinance and when such marriage is contracted in the presence of two witnesses and solemnized by one authorized, or whom the parties in good faith believe to be authorized, so to do. Marriages subsequent to the final enactment of this Chapter not so contracted shall be null and void.
Every Indian male person who has attained the full age of eighteen (18) years, and every Indian female person who has attained the full age of eighteen (18) years, is capable of contracting marriage, if otherwise competent. An Indian male person of full age of sixteen (16) years may, with the consent of his parents, guardian, or the court, as provided in this Chapter, receive a license to marry. An Indian female person of the full age of sixteen (16) years may, with the consent of her parents, guardian, or the court, as provided in this Chapter, receive a license to marry, when, after a careful inquiry into the facts and the surrounding circumstances, her application for a license is approved by the judge of the Red Lake Court of Indian Offenses.
No marriage shall be contracted while either of the parties has a husband of wife living; nor between parties who are nearer than second cousins; whether of the half or whole blood, nor between persons either one of whom is imbecile, feeble-minded, insane or of the same sex; nor between persons one of whom is a male person under eighteen (18) years of age or one of whom is a female person under the age of sixteen (16) years; nor between persons both of whom have not been resident of the Red Lake Reservation for a period of thirty (30) days; nor between persons if one of the parties is not a member of the Red Lake Band of Chippewa Indians.
Marriage may be solemnized by any judge of the Red Lake Court of Indian Offenses or any licensed or ordained minister of the gospel in regular communion with a religious society or by traditional Indian marriage ceremony conducted by an Indian duly authorized to conduct such ceremony by the Tribal Council.
Every person authorized by law to perform the marriage ceremony, before solemnizing any marriage, may examine the parties on oath, which oath s/he is authorized to administer, as to the legality of such intended marriage, and no such person shall solemnize a marriage unless s/he is satisfied that there is no legal impediment thereto.
Before any Indian persons shall be joined in marriage, a license shall be obtained from the Clerk of the Red Lake Court of Indian Offenses.
Application for a marriage license shall be made at least five (5) days before a license shall be issued. Such application shall contain the full names of the parties, their residence addresses and their full ages. The clerk shall examine upon oath the party applying for license relative to the legality of such contemplated marriage and, if at the expiration of this five-day period, s/he is satisfied that there is no legal impediment thereto, s/he shall issue such license containing the full names of the parties and addresses and make a record of the date of issuance thereof, which license shall be valid for a period of six month. In case of emergency or extraordinary circumstances, the judge of the Red Lake Court of Indian Offenses may authorize the license to be issued at any time before the expiration of the five days. If a male person intending to marry shall be under the age of eighteen (18) and shall not have had a former wife, such license shall not be issued unless the consent of the parents or guardians or the parent having the actual care, custody and control of said party shall be given under the hand of such parent or guardian and duly verified by the Clerk of the Red Lake Court of Indian Offenses. Provided, that if there be no parent or guardian having actual care, custody and control of said party, then the judge of the Red Lake Court of Indian Offenses may, after hearing, upon proper cause shown, make an order allowing the marriage of said party. The clerk shall collect from the applicants a fee of $20.00 for administering the oath, issuing, recording and filing all papers required. If the license should not be used within the period of six (6) months due to illness or other extenuating circumstances, it may be surrendered to the Clerk of the Red Lake Court of Indian Offenses for cancellation and in such case a new license shall issue upon request of the parties of the original license without fee therefor.
In the solemnization of marriage no particular form shall be required, except that the parties shall declare in the presence of a person authorized by this Chapter to solemnize marriages, and the attending witnesses that they take each other as husband and wife. In each case at least two witnesses shall be present besides the person performing the ceremony.
The person solemnizing a marriage including traditional Indian marriage ceremony shall prepare under his/her hand three (3) certificates thereof. Each certificate shall contain the full married names and county and state of residences of the parties and the date and place of the marriage. Each certificate shall also contain the signatures of at least two (2) of the witnesses present at the marriage who shall be at least sixteen (16) years of age. The person solemnizing the marriage shall give each of the parties one (1) such certificate, and shall immediately make a record of such marriage, and file one (1) such certificate with the Clerk of the Red Lake Court of Indian Offenses within five (5) days after the ceremony. The clerk shall record such certificate in a book kept for that purpose.
All marriages which are prohibited by law on account of consanguinity, or on account of either or both parties being under the age established for marriage, or on account of either party having a former husband or wife then living, if solemnized, shall be absolutely void, without any decree of divorce or other legal proceedings; provided, that if any person whose husband or wife has been absent for five (5) successive years, without being known to such person to be living during that time, marriages during the lifetime of such absent husband or wife, the marriage shall be void only from the time that its nullity is duly adjudged.
When either party to a marriage is incapable of assenting thereto for want of age or understanding, or when the parties have not been resident of the Red Lake Reservation at the time of the marriage, or if either of the parties at the time of the marriage were of the same sex, or when the consent of either has been obtained by force or fraud, and there is no subsequent voluntary cohabitation of the parties, the marriage may be annulled at the suit of the injured party, and shall be void from the time its nullity is adjudged.
When the validity of a marriage is disputed for any of the causes mentioned in Section 1 or 2, either party, if a resident of the Red Lake Indian Reservation, may begin an action in the Red Lake Court of Indian Offenses to annul the same. In such action the complaint shall be filed and proceedings had thereon as in actions for divorce and, upon die proof of the nullity of the marriage, it shall be adjudged null and void.
A divorce from the bonds of matrimony may be adjudged by the Red Lake Court of Indian Offenses for any of the following:
a) Adultery;
b) Impotency;
c) A course of conduct detrimental to the marriage relationship of the party seeking the divorce;
d) Sentence to imprisonment in any state or United States prison or any state or United States reformatory subsequent to the marriage; and in such case a pardon shall not restore the conjugal rights;
e) Willful desertion for one (1) year next preceding the commencement of the action;
f) Habitual drunkenness for one (1) year immediately preceding the commencement of the action;
g) Three (3) years commitment to a mental institution for mental illness;
h) Continuous separation under decree of limited divorce for more than five (5) years next preceding the commencement of the action and continuous separation under an order or decree of separate maintenance for a period of two (2) years immediately preceding the commencement of the action; or
I) A decree of divorce may be adjudged to either husband or wife notwithstanding that both have conducted themselves in such manner as to constitute grounds for divorce.
