WHITE EARTH BAND OF OJIBWE

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TITLE VI

FAMILY RELATIONS CODE

CHAPTER 1: GENERAL PROVISIONS ......cc.ccccsscsessecsecsecsscseessessesssessenassseeenenseseeeseseeseseasessenae® 3

§1.01 Short Tithe... ec eeeeeecsesesessesessseesenecsesesesesesesenesssesnseecseecasneaenssesesecssssssesssenssesneeesesees 3

$1.02 PULPOS€...... se cessssesesssseeseseessesnesecesessenesseesecsanecsensenecasresseersaseesessensessasseneenseneeresesasreeesetey 3

$1.03 General Definitions 00.0... ccc ccseeseeeescseeenesenseseseseeenenaessenerasnerensteerssesseseeensesessessnans 3

§1.04 Repeal and Replace......cccecssseseesereeeeeseeeseneiseacasaseesenensseersrsssnseessesessseseneeseseeeesreness 4

CHAPTER 2: MARRIAGE. .......cccccccsccssssseseceescseeesececceeseesessseseessssseesseaeesusaesnessssseeeeerseesaesesesegeonse 4

§2.01 Definitions... eecccecssesesesssnecenesersesesenssseseeeneeenenseaeassnerecsssesesscsseeseeassensesseeessseenanenegs 4

§2.02 Jurisdiction... eececesesceeeceserseescseesesseseseseneneeseseseesssssecenenesseceerssseusnsssnsenerecsrsssrenesenenene tenses 4

§2.03 Valid Marriages ..........cccccssssssesssecessessessseneeeeneneeseasaescnenecsereserensensessessssessseneseeneeseaeeys 4

§2.04 Prohibited Marriages...........esccccccssesessssessneenessenensssaesereessseseesssssassceneesesrareneseresereessenans 5

$2.05 License .....cccececscsseessssesssscscssesesseesseneseeessenseeseesenensaseenecacsesererssseessssaeseseesanansesnsenasenenens 5

§2.06 Marriage Certificate 0. cceeeeseseseneteseneneentenensesssenesstsesensesnenecesecassenssesenenenenssenenens 6

CHAPTER 3: DISSOLUTION OF MARRIAGE ....... ci ceccseccscseeseesesreneseresneseeneeeseneeensnsaeaeenesees 6

§3.01 Definitions... ccccsceseseesesesereesesesesesessnessseneaesensnsersseecenssssensssanenenseseveenssesesenensensnessees 6

§3.02 Jurisdiction... cece sesssscscsssesseeesseserensssenesensnsecesencasneeessnecsereceesssssesssteessesesseneanenenaeeees 7

§3.03 Service Of Petition... ccccsseseeeeseeseetseerenenerenenssssesssensesnsnsessneesseesrsnssensssnsessesesees 8

§3.04 Legal Separation 0.0... ccccscsseseseseseesnesenenensesesenenenenerseneaerensesesssesssseneessnanensesesneeneeeneas 8

§3.05 Separation Agreement... ccccceseseeceeeseeeeeeseeeeeeseeeesenensssnesseeesernssenensesaseenenssesenenenens 9

§3.06 DivOrce......eeeeccsesersssssesssesssssssssceneressssesesensneneneasasanacaeanaereasscrenesesseasseseseaesenensseneessersnerenees 9

§3.07 Anmulment.....c eee ecsssesessssesesessessseneseesenenseeesenenenenesessesssneneususececstanssssasensessesreesasnens 10

§3.08 Action for Dissolution of Marri ge........cceesessesceseeseeneerecessseesseeseeseseassseeseeneeereseeeresaeereny 11

§3.09 Temporary Hearings ..........c.ccccccssesssecessenseceesseeeeteeeeseaseseeneacsererenscsenensssesesaesenessnaeeens 12

§3.10 Judgment and Decree of Divorce or Annulment: .........cseesesessssesereeereeseseneseseneesenens 13

§3.11 Disposition of Property .........cccccessesesceesseeeteeeeeeseeeeneeessseeeeneseeeeseteessneeessenenrenenneeneaes 13

§3.12 Spousal Support ........ cc ccsesccseseseeeseeseseeeesenenersseeeesencesneceesssnsnesssnssersenssessenesseseseenseneees 14

§3.13 Setting Aside or Modifying Judgment... cccceeceseeeeeesereseteestenssnenessenenenennesesesens 16

