Sharing Our Stories of Survival: Native Women Surviving Violence (52 page)

Even when the victim does not live with her abuser, she may remain liable for his continuing debts as long as a valid, legal marriage still exists. An abuser can fail to make payments on a new vehicle, furniture, or home. He can open new credit accounts and fail to pay the monthly charges. The abuser can accidentally injure a third party in a car accident or run up large medical or dental bills. In all of these cases, the victim may be held financially responsible for the debts of her abuser even if they have informally separated for many years.

In many jurisdictions, an abuser will inherit all of the victim’s property upon her death if she dies intestate (without a will) and there is no legal divorce in place. Without a legal divorce, the abuser may also retain rights to the victim’s 401(k), pension, or other retirement plan.

Financial abuse is a common form of control exercised by abusers over their intimate partners. In the absence of a formal divorce decree, an abuser may continue to run up debts that will destroy the victim’s credit and make it impossible for her to obtain a home mortgage, credit cards, or a car loan in the future. A victim may have to resort to formal bankruptcy proceedings (after completion of a legal divorce) in order to discharge her legal obligations for the debts of her abusive spouse. A formal divorce order releases the victim from liability for any future debts of her abuser-spouse.

Formal custody, support, and visitation orders are also important in cases where the abuser and intimate partner are not legally married but have one or more children in common. If
paternity
has been established, an abuser retains equal rights to custody and visitation of the children in the absence of a formal court custody and visitation order. An abuser can continue to make the same medical, educational, and religious decisions as a father who is legally married to the children’s mother. In the absence of a formal child support order, an abuser may cease to pay for the care of his children and shift the entire financial burden on to the mother.

Tribal Court Jurisdiction in Divorce, Custody, and Support Cases: Where to File

Tribal courts must have both subject matter and personal jurisdiction to grant an order for divorce, custody, and/or support. Subject matter jurisdiction is the power to hear the general topic being brought before the court. Personal jurisdiction is the power to hear a case involving the specific parties involved in the case.

The tribe must authorize its tribal court to hear divorce, custody, and support actions under the laws, custom, or tradition of the tribe. Many tribes authorize their courts to hear divorce, custody, and support actions brought by tribal members, nonmember Indians, and non-Indians married to a tribal member or with a child in common with a tribal member. Some
tribal codes
only allow their courts to hear divorce, custody, and support cases where both parties are tribal members, where both parties are Indians, or where one of the parties is an Indian and both parties reside on the reservation. Other tribes allow their courts to hear divorce and custody cases where both parties are tribal members and reside off-reservation. A few tribes and pueblos do not permit divorce. Their tribal courts are not authorized to issue divorce or dissolution of marriage orders under any circumstances.

On the most basic level, tribal codes authorize tribal courts to issue divorce decrees when there is proof that a valid, legal marriage exists. Similarly, tribal codes provide authorization to issue child custody and support orders when legal parentage has been established (that is, by formal paternity proceedings, adoption, and so forth).

The definition of a legal marriage varies from tribe to tribe. Most tribes recognize marriages performed on their own reservation as well as marriages performed off-reservation under the laws of states or other tribes. Tribal courts often recognize traditional marriages performed according to the custom and tradition of their own tribe. Tribal law may also recognize “common law marriages” where the couple has lived together as “man and wife” for a number of years and the community has acknowledged their relationship as a valid marriage (even in the absence of any formal ceremony or license).

Many tribes recognize legal parentage of children whenever a child is born to two married people. Tribes may also establish legal parentage by formal paternity proceedings, court adoption proceedings, and by traditional tribal adoption.

Within certain limits, tribes, as sovereign nations, have the right to “make their own laws and be ruled by them.”
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Tribal courts have
exclusive
jurisdiction to hear divorce actions between two Indians (member or non-member Indians) residing on a reservation.
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Exclusive jurisdiction means that the tribal court is the only court that can hear the action. The parties cannot file for divorce in state court because the state court does not have subject matter jurisdiction to hear the matter. This presents a problem for victims of domestic violence living on reservations or pueblos where divorce is not permitted. These women may be foreclosed from obtaining a divorce in any jurisdiction as long as they continue to reside on-reservation.

Tribal courts, if their codes permit, can issue divorce orders in a marriage between an Indian and a non-Indian residing on the reservation when the petitioner (person initiating the case) is a non-Indian.
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The law is unsettled when the Indian spouse residing on the reservation with their non-Indian spouse initiates the divorce action.
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Indian spouses initiating divorces against their non-Indian spouses where both parties reside on the reservation may have the option to file in either state or tribal court.

Tribal courts have exclusive jurisdiction to hear divorce and custody cases involving an Indian child where at least one of the parents is Indian and one of the parents resides on the reservation with the Indian child.
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Tribal courts may also have exclusive jurisdiction to hear divorce and child custody cases where one of the parties and an Indian child reside on the reservation and the other party resides in a state.
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This applies to marriages where both spouses are Indians as well as to marriages between non-Indians and Indians. Tribal courts cannot hear divorce or custody cases involving two non-Indians residing on the reservation even if they voluntarily submit to the jurisdiction of the tribal court. Non-Indians, even if they are longtime residents of a reservation, must file for divorce, custody, and support in state court.
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Victims who leave the reservation and then reside in a state may be able to file for divorce in state court after they have resided in the state for a time period determined under the laws of each state. Every state has a statute outlining the minimum length of time a person must reside in that state before they can file for divorce in state courts. It may be easier for a victim relocating to a state to obtain an order for dissolution of marriage in state court than to obtain child custody, support, and final orders assigning property and debts. State courts may decide to exercise the doctrine of comity (mutual respect for the court of another sovereign or state) and allow tribal courts to make final custody and property determinations, especially when evidence concerning child custody or the actual property to be divided is located on the reservation.