No divorce shall be granted unless the plaintiff has resided on the Red Lake Indian Reservation for a period of six (6) months immediately preceding the filing of the complaint.
All actions for divorce shall be commenced by filing a complaint in the Red Lake Court of Indian Offenses and payment of the requisite filing fee in the amount of $50.00.
The complaint shall state:
a) The names and ages of the parties, the date and place of marriage, and the facts relating to the residence of the plaintiff on the Red Lake Indian Reservation.
b) The names and dates of birth of the minor and dependent children of the parties.
c) The grounds of the action.
d) That no other action for divorce between the parties is pending in any other court.
Copies of the summons and complaint shall be served on the defendant personally, and, when such service is made off the Red Lake Indian Reservation and within the United States, it may be proved by the affidavit of the person taking the same, but, if personal service cannot well be made, the Court may order service of the summons by publication, which publication shall be made by publishing for three (3) consecutive weeks in the local newspaper on the Red Lake Indian Reservation.
The defendant shall have thirty (30) days in which to answer the complaint. In case of service by publication, the thirty (30) days shall not begin to run until the expiration of the period allowed for publication.
In any action brought either by divorce or separate maintenance, the Court, in its discretion, may require one party to pay a reasonable amount, necessary to enable the other spouse and the children during its pendency. The Court may adjudge costs and disbursements against either party.
When an action is commenced, or about to be commenced, to annul a marriage, or for a divorce or separation, the Court may, at any time, on the petition of either party, prohibit the parties from imposing any restraint on the personal liberty of the parties during the pendency of the action.
The Court, on the application of either party, may make such order concerning the care and custody of the minor children of the parties, and their suitable maintenance, during the pendency of such action, and such temporary orders relative to the persons or property of the parties, as shall be deemed necessary and proper.
Upon adjudging the nullity of a marriage, or divorce or separation, or subsequent to a paternity action, the Court may make such further order as it deems just and proper concerning the care, custody and maintenance of the minor children of the parties and may determine with which of the parents they, or any of them, shall remain, having due regard to the age and sex of such children and the children's relationship with each parent prior to the commencement of the action. In determining the parent with whom a child shall remain, the court shall consider all facts in the best interest of the children and shall not prefer one parent over the other solely on the basis of the sex of the parent. In determining the appropriate amount of child support to be paid by each parent, the court shall consider the factors set forth in Section 801.19, Subdivision 4.
Neither direct nor constructive contempt orders shall be issued for enforcement of child support orders. Section 103.01 shall not apply to child support orders. Wage garnishments shall apply in lieu of contempt order. Wage garnishment shall include proper notice, summons, disclosure, exemptions and judgment.
(Section 801.13, amended by Resolution No. 33-93, dated February 9, 1993)
(Section 801.13, amended by Resolution No. 216-95 dated September 28, 1995)
Subdivision 1. In all divorce proceedings, subsequent to the commencement of the action and continuing thereafter during the minority of the child, the Court may, upon the request of the noncustodial parent, grant such rights of visitation as will enable the child and the non-custodial parent to maintain such child to parent relationship as will be beneficial to the child. The Court shall consider the age of the child and the child's relationship with the non-custodial parent prior to the commencement of the action. A parent's failure to pay support because of the parent's inability to do so shall not be sufficient cause for denial or visitation, unless such inability is willful.
Subdivision 2. Upon the request of either parent, the Court may inform any child of the parties, if eight (8) years of age or older, or otherwise of an age of suitable comprehension, of the rights of the child and the non-custodial parent under the order or decree or any substantial amendment thereof. The custodial parent shall present the child for visitation by the non-custodial parent, at such time as the Court directs.
Subdivision 3. The custodial parent shall not move the residence of the child off the Red Lake Reservation except upon order of the Court or with the consent of the non-custodial parent, when the non-custodial parent has been given visitation rights by the decree.
Subdivision 4. Proof of an unwarranted denial of or interference with duly established visitation may constitute Contempt of Court and may be sufficient cause for reversal of custody.
When a divorce has been granted, and the parties afterward inter-marry, the Court, upon their joint application, and upon satisfactory proof of such marriage, may revoke all decrees and orders of divorce, alimony and subsistence which will not affect the rights of third persons.
When a decree of divorce from the bonds of matrimony is granted such decree shall completely dissolve the marriage contract as to both parties. In all actions for divorce brought by a women, if a divorce is granted, the Court may change the name of such women, who shall thereafter be known by such name as the Court designated it in its decree.
Definitions:
Subdivision 1. Terms. For the purposes of Sections 17 to 24 the terms defined in this Section shall have the meanings respectively ascribed to them.
Subdivision 2. Child. "Child" means an individual under eighteen (18) years of age, or an individual who, by reason of his physical or mental condition, is unable to support himself.
Subdivision 3. Alimony. "Alimony" means an award made in a divorce proceeding of payments from the future income or earnings of one spouse for the support and maintenance of the other spouse and may include the rendering of goods and services.
Subdivision 4. Support Money. "Support Money" means an award in a divorce or annulment proceeding, or a subsequent paternity action, for the care, support and education of any child of the marriage or of the parties to the annulment proceeding or a subsequent paternity action and may include the rendering of goods and services for the benefit of the child. The obligor may furnish in-kind goods or services in lieu of court ordered support money under the conditions set forth herein. To qualify for in-kind contributions, the Obligor's net monthly income shall be less than $695.00. In-kind contributions may include furnishing wood suitable for residential heating purposes or food, including deer, fish and wild rice. The recipient shall place a value on the goods or services rendered. If the Obligor disagrees with the value amount, he or she may petition the Court for an order determining the value of the in-kind goods or services furnished to the recipient.