CHAPTER 4: CUSTODIAL PETITIONS ......cecceceeccesceeecesesseeeseseeeesanesneeneseneecerenseeeneneseeeenseeags 16

§4.01 Definitions... ceecscsceccseeceeseceesenssseseseneesensactenseeeessesereesssenssessssseesreneresseneeeneneneenes 16

$4.02 Jurisdiction... sees sesssseeeseeessesenenseseenenenseacaeaeeeraceesesssseesenssseseseeeesensrereeneasenss 17

§4.03 Service Of Petition... eeccsceeesessceeseseeeeeeeeseresesereeesenseeeessssaneaeseseneceeieeeseeseaneney 18

§4.04 Best Interests of the Child... ceesseeeeresesseneeeteeeeenenetseneeeeesseeenessseseresesssseneesesenenees 19

§4.05 Stand-by Custodian Action... ccccececeeseneeseseeetseeenenereeasrenseersnseseeeeeseeenseaseeeaeonee ees 20

§4.06 Delegation of Parental Authority (DOPA) Action... cesses reeteeeeeeeneenenenee 21

SUBCHAPTER 4A: CUSTODY .......ccccccccscsssesseceeceeecsecssscesscesssesesssnsesneensecssseressesseneneseeneeeseaeneees 21

S4A.01 Custody Action oo... sccseecesectsseesssssestsnnesenseresnseesserscsseseasseessesssssssesseanesisesseeereneens 21

§4A4.02 Emergency Custody Ordetr........cccsccccesscescsseeeeseeceteneneeserenenereresseeseseeesssssieneseeseneees 22

§4A.03 Temporary Hearings ..........ceccsseeeesesseseseeecsseseseeseerenesscsecsesescsseacansnesesesesesseseeseensneses 23

§44.04 Domestic Violence... ccccccsseseesseesserenecseseseneesseneneeenenseeraceeerseseressessenesserenenee 23

§4A.05 — Third Party Petitions 00.0.0... cssesesseeseseeeeseeeeeneeseeneneeenecererssseseseeessneseeneneneeasnneees 23

§4A.06 — Visitation... ee eeeeeccsersesssesscsensesessseessesesesesseesseeseseesesessaessasaassensssnssssessensseseenenegs 23

§4A.07 Evidentiary Submissions by Tribal Entities... cece eres esestseeesteteeesessenenenees 24

CHAPTER 5: NAME CHANGE. ........ccccscssssessesssesscesceeneecacersesoneessnsssscesssesesesevaneenessneeseeasersasensenes 24

§5.01 Jurisdiction... cc cccsceseceeseseeesensereseseteeeesseetereneeneeeesesstenesseseesesestsessensneeneeseeeseneeees 24

§5.02 Petition for Name Change of an Adult or Emancipated Minor ............ssseeseeeerereeee 24

§5.03 Application by Emancipated Minor.........cccssecseeseeeessererensereserereeesssseneseeeneeseaeseeeeenens 26

§5.04 Petition for the Name Change of an Unemancipated Minot........... cesses 26

§5.05 Approval of a Name Change........ccceccsceserseceeeeneesesetenernenesteresssseneneseesesssnnenseessenes 27

CHAPTER 1: GENERAL PROVISIONS

§1.01 Short Title

This Title shall be entitled “The Family Relations Code.”

§1.02 Purpose

1. The Family Relations Code shall be liberally interpreted and construed to fulfill the

following expressed purposes:

a. To regulate the civil contract of marriage.

b. To promote the rights and fair treatment of the parties and their child(ren) under

the provisions of this code.

c. To regulate the division of property owned by the parties during the marriage.

§1.03 General Definitions

1. The following definitions shall be used for words within this entire Title.

a. Adult: A person eighteen (18) years old, or otherwise emancipated by order of a

court of competent jurisdiction.

b. Child: A person who is less than eighteen (18) years of age.

c. Civil: Relating to the rights of private individuals and to legal proceedings

involving these rights as distinguished from criminal, military, or international

courts, proceedings, or rules.

d. Indian: Any person who is a member or is eligible to become a member of a

federally recognized Indian tribe, band or community, or Alaska Natives.

e. Moving Party: Any party who motions the Tribal Court to change an existing

order.

f. Petitioner: The party who initially files a petition with the Tribal Court.

g. Reservation: The land reserved to the White Earth Band of Ojibwe as recognized

under the 1867 Treaty of Washington between the Mississippi Band of Chippewa

Indians and the United States, 16 Stat. 719, including all lands which are now or

in the future located within the exterior boundaries of the aforementioned treaty;

any and all land held in trust for the Tribe by the United States; and all other land

considered “Indian Country,” as defined by 18 U.S.C. §1151, that is associated

with the Tribe.

h. Respondent: The party against whom the initial petition is filed.

i. Reservation Business Council/Tribal Council: The governing body of the White

Earth Band of Ojibwe.

j. Tribal Court: The Tribal Court of the White Earth Band of Ojibwe.