Victims leaving a reservation may have to wait up to six months to establish residency in a state in order to file for child custody in state courts.
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However, Native victims of domestic violence fleeing their reservation with their children may be able to file for emergency child custody in state courts without fulfilling a lengthy residency requirement under the provisions of the Parental Kidnapping Prevention Act (PKPA).
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The PKPA is a federal law passed by Congress designed to discourage conflicts in interstate custody cases, deter interstate child abductions by parents involved in custody disputes, and promote cooperation between states about interstate custody matters. While the PKPA does not directly apply to tribes,
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it can allow Native women fleeing from reservation-based domestic violence to gain some relief in state courts. The PKPA allows states to assume emergency jurisdiction in child custody cases where the child, a sibling, or a parent of the child has been subjected to or threatened with mistreatment or abuse. Native women filing for emergency child custody in state courts under the PKPA should allege in their petitions that they or their children are victims of domestic violence or have been threatened with acts of domestic violence by the other parent.

Initiating Divorce, Child Custody, and Support Actions in Tribal Courts

Divorce, custody, and support proceedings can be an emotionally and financially trying experience for a Native survivor of domestic violence. The period in which proceedings are initiated can also be a dangerous time for the survivor and her children. Statistics show that the risk of death or injury dramatically increases for a victim once she leaves her abuser. The risk may also increase when the abuser is arrested and charged with abuse or when he is served with protection order, divorce, custody, or support documents. Safety planning with an experienced victim advocate is the first important step for any Native survivor contemplating divorce, child custody, protection orders, and/or support proceedings in tribal courts.

Many tribes have adopted formal rules of procedure that must be followed in all divorce, custody, and support actions. Other tribes have retained their more traditional procedures for making divorce, custody, and support determinations. Victims may wish to consult with an attorney or a legal advocate licensed to practice in their tribal court before filing. This is especially important in tribal courts that follow more formal rules of procedure. If an attorney or legal advocate is not available, victims may consider asking the tribal court for a copy of the rules of procedure and copies of any standardized forms the court uses in divorce and custody actions. The rules of procedure contain important deadlines for filing pleadings (also known as petitions) in tribal court. Pleadings or petitions are formal, written requests to the court requesting certain “forms of relief” (specific things the party wants the court to order).

Some tribal courts provide standardized forms for use in divorce, custody, and support actions. These standardized forms can serve as a template or model for victims filing on their own without the help of an attorney or lay legal advocate. They can help to ensure that victims have covered all of the important areas the court needs to consider in divorce, custody, and support cases.

Many tribal courts charge a filing fee for the party initiating a divorce or custody action. The fee is generally paid when the formal petition for divorce, custody, or support is filed with the tribal court. Many courts also charge a fee for filing a response (formal, written answer) to a petition. Sometimes a party can request that the filing fee be waived for economic hardship. A fee waiver can be requested in writing in most courts. Other tribal courts may waive fees if the victim orally requests a waiver.

A petition in tribal courts can usually include a request to dissolve the marriage, divide the property, assign debts, issue support orders (spousal support and/or child support), restore a maiden name, and issue a child custody order. Victims of domestic violence may also wish to ask the court to issue an order of protection if they have not done so already. Some tribal courts will consolidate the protection order with the divorce, custody, and support proceedings. Other tribal courts require a separate action to be filed to obtain a protection order.

It can also be important for victim safety to inform the court if the abuser owns or possesses any firearms and ammunition and to request an order prohibiting his possession of firearms or ammunition as part of the court’s initial orders. The tribal court may then consider ordering the abuser to surrender firearms and ammunition to the court or to law enforcement during the course of the proceedings.

The pleading filed in tribal court usually states the names of the parties, dates of birth, tribal affiliation, physical address, and length of time at that address. Some courts require a social security number or tribal enrollment number for the parties. Victims of domestic violence may ask the court to keep their address confidential, especially if they are in shelter or if revealing their physical address would endanger them. They may supply another address where they may safely receive mail instead.

Victims seeking custody of children generally include information about the legal names of their children, their tribal enrollment (or eligibility for enrollment), dates of birth, current address (if revealing the address would not endanger the victim or children), and length of time the children have resided on the reservation. It may also be important to inform the court if the victim is pregnant with her abuser’s child.

On the most basic level, the petition tells the court who the parties are, what the victim wants the court to do, and provides reasons for the court to grant the victim what she has requested. Tribal courts vary as to whether a party must allege grounds for divorce such as physical or mental cruelty or adultery. Many courts allow “no fault” divorces where one of the parties must simply state that the marriage is irretrievably broken or that they wish to dissolve the marriage.

Tribal courts are beginning to adopt a formal presumption against giving custody of children to an abuser. These courts recognize that a batterer’s violence against the mother is a strong indicator of poor parenting skills and of an increased likelihood of violence against the children. Tribal courts have also ruled that domestic violence against a mother in the presence of her child is the same as abusing the child mentally and emotionally.
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