Subdivision 5. Property Acquired During Coverture
"Property Acquired During Coverture" means, except as provided in this subdivision, any property, real or personal, acquired by the parties, or either of them, to a divorce or annulment proceeding at any time during the existence of the marriage relation between them, or at any time during which the parties were living together as husband and wife under a purported marriage relationship which is annulled in an annulment proceeding. Property acquired during coverture does not include any property real or personal, acquired by either spouse before, during or after coverture, where said property is acquired as a gift, bequest, devise or inheritance made by a third party to one but not to the other spouse, or any property transferred from one spouse to the other.
Subdivision 6. Income. "Income" means any form of periodic payment to an individual including, but not limited to, wages, salaries, payments to an independent contractor, commissions and pension payments. Workers compensation and unemployment compensation income shall be limited to a 15% deduction.
Subdivision 7. Obligor. "Obligor" means a person obligated to pay support.
(Section 801.17, Subd. 4 amended to Tribal Code and Subdivision 6 and 7 added to Tribal Code by Resolution No. 33-93, dated February 9, 1993)
Every award of alimony or support money is a judgment of divorce shall clearly designate whether the same is alimony or support money, or what part of the award is alimony and what part thereof is support money. Any award of payments from future income or earnings of the custodial parent shall presumed to be alimony. Any award of payments from the future income or earnings of the non-custodial parent shall presumed to be support money unless otherwise designated by the Court. In any judgment of divorce the Court may determine, as one of the issues of the case, whether or not either spouse is entitled to an award of alimony notwithstanding that no award is then made, or it may reserve jurisdiction of the issue of alimony for determination of a later date.
Subdivision 1. Upon a decree of divorce or annulment or a petition for child support the court may order as it deems just and proper concerning the support and maintenance of the minor children and may impose a lien or charge upon the property of the parties to such action.
Subdivision 2. Child Support Guidelines. The Court shall enter an award for child support payments in accordance with the provisions of this Section. The Court may order either or both parents owing a duty of support to a child to pay an amount of money which is reasonable or necessary for the child's support. This Section shall be limited to prospective child support payments calculated from the filing date of the petition. The Court shall derive a specific dollar amount for child support by multiplying the obligor's net income by the percentage indicated in the following guidelines:
Month of Obligor
1 2 3 4 5 6 7 or more
$550 and Below Order based on the ability of the obligor to provide
support at these income levels, or at higher levels,
if the obligor has the earning ability.
$551 - 600 16% 19% 22% 25% 28% 30% 32%
$601 - 650 17% 21% 24% 27% 29% 32% 34%
$651 - 700 18% 22% 25% 28% 31% 34% 36%
$701 - 750 19% 23% 27% 30% 33% 36% 38%
$751 - 800 20% 24% 28% 31% 35% 38% 40%
$801 - 850 21% 25% 29% 33% 36% 40% 42%
$851 - 900 22% 27% 31% 34% 38% 41% 44%
$901 - 950 23% 28% 32% 36% 40% 43% 46%
$951 - 1000 24% 29% 34% 38% 41% 45% 48%
$1001 - 5000 25% 30% 35% 39% 43% 47% 50%
Subdivision 3. For the purpose of this Section, "Net Income," is defined as: Gross income minus federal withholding tax, social security deductions (FICA), mandatory pension deductions, union dues, dependent health insurance coverage and individual health care coverage not more than $50.00.
Subdivision 4. In addition to the Child Support Guidelines, the Court may take into consideration the following facts in setting or modifying child support or in determining whether to deviate from the guidelines:
a) All earnings, income, and resource of the parents, including real and personal property.
b) The financial needs and resources, physical and emotional condition, and education needs of the child(ren) to be supported.
c) Whether or not the parents have separate households.
d) Which parent receives the income taxation dependency exemption and what financial benefit the parent receives from it.
e) The parents debts owed to private creditors, subject to Subdivision 8.
f) The non-custodial parent's earnings capacity based on past earnings or lack thereof.
Subdivision 5. The guidelines in this Section are a rebuttable presumption and shall be used in all cases when establishing or modifying child support. If the Court does not deviate from the guidelines, the Court shall make written findings concerning the amount of the obligor's income used as the basis for the guidelines calculation and any other significant evidentiary factors affecting the determination of child support. If the Court deviates from the guidelines, the Court shall make written findings giving the amount of support calculated under the guidelines, the reasons for the deviation, and shall specifically address how the deviation serves the best interest of the child.
Subdivision 6. If the Court finds that a parent is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of imputed income. A parent is not considered voluntarily unemployed or underemployed upon a showing by the parent that the unemployment or underemployment: (1) is temporary and will ultimately lead to an increase in income; or (2) presents a bona fide career change that outweighs the adverse effect of the parent's diminished income on the child. Imputed income means the estimated earning ability of a parent based on the parent's prior earnings history, education, and job skills, and on availability of jobs within the community for an individual with the parent's qualifications. If the Court is unable to determine or estimate the earning ability of a parent, the Court may calculate child support based on full-time employment of forty (40) hours per week at the federal minimum wage. If a parent is a recipient of public assistance or is physically or mentally incapacitated, it shall be presumed that the parent is not voluntarily unemployed or underemployed.
Subdivision 7. This Section shall be effective on passage. Those affected under this new law shall be entitled to child support increases consistent with the guidelines. In such cases, the Court shall increase child support payments by quarterly increments of 25% of the total increase until the appropriate level according to the child support guidelines are met.
Subdivision 8. In establishing or modifying a support obligation, the Court may consider debts owed to private creditors, but only if:
(1) the Court determines that the debt was reasonably incurred for necessary support of the child or parent or for the necessary generation of income. If the debt was incurred for the necessary generation of income, the Court shall consider only the amount of debt that is essential to the continuing generation of income; and
(2) the party requesting a departure produces a sworn schedule of the debts, with supporting documentation, showing goods or services purchased, the recipient of them, the amount of the original debt, the outstanding balance, the monthly payment, and the number of months until the debt will be fully paid, and such a sworn statement shall be submitted stating that the debt will be fully paid after the number of months shown in the schedule.
(Section 801.19, Subdivision 1 amended and Subdivision 2 added, by Resolution No. 33-93, dated February 9, 1993.)