§1.04 Repeal and Replace

1. Approval of this Code by the White Earth Reservation Business Council shall repeal

and replace Title 6 “The Marriage Code” and Title 6A “The Family Relations Code”

signed into law on September 6, 2001.

2. Custody petitions shall be filed under this code, and not under “The Child/Family

Protection Code.”

3. Enactment of this Code does not void any prior Court Order made under the former

codes.

CHAPTER 2: MARRIAGE

§2.01 Definitions

1. The following definitions shall be used for the following words within this chapter:

a. Contract: A writing or document containing a legally enforceable agreement

between two or more parties.

b. Holy person: A person who is recognized and acknowledged by the tribal

community as a spiritual person and/or organized religion.

c. Marriage Certificate: A written document providing proof of the marriage.

d. Marriage License: A document that is obtained before the ceremony that

authorizes the marriage.

e. Solemnize: To perform with formal ceremonies or rites.

§2.02_ Jurisdiction

1. The Tribal Court shall have jurisdiction to conduct or certify a marriage in any of the

following circumstances:

a. A party to the marriage is an enrolled member of the White Earth Band of

Ojibwe,

b. A party to the marriage lives within the exterior boundaries of the White Earth

Reservation, or

c. Two parties agree to subject themselves to the jurisdiction of the Tribal Court for

the purpose of entering into a marriage contract.

2. This section is to be construed liberally to exercise maximum jurisdiction consistent

with applicable tribal, state, and federal law.

§2.03 Valid Marriages

1. Marriage Contract:

a. A valid marriage is a civil contract between two persons, to which the consent of

the parties, capable in law of contracting, is essential.

b. Marriage may be contracted only after a license has been obtained, and only after

the marriage is contracted in the presence of two (2) witnesses and solemnized by

one who is authorized, or by one who either party or both parties in good faith

believes to be authorized.

2. Common Law Marriage:

The White Earth Band of Ojibwe does recognize common law marriages.

A common law marriage is one in which two persons who are capable of

contracting have:

Cohabitated together for at least seven (7) years.

Have held themselves out as married and have otherwise behaved as if they

were married.

3. Persons Capable of Contracting:

Every person who has attained the full age of eighteen (18) years is capable of

contracting marriage, if otherwise competent.

2. Persons Who May Perform Marriages: Marriages can be solemnized by:

Cc.

Any judge of court record of the White Earth Band of Ojibwe Tribal Court;

A licensed or ordained minister of any religious denomination; or

A holy person chosen by the parties to the marriage.

$2.04 Prohibited Marriages

1. The following marriages are prohibited and will not be recognized by the White Earth

Band of Ojibwe:

A marriage entered into before the dissolution of an earlier marriage becomes

final.

A marriage between an ancestor and descendant who are closer than second

cousins, regardless of whether the relationship is by half or whole blood.

A marriage entered into by persons who have been found legally incompetent or

incapable of contracting in a marriage.

§2.05 License

1. A license shall be obtained from the Tribal Court before the marriage ceremony is

performed by an authorized person.

2. Application for License: An application for marriage shall contain the following

information:

a. The full names and the sex of each party;

b. The current mailing address of each party;

c. The parties’ dates of birth;

d. If either party has been previously married, the party’s married name and the date,

place, and court in which the marriage was dissolved or annulled or proof of death

of former spouse;

If either party is a minor, the name and address of the minor’s parents or guardian;

and their written consent.

The address of the parties after the marriage to which the Tribal Court shall send a

certified copy of the marriage certificate; and

The tribal membership status of the parties with the White Earth Band of Ojibwe

or any other federally recognized tribe, if any.

3. Term of License and Fee:

After the Tribal Court has examined the marriage application and no legal

impediments were found; the Tribal Court shall issue the license, containing the

full names of the parties before and after marriage, and county and state of

residence, with Tribal Court seal attached, and make a record of the date of

issuance.

The license is valid for six (6) months.