(Section 801.19 new guidelines adopted by Resolution No. 168-95 dated August 8, 1995)
Upon a divorce for any cause, or upon an annulment, the Court may make such disposition of the property of the parties acquired during coverture as shall appear just and equitable, having regard to the nature and determination of the issues in the case, the amount of alimony or support money, if any, awarded in the judgment, the manner by which said property was acquired and the persons paying or supplying the consideration therefor, the charges or liens imposed thereon to secure payment of alimony or support money, and all the facts and circumstances of the case including that a land use permit may only be issued and owned by members of the tribe.
Upon a divorce for any cause, the Court may also award to either spouse the household goods and furniture of the parties, whether or not the same was acquired during coverture, and may also order and decree to either spouse such part of the real and personal estate of the other not acquired during coverture, not exceeding in present value one-half thereof, as it deems just and reasonable, having regard to the amount of property decreed under Section 20, the amount of alimony and support money awarded, if any, the character and situation of the parties, the nature and determination of the issues, and all other circumstances of the case.
Temporary alimony may be awarded as provided in Section 10 and temporary support money may be awarded as provided in Section 12 for the support of any children of the parties, including children as defined in Section 17, and the Court may also award to either party to the action, having due regard to all the circumstances and the party awarded the custody of the children, the right to the exclusive use of the household goods and furniture of the parties pending the action and the right to the use of the homestead of the parties, exclusive or otherwise, pending the action; and the Court may order and direct either party to remove from the homestead of the parties upon proper application of the Court for such order, pending the action.
The Court, having due regard to all the circumstances and the custody of any children of the parties, may award to either party the right of occupancy of the homestead of the parties, exclusive or otherwise, upon a final decree of divorce, or proper modification thereof, for such period of time as may be determined by the Court, and such award of the right to occupancy of the homestead, whether exclusive or otherwise, may be in addition to the maximum amount which may be awarded under Section 21.
After an order or decree for alimony or support money, temporary or permanent, the Court may from time to time, on petition of either of the parties revise and alter such order or decree respecting the amount of such alimony, and the payment thereof, and may make any order, respecting these matters which it might have made in the original action, except as herein otherwise provided. Except for an award of the right of occupancy of the homestead, all divisions of real and personal property provided herein shall be final, and subject only to the power of the Court to impose a lien or charge thereon at any time while such property, or subsequently acquired property, is owned by the parties or either of them, for the payment of alimony or support money.
(Section 801.24, amended to Tribal Code by Resolution No. 33-93, dated February 9, 1993)
Subdivision 1. The terms of an order respecting support may be modified upon showing to the Court of a substantial change in circumstances of the party(s) since the date of the support order. The Party seeking modification of a support order shall file with the court a motion, together with supporting affidavits, requesting a modification of the support order. The Court shall schedule a hearing, upon the motion, after notice to the adverse party(s) and may, in the discretion of the court, base its discretion upon the affidavits filed in the matter or require an evidentiary hearing.
Subdivision
2. Substantial
Change in Circumstances means:
a) Substantially increased or decreased earnings of the party;
b) Substantially increased or decreased need of a party or the child(ren) in the case;
c) Receipt of public assistance;
d) A change in the cost of living for either party as measured by the Federal Bureau of Statistics, any of which makes the terms of the support order unreasonable and unfair; or
e) Unemployment for a continuous and uninterrupted period of time exceeding twelve (12) months.
Subdivision 3. The Court shall consider the guidelines and factors set forth in Section 801.19 and shall not consider the financial circumstances of the obligor's current spouse in making its determination on the question of modification of a support order.
(Section 801.25, added to Tribal Code by Resolution No. 33-93, dated February 9, 1993)
All awards for support are a judgment of the Court. If the obligor shall fail to make a support payment, the past due payment shall become a judgment by operation of law on and after the date the payment is due. The person to whom the support payment is due may enforce the judgment for the unpaid amount of support in accordance with the provisions of this Code for the enforcement or collection of unpaid judgments.
(Section 801.26 Collection Procedures added to Tribal Code by Resolution No. 33-93, dated February 9, 1993)
For the purpose of Chapter 802, the terms defined in this Section shall have the following meanings.
Subdivision 1. Child. "Child" means a person under the age of eighteen (18) years.
Subdivision 2. Parent. "Parent" means the natural or adoptive parent of a child.
Subdivision 3. Petitioner. "Petitioner" means a person and his spouse, if any, petitioning for the adoption of any person.
Subdivision 4. Guardian. "Guardian" means a guardian of the person appointed by a Court.
Any Indian who has resided on the Red Lake Indian Reservation for one (1) year or more may petition the Court to adopt a child. The provisions as to length of residence on the Reservation may be waived by the Court when it appears to be for the best interests of the child.
The petition for adoption shall be signed by the Petitioner and, if married, by the petitioner's spouse. The petition shall allege:
a) The name, age and place of residence of the petitioner;
b) The facts establishing that petitioner is an Indian;
c) The date that petitioner acquired physical custody of the child and the circumstances surrounding the obtaining of such custody;
d) The date of birth of the child, if known, and the place of birth of the child;
e) A statement as to the child's race or ethnic heritage;
f) The name of the child's parents, if known, and the child's guardian if there be one;
g) The actual name of the child, if known, and any known aliases;
h) The name to be given the child if a change of name is desired;
i) A description and value of any real or personal property owned by the child;
j) The petitioner desires that the relationship of parent and child be established between petitioner and the child, and that it is in the best interests of the child for the child to be adopted by the petitioner.
Subdivision 1. No child shall be adopted without the consent of the child's parents and the child's guardian, if there be one, except under the following circumstances:
a) Consent shall not be required of a parent who has abandoned the child as determined by a Court.
b) Consent shall not be required of a parent whose parental rights to the child have been terminated by a Court.
Subdivision 2. If an unmarried parent who consents to the adoption of a child who is under eighteen (18) years of age, the consent of his/her parents or guardian may also be required in the discretion of the Court.
Subdivision 3. All consents to an adoption shall be in writing and shall be executed before two (2) competent witnesses who shall also sign the consent and shall be acknowledged by the consenting party. The consent shall be filed in the adoption proceeding at any time before the matter is heard by the Court.
Subdivision 4. A parent's consent to an adoption may be withdrawn for any reason within seven (7) days after the consent is executed and acknowledged. Written withdrawal of the consent must be received by the Court or if no adoption proceedings are pending, by the person who has physical custody of the child no later than the 7th day after the consent is executed and acknowledged. On the day following the 7th day after execution and acknowledgement, the consent shall become irrevocable, except upon an Order of the Court after finding that the consent was obtained by fraud.
Subdivision 1. The Court shall give notice of an adoption proceeding to:
a) The guardian, if any, of a child;
b) The parents of a child unless the parents consent to the adoption has been obtained or the consent of a parent need not be obtained pursuant to Section 802.04(1).
The notice of the hearing may be waived by a parent, guardian or other interested party by a writing executed before two (2) competent witnesses and duly acknowledged. The waiver shall be filed in the adoption proceeding at any time before the matter is heard.
Subdivision 2. The notice shall be served at least fourteen (14) days before the date of the hearing in the manner provided by law for the service of a summons in a civil action.
Subdivision 1. Upon the filing of a petition for adoption, the Clerk of Court shall immediately transmit a copy of the petition to the Red Lake Tribal Social Services Division for investigation and report. The Red Lake Tribal Social Services shall verify the allegations of the petition, investigate the conditions of the child for the purpose of ascertaining whether the child is a proper subject for adoption and ascertain whether the proposed home and petitioner and the child are suited for each other and determine whether or not, in its opinion, the proposed adoption would be in the best interests of the child. The Red Lake Tribal Social Services shall make a written report of its findings and recommendations to the Court of which report shall be confidential. The written report of the Court with its recommendations shall be submitted to the Court within ninety (90) days after receipt of the petition by the Red Lake Tribal Social Services.
Subdivision 2. All reports and records of the Red Lake Tribal Social Services bearing on the suitability of the proposed adoptive home, proposed adoptive parents and the child in relation to each other shall be confidential and shall not be disclosed either directly or indirectly to any person other than a judge of the Court having jurisdiction of the matter; provided however, that a judge of the Court having jurisdiction of the matter may, in his/her discretion, disclose any such report or record to a party to the proceeding or his representative when such report or record disapproves the granting of the adoption petition.
Subdivision 3. The investigation referred to in Subdivision 1 hereof may be waived by the Court when the petition for adoption is submitted by a step-parent or when, upon good cause being shown, the Court is satisfied that the proposed adoptive home and the child are suited to each other.
Subdivision 1. At the hearing.
a) If the Court finds that it is in the best interests of the child that the petition be granted, a decree of adoption shall be made and recorded in the office of the Clerk of Court. The decree shall order that the child shall be the child of the petitioner;
b) If the Court finds that the proposed adoption is not in the best interests of the child, the Court shall deny the petition, and shall enter and Order that the child be returned to the custody of the person or agency vested with custody of the child.
Subdivision 2. The policy of the Red Lake Band of Chippewa Indians in adoption proceedings is to ensure that the best interests of children are met by requiring due consideration of the child's race and ethnic heritage. In considering the child's race and ethnic heritage, the Court shall, in adoption proceedings, give preference to the following, in the absence of good cause to the contrary:
a) To a relative or relatives of the child or if that would be detrimental to the child or a relative is not available;
b) To a family with the same racial or ethnic heritage as the child, or if that is not feasible,
c) To a family of different racial or ethnic heritage from the child, but which are knowledgeable and appreciative of the child's racial or ethnic heritage.
If the child's natural parent or parents shall request that the preference described in clause a or in clause b not be followed, the Court shall honor the request as long as it is consistent with the best interests of the child.
Subdivision 3. All hearings held pursuant to Chapter 802 shall be confidential and shall be held in closed Court without admittance of any persons other than the petitioners, their witnesses, a representative of the Red Lake Tribal Social Services, counselors for the parties and persons entitled to notice pursuant to Section 802.05; except, the Court may order admittance of other persons.
Subdivision 4. The files and records of the Court in adoption proceedings shall not be open to inspection by any person; except, upon an Order of the Court expressly so permitting such inspection pursuant to a petition setting forth the reasons why the inspection is being requested.
Any Order, judgment or decree of the Court entered pursuant to Chapter 802 may be appealed by any person against whom the order, judgment or decree is made or who is affected by it as in other civil cases.
Subdivision 1. Upon a decree of adoption being entered by the Court, the child shall become the legal child of the adopting person or persons and they shall become the legal parents of the child with all the rights and duties between them of natural parents and child. As a result of the adoption, the child shall inherit from the adoptive parent or their relatives the same as though the child were the natural child of the parents and in the case of the child's death the adoptive parents and their relatives shall inherit from the child the same as if they had been the child's natural parents and relatives.
Subdivision 2. After a decree of adoption has been entered, the natural parents of an adopted child shall be relived of all parental responsibilities for the child and they shall not exercise or have any rights over the adopted child or the child's property. The child shall not owe the natural parents or their relatives any legal duty nor shall the child inherit from the natural parents or relatives, except as provided in Subdivision 3.
Subdivision 3. Notwithstanding any other provisions to the contrary in this Chapter, the adoption of a child by a step-parent shall not in any way change the status of the relationship between the child and the child's natural parent who is the spouse of the adoptive step-parent.
If one parent dies and the child is subsequently adopted by a step-parent who is the spouse of the surviving parent, any rights of inheritance of the child or the child's issue from or through the deceased parent of the child which exist at the time of the death of that parent shall not be affected by the adoption.
Subdivision 4. Notwithstanding the provisions of Subdivision 1, the adoption of a child whose natural parent or parents are enrolled members of an Indian Tribe shall not change the child's enrollment in that tribe.
In any adoption proceeding, the Court may, at any time, appoint counsel, to represent the person being adopted.
The Court may order the petitioner to pay the reasonable costs of services rendered by an appointed counsel.
Subdivision 1. Any Indian who shall have resided on the Red Lake Indian Reservation for six (6) months may apply to the Red Lake Court of Indian Offenses to have his/her name, the names of his/her minor children, if any, and the name of his/her spouse, if the spouse joins in the application, changed in the manner provided in this Chapter.