If the license is not used within the six (6) months due to illness or other

extenuating circumstances, it may be surrendered to the Tribal Court and a new

license will be issued at no additional cost.

The Clerk of Court shall collect an application fee for the issuing, recording, and

filing of all papers required.

§2.06_ Marriage Certificate

The person solemnizing a marriage shall prepare and sign three (3) certificates

containing the full names before and after the marriage, the county and state of

residence of both parties, and the date and place of marriage.

Each certificate shall contain the signatures of at least two (2) witnesses who are at

least eighteen (18) years of age.

The person solemnizing the marriage shall give one copy to the Tribal Court

administrator and a copy to each party.

Every person who solemnizes a marriage and neglects to deliver the certificate to the

Tribal Court recorder within five (5) days of the ceremony may be brought before the

Tribal Court to show cause.

CHAPTER 3: DISSOLUTION OF MARRIAGE

§3.01 Definitions

The following definitions shall be used for the following words within this chapter:

Alimony: Support or maintenance that one spouse pays another after they have

been separated or divorced.

Annulment: A declaration that a marriage never existed.

b. Dissolution: The act or process of terminating a marriage between a husband and

wife through annulment or divorce.

Divorce: The termination of a marital relationship by a court judgment or decree.

A divorce decree completely terminates the marital status of both parties.

Custody: Responsibility for the well-being and general welfare of the child(ren).

Imputed Income: The estimated earning ability of a parent based on the parents’

prior earnings history, education, and job skills, and on the availability for an

individual with the parent’s qualifications.

Income: Any form of periodic payment to an individual including, but not limited

to: wages, salaries, payments to an independent contractor, commissions and

pension payments.

Legal Separation: A court determination of the rights and responsibilities of a

husband and wife arising out of the marital relationship. A decree of legal

separation does not terminate the marital status of the parties.

Nullity: An act or decree having no legal effect.

Parent: Includes natural or adoptive parent but does not include persons whose

parental rights have been suspended or terminated, nor does it include the unwed

father whose paternity has not been acknowledged or established.

Residence: The place in which one lives and maintains a permanent home.

§3.02 Jurisdiction

The Tribal Court shall have jurisdiction to dissolve a marriage in any of the following

circumstances:

A party to the marriage is an enrolled member of the White Earth Band of Ojibwe

and lives within the exterior boundaries of the Reservation;

A party of the marriage lives within the exterior boundaries of the White Earth

Reservation; or

Two parties who agree to subject themselves to the jurisdiction of the Tribal

Court for the purpose of dissolving a marriage, who would not otherwise be

subject to the Tribe’s jurisdiction.

This section is to be construed narrowly. The Tribal Court may declare forum non

conveniens when:

Neither party is a member or eligible for membership with the White Earth Band

of Ojibwe;

The majority of the property to be disposed of is outside the exterior borders of

the Reservation;

The child(ren) resulting from the marriage reside outside the exterior borders of

the Reservation; or

Other good cause shown in conformance with the White Earth Judicial Code.

§3.03 Service of Petition

1. The petitioner shall be responsible for serving the petition to the respondent. Service

of the summons and complaint may be accomplished by certified mail or personal

service.

a. Service by certified mail may be accomplished by mailing a copy of the summons

and complaint to the person to be served. The petitioner shall file an affidavit of

service by certified mail with a signed receipt of certified mail with the Tribal

Court.

b. Personal service may be made by requesting the White Earth Police Department

or other police force of proper jurisdiction to deliver a copy of the summons and

petition personally, or by leaving a copy at the person’s residence with someone

of suitable age who is residing there. The petitioner shall file an affidavit of

personal service signed by law enforcement with the Tribal Court.

i. Ifa party has an attorney of record in ongoing proceedings under this Title,

service of an amended or additional petition to the office of the party’s

attorney shall constitute a perfection of service in cases of default.

c. Or other means consistent with the White Earth Rules of Civil Procedure, R. 6 &

R. 7.

2. Ifthe White Earth Tribal Court finds that service by certified mail and personal

service cannot be perfected, then service may be accomplished by publication through

the tribal, local, or other comparable newspaper printed within the Reservation or

County, reasonably chosen to alert the party being served.

An affidavit of service by publication shall be filed with the Tribal Court.

b. Service by publication shall continue to be perfected until the party appears in

Court or is found in default.

c. Incases arising under this Title, the Tribal Court must be satisfied that the

respondent’s intentions have not been willfully disregarded to find that other good

cause has been shown to permit service by publication pursuant to the White

Earth Rules of Civil Procedure.