Subdivision 2. The Indian desiring a name change shall make an application to the Red Lake Court of Indian Offenses and shall state therein:
a) The name, age and residence of the applicant.
b) The name, age and residence of his spouse and each child, if any.
c) A description of all real estate to which the applicant, spouse or children claim any interest in or lien upon.
d) The new name which the applicant requests.
In connection with the application, the applicant shall appear personally before the Court and prove his identity and also prove the identity of his spouse and minor children if their names are to be changed.
Subdivision 3. Any person who, with intent to defraud, shall make a false statement in any such application shall be guilty of a misdemeanor.
Subdivision 4. A minor child's application shall be made by his guardian or next of kin. No minor child's name may be changed without both of the child's parents first having notice of the pending application for change of name having the opportunity to personally appear in court for a hearing on the application.
Subdivision 1. Upon meeting the requirements of Section 803.01, the Court shall grant the application unless:
a) It finds that there is an intent to defraud or mislead, or
b) It finds, in the case of the change of a minor child's name, that such name change is not in the best interest of the child.
Subdivision 2. The Court shall set forth in its order changing a name, the name and age of applicant, his/her spouse and each child of the applicant, if any, and shall set forth the legal description real estate, if any, in which the applicant, applicant's spouse and applicant's children, if any, claim to have an interest. If real estate is described in the Order, a certified copy of the Order shall be filed for record in the appropriate offices for recording land title transfers.
Subdivision 3. No application shall be denied on the sole basis of the martial status of the applicant.
For the purpose of Chapter 804, the terms defined in this section shall have the following meanings:
Subdivision 1. Domestic Abuse. Domestic Abuse means:
a) Physical harm, bodily, assault or the infliction of fear of immediate physical harm, bodily injury or assault between family or household members; or
b) Criminal sexual conduct, within the meaning of sections 508.06 committed against a minor family or household member by an adult family or household member; or
c) Intra-family sexual abuse, within the meaning of Section 508.06 committed against a minor family or household member by an adult family or household member.
Subdivision 2. Family or Household Member. Family or household member means and includes spouses, former spouses, parents and children, persons related by blood, persons who are presently residing together or who have resided together in the past, and persons who have a child in common regardless of whether they have been married or have lived together at any time.
A petition for relief under this Chapter may be filed with the Red Lake Court of Indian Offenses by any Indian who resides upon the Red Lake Indian Reservation if the domestic abuse complained of occurred within the boundaries of the Red Lake Indian Reservation. Actions filed with the Court under this Chapter shall be given priority by the Court.
Subdivision 1. There shall exist an action known as a petition under this Chapter may be made by any Indian family or household member on behalf of himself or herself or on behalf of minor family or household members. The petition for relief shall state:
a) The name, age and residence of the Petitioner
b) The name, age and residence of minor family or household members.
c) A factual description of the acts of domestic abuse from which relief is sought including names, dates and places.
d) The facts which tend to show that the perpetrator of the acts of domestic abuse is a household or family member.
e) The name, age and residence of the alleged perpetrator of the acts of domestic abuse.
f) A request that the Court grant the petitioner an Order for Protection from the acts of domestic abuse described in the Petition.
Subdivision 3. The Court shall provide forms and clerical assistance to help with the writing and filing of a petition under this Chapter by any person so requesting assistance.
Upon the filing of a petition with the Court under this Chapter, the Court shall enter an Order setting forth a hearing date on the petition which date shall not be later than ten (10) days from the date of the Order. Service of the petition and court order shall be made upon the respondent not less than three (3) days prior to the hearing. Service shall be made as in other civil matters. In the event that service can not be made within the time set forth herein, the Court may set a new date for the hearing.
When a petition is filed under this Chapter and it alleges an immediate and present danger of domestic abuse, the Court may grant a temporary Order for Protection, without notice and hearing, pending a full hearing. The Court may grant relief as it deems proper in such temporary order, including the following:
a) Restraining any party from committing acts of domestic abuse.
b) Excluding any party from the dwelling they share or from the residence of the other except by further order of the Court.
The temporary order shall be effective for a period not to exceed ten (10) days. A full hearing, as provided by this Chapter, shall be set for a time which is not later than seven (7) days form the issuance of the temporary order. The opposing party shall be served with a copy of the temporary order, petition and notice of the date set for the hearing immediately.
Upon notice and hearing, the Court may provide relief as follows:
a) Restrain any party from committing acts of domestic abuse.
b) Exclude the abusing party from the dwelling which the parties share or from the residence of the parties.
c) Provide counseling or other social services which might be available for the parties, if married, or if there are minor children.
d) Order the abusing party to participate in treatment or counseling services.
e) Order, in its discretion, other forms of relief as it deems necessary for the protection of a family or household member.
An Order for protection granted pursuant to the Chapter shall be forwarded by the Clerk of Court within twenty-four (24) hours to the law enforcement agency of the Red Lake Indian Reservation.
Subdivision 1. Whenever an Order for Protection is granted pursuant to this Chapter and the person to be restrained knows of the Order, violation of the Order for Protection is a misdemeanor.
Subdivision 2. A law enforcement officer shall arrest without a warrant and take into custody a person whom the peace officer has probable cause to believe has violated an Order granted pursuant to this Chapter restraining a person or excluding a person from the residence.
Subdivision 3. Violation of an Order of Protection shall also constitute contempt of court and be subject to the penalties therefor.
Section 805.01 to 805.13 may be cited or referred to as the Parentage Act.
Parent and child relationship means the legal relationship existing between a child and his natural or adoptive parents incident to which the law confers or imposes rights, privileges, duties and obligations. It includes the mother and child relationship and the father and child relationship.
The parent and child relationship may exist regardless of the marital status of the parents.
The parent and child relationship between a child and:
a) The natural mother may be established by proof of the birth of a child.
b) The natural father may be established under this Chapter.
c) An adoptive parent may be established by proof of adoption.
Subdivision 1. The natural mother of a child born to a mother who was not married to the child's father when the child was born nor when the child was conceived has sole custody of the child until paternity has been established.
Subdivision 2. If paternity has been acknowledged by the father or paternity has been established pursuant to this Chapter, the father's rights of visitation or custody shall be determined under Chapter 801.
Subdivision 1. A man is presumed to be the natural father of a child if:
a) The man and the child's natural mother are or have been married to each other and the child is born during the marriage or within 280 days after the marriage is terminated by death, dissolution or divorce.
b) After the child's birth, the man and the child's natural mother have married.
c) While the child is under the age of majority, the man receives the child into his home and openly holds out the child as his natural child; or
d) The man and the child's natural mother acknowledge his paternity of the child in a writing signed by both of them pursuant to this Chapter.
Subdivision 2. The presumption in this Section may be rebutted in an appropriate action by clear and convincing evidence.
Subdivision 1. A child, the natural mother, or the public authority chargeable by law with the support of the child, may bring an action:
a) At any time for the purpose of declaring the existence of the father and child relationship.
Subdivision 2. If a child has been adopted, an action may not be brought.
The natural mother, each man presumed to be the natural father under Section 805.06, and each man alleged to be the natural father, shall be made parties to the action or, if not subject to the jurisdiction of the Court, shall be given notice of the action in a manner prescribed by the Court and shall be given an opportunity to be heard.
Subdivision 1. The Court may, and upon the request of a party shall, require the child, mother or alleged father to submit to blood tests. The tests shall be performed by a qualified expert appointed by the Court.
Subdivision 2. The refusal to submit to blood tests or genetic tests, or both, may be admitted into evidence and is subject to the sanctions within the jurisdiction of the Court.
Subdivision 1. Evidence relating to paternity may include:
a) Evidence of sexual intercourse between the mother and alleged father at any possible time of conception;
b) Expert opinions concerning the statistical probability of the alleged father's paternity based upon the duration of the mother's pregnancy;
c) Genetic blood test results of the statistical probability of the alleged father's paternity;
d) All other evidence relevant to the issue of paternity of the child.
Subdivision 2. Testimony of a physician concerning the medical circumstances of the pregnancy and the condition and characteristics of the child upon birth is not privileged.
Subdivision 3. Upon refusal of a witness, including a party, to testify under oath or produce evidence, the Court may Order him to testify or produce evidence concerning all relevant facts. If the refusal is upon grounds that his testimony or evidence might tend to incriminate him, the Court may grant him immunity from all criminal liability on account of the testimony or evidence he is required to produce. An Order granting immunity bars prosecution of the witness for any offenses shown, in whole or in part, by testimony or evidence which he is required to produce, except for perjury committed in his testimony. The refusal of a witness, who has been granted immunity, to obey an Order to testify or produce evidence is subject to the sanctions available to the Court.
An action pursuant to this Chapter is a civil action governed by the law of civil proceedings. The mother of the child and the alleged father are competent to testify and may be compelled to testify.
Subdivision 1. The judgment or order of the Court determining the existence of the parent and child relationship is determinative for all purposes.
Subdivision 2. If the judgment or Order of the Court varies with the child's birth certificate, the Court shall order that a new birth certificate be issued conforming to the Court Order.
Subdivision 3. The judgment or Order shall contain provisions concerning the payment of child support, which may include money, services or goods, the custody of the child, the name of the child, visitation privileges with the child or any other matter in the best interest of the child. The judgment or Order may direct the appropriate party to pay all or a portion of the reasonable expenses of the mother's pregnancy and confinement after consideration of the following facts:
a) Relative financial means of the parents;
b) Earning ability of each parent;
c) Any health insurance policies owned by either parent which would provide benefits for the expenses incurred by the mother during her pregnancy and confinement.
Notwithstanding any other law concerning public hearings and records, any hearing or trial held under this Chapter shall be held in closed Court without admittance of any person other than those necessary to the action or proceeding. All papers and records pertaining to the action or proceeding are subject to inspection only upon consent of the Court.
The Court, in its discretion, may award costs and disbursements, including the costs of any blood tests, to any of the parties.
Subdivision 1. As used in this Chapter, the terms in this Section have the meanings given to them.
Subdivision 2. Domestic Child Abuse means:
a) a physical injury to a minor family or household member which has been inflicted by an adult family or household member other than by accidental means, or
b) subjection of a minor family or household member by an adult family or household member to any act which constitutes a violation of Section 508.01 (Prostitution), 508.03 (Sodomy), 508.06 (Carnal Knowledge of Children), 508.07 (Rape), 508.08 (Indecent Liberties) and 503.03 (Incest).
Subdivision 3. Family or household members means spouses, former spouses, parents and children, persons related by blood, and persons who are presently residing together or who have resided together in the past and persons who have a child in common regardless of whether they have been married or have lived together at any time.
Subdivision 1. Petition. The local social service agency may file a Petition on behalf of minor family or household members requesting relief from acts of domestic child abuse. The Petition must allege the existence of or an immediate and present danger of domestic child abuse and must be accompanied by an affidavit made under oath stating the facts of and the time when the acts of child abuse occurred.
Subdivision 2. Temporary Relief. If it appears from the Petition and sworn affidavit that there are reasonable grounds to believe that a child is in immediate and present danger of domestic child abuse, the Court may grant an ex parte temporary order for protection, pending a hearing. The temporary order for protection may include any of the following types of relief as is in the best interests of the child:
a) restraining any person from committing acts of domestic child abuse; and
b) excluding the alleged abusing party from the dwelling which the family or household members share or from the residence of the child.
Subdivision 3. Ex parte Order. An ex parte temporary order issued under this Chapter shall be effective for a period of time not to exceed 14 days. Within said 14 day time period the Court shall establish a time and place for hearing on the question of domestic child abuse and serve notice of the same on all interested persons.
Subdivision 4. Service of Order. Any order issued under this Chapter shall be served on the defendant and a copy thereof shall be forwarded by the Court to the Red Lake Police Department.
Subdivision 1. Disposition. If the Court finds by a fair preponderance of the evidence that the child has been a victim of domestic child abuse, it shall enter an order making any of the following dispositions of the case:
a) place the child under the protective supervision of the Red Lake Social Service agency in the child's own home under conditions prescribed by the Court;
b) restrain any person from committing acts of domestic child abuse;
c) exclude the abusing party from the dwelling which the family or household members share or from the residence of the child;
d) establish temporary visitation with regard to the child;
e) provide counseling or other social services for the family or household members; and
f) order the abusing party to participate in treatment or counseling services.
Subdivision 2. Length of Order. Any order made under Section 806.03 shall be for a fixed period of time and shall not exceed one year. The Court shall review at the time of expiration of the order, upon its own motion or that of any interested person, and may extend the order, with or without modifications, for additional periods of time, not to exceed one year, as is in the best interest of the child. All Court orders shall automatically terminate when the child reaches the age of 18 years.
(Chapter 806 "Domestic Child Abuse" added to Tribal Code by Resolution No. 308-92 , dated September 15, 1992)
This section may be cited as the Red Lake Vulnerable Adult Protection Section
Subdivision 1. As used in this section, the following terms have the meanings given them unless the specific context indicates otherwise.
A. "Facility" means a hospital, nursing home, day care facility, or residential facility, a home health agency.
B. "Vulnerable Adult" means any person eighteen (18) years of age or older:
1. who is a resident or inpatient of a facility; or
2. who receives services at or from a facility to serve adults, including a person receiving outpatient services for treatment of chemical dependency or mental illness; or
3. who receives services from a home health agency; or
4. who, regardless of residence or type of service received, is unable or unlikely to report abuse or neglect without assistance because of impairment of mental or physical function or emotional status.
C. "Caretaker" means an individual or facility who has responsibility for the care of a vulnerable adult as a result of family relationship, or who has assumed responsibility for all or a portion of the care of a vulnerable adult voluntarily, or by contract or agreement.
D. "Abuse" means;
1. any act which constitutes a violation of the Red Lake Criminal Code; or
2. nontherapeutic conduct which produces or could reasonably be expected to produce pain or injury or is not accidental or any repeated conduct which produces or could reasonably be expected to produce mental or emotional distress; or
3. any sexual contact between a facility staff person and a resident or client of that facility; or
4. the illegal use of a vulnerable adult's person or property for another person's profit or advantage, or the breach of a fiduciary relationship through the use of a person or a person's property for any purpose not in the proper and lawful execution of a trust, including but not limited to situations where a person obtains money, property, or services from a vulnerable adult through the use of undue influence, harassment, duress, deception, or fraud.
E. "Neglect" means
1. failure by a caretaker to supply the vulnerable adult with necessary food, clothing, shelter, health care, or supervision; or
2. the absence or likelihood of absence of necessary food, clothing, shelter, health care, or supervision for a vulnerable adult; or
3. the absence or likelihood or absence of necessary financial management to protect a vulnerable adult against abuse as defined in paragraph D, clause 4. Nothing in this section shall be construed to require a health care facility to provide financial management or supervise financial management for a vulnerable adult except as required by law.
F. "Report" means any report received by a local welfare agency or police department.
A professional or his/her delegate who is engaged in the care of vulnerable adults, education, social services, law enforcement, or an employee of rehabilitation facility, or an employee of or person providing services in a facility who has knowledge of the abuse or neglect of a vulnerable adult, has reasonably cause to believe that a vulnerable adult is being or has been abused or neglected, or who has knowledge that a vulnerable has sustained a physical injury which not reasonably explained by the history of injuries provided by the caretaker or caretakers of the vulnerable adult shall immediately report the information to the local police department, local welfare agency, or tribal prosecutor, and whereupon, an investigation shall be commenced.
A person required to report shall make an oral report immediately by telephone or otherwise. A person required to report under this chapter shall also make a written report. The written report shall be sufficient content to identify the vulnerable adult, the caretaker, the nature and extent of the suspected abuse or neglect, any evidence of previous abuse or neglect, name and address of the reporter, and any other information that the reporter believes might be helpful in investigating the suspected abuse or neglect. Written reports received by a police department or shall be forwarded immediately to the local welfare agency. The copies of written reports received by a local welfare department shall be forwarded to the local police department.
Subdivision 1. A person making a voluntary or mandated report under this chapter or participating in an investigation under this section is immune from any civil or criminal liability that otherwise might result from the person's actions, if the person is acting in good faith.
Subdivision 2. A person employed by a local welfare agency who is conducting or supervising an investigation such a report under this chapter immune from any civil or criminal liability that otherwise might result from the person's actions, if the person is acting in good faith and exercising due care.
A person who intentionally makes a false report under the provision of this section shall be liable in a civil suit for any actual damages suffered the by the person or persons so reported and for any punitive damages set by the court or jury.
Subdivision 1. The local welfare agency shall immediately investigate and offer emergency and continuing protective social services for purposes of preventing further abuse or neglect and for safeguarding and enhancing the welfare of the abused or neglected vulnerable adult. Local welfare agencies may enter facilities and inspect and copy records as part of investigations. In cases of suspected sexual abuse, the local welfare agency shall immediately arrange for and make available to the victim appropriate medical examination and treatment. The investigations shall not be limited to the written records of the facility, but shall include every other available source of information. When necessary in order to protect the vulnerable adult from further harm, the local welfare agency shall seek authority to remove the vulnerable adult from the situation in which the neglect or abuse occurred. The local welfare agency shall also investigate to determine whether the condition which resulted in the reported abuse or neglect place other vulnerable adults in jeopardy of being abused or neglected and offer protective social services that are called for by its determination. In performing any of these duties, the local welfare agency shall maintain appropriate records.
Subdivision 2. When necessary in order to protect a vulnerable adult from serious harm, the local agency shall immediately intervene on behalf of that adult to help the family, victim, or other interested person by seeking any of the following:
A. a restraining order or a court order for removal of the perpetrator from the residence of the vulnerable adult;
B. the appointment of a guardian or conservator;
C. Replacement of an abusive or neglectful guardian or conservator and appointment of a suitable person as guardian or conservator; or
D. A referral to the Tribal Prosecutor for possible criminal prosection of the perpetrator.
Subdivision 3. In proceedings for guardian or conservatorship, if a suitable relative or other person is not available to petition for guardianship or conservatorship, a local welfare agency employee shall present the petition with representation by the tribal prosecutor. The Court shall determine whether a family member or other person shall serve as guardian or conservator.
(Chapter 807 added to Tribal Code by Resolution
No. 245-95,
dated November 14, 1995)
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