3. A party who motions the Tribal Court to amend an existing order shall be responsible

for serving their motion to the non-moving party in a manner authorized by §3.03(1).

§3.04 Legal Separation

1. Grounds for Legal Separation: A decree of legal separation shall be granted when the

Tribal Court finds that one or both parties need a legal separation.

2. Agreement over Separation: If one or both parties petition for a decree of legal

separation and neither party contests the granting of the decree, the Tribal Court shall

grant a decree of legal separation.

3. A legal separation may be granted on its own or at the same time as a decree of

divorce or annulment.

§3.05 Separation Agreement

Purpose: To promote the friendly settlement of disputes between parties to a

marriage, the parties may enter into a written separation agreement containing

provisions for the disposition of any property owned by either of them, maintenance

of either of them, and custody, visitation, and support of their child(ren).

Proceedings: In a proceeding for legal separation, the terms of the separation

agreement, except those providing for the custody, visitation, and support of

child(ren), are binding upon the Tribal Court unless it finds, after considering the

economic circumstances of the parties and any other relevant evidence produced by

the parties, on their own motion or on request by the Tribal Court, that the separation

agreement is unfair.

Standard of Review:

a. Ifthe Tribal Court finds the separation agreement unfair as to disposition of

property or maintenance, it may request the parties submit a revised separation

agreement or make the Order for the disposition of property or maintenance.

b. Ifthe Tribal Court finds that the separation agreement is fair as to disposition of

property or maintenance, and that it is reasonable as to support, custody and

visitation of the child(ren), the separation agreement shall be set forth or

incorporated by reference in the decree of dissolution or legal separation and the

parties shall be ordered to perform them.

Incorporation by Reference: The Tribal Court may in its decree identify the

separation agreement as incorporated by reference and state that the Tribal Court has

found the terms as to property disposition and maintenance not unfair and the terms

as to support, custody, and visitation of child(ren) are reasonable.

Enforcement: Terms of the agreement set forth or incorporated by reference in the

decree are enforceable by all remedies available for enforcement of a judgment,

including contempt.

§3.06 Divorce

Grounds for Divorce: A divorce shall be granted by the Tribal Court when it finds

that there has been an irretrievable breakdown of the marriage relationship.

2. Default: If the respondent does not appear after service has been duly made and

proved, the Tribal Court may hear and determine the proceeding as a default matter.

Dispute over irretrievable breakdown: If one of the parties has denied under oath or

affirmation that the marriage is irretrievably broken, the Tribal Court shall consider

all relevant factors, including the circumstances that gave rise to the commencement

of the proceeding and the prospect of reconciliation, and shall make a finding whether

the marriage is irretrievably broken.

a. A finding of irretrievable breakdown under this section is a determination that

there is no reasonable prospect of reconciliation. The finding must be supported

by evidence that:

i. The parties have lived separate and apart for a period of not less than 180

days immediately preceding the commencement of the proceeding, or

ii. There is serious marital discord adversely affecting the attitude of one or

both of the parties toward the marriage.

Agreement over irretrievable breakdown: If both parties by petition or otherwise have

stated under oath or affirmation that the marriage is irretrievably broken, or one of the

parties has so stated and the other has not denied it, the Tribal Court may make a

finding that the marriage is irretrievably broken. The Tribal Court may, in its

discretion, hold a hearing.

Marriage Counseling: The Tribal Court may, at its discretion, require marriage

counseling before a declaration of irretrievable breakdown is made.

Mediation: The Tribal Court may require the parties to go through mediation, which

is a process where a neutral third person assists and encourages parties in conflict to

reach a settlement of the dispute that is satisfactory to both parties, unless domestic

abuse is prevalent in the marital relationship.

Exception: If the Tribal Court determines that there is probable cause that one of the

parties, or a child of a party, has been physically or sexually abused by the other

party, the court shall not require or refer the parties to mediation or any other process

that requires parties to meet and confer without counsel, if any, present.

§3.07_ Annulment

Grounds for Annulment: When the validity of a marriage is disputed as a void or

voidable marriage, either party to the marriage may begin an action under §3.08 of

this title and the White Earth Rules of Civil Procedure to annul the marriage.

a. Void Marriage: A marriage that was void from its inception; a marriage that is

invalid whether or not a court declares its invalidity. Marriages are void:

i. On account of prohibition by law due to consanguinity, meaning of close

relation, or

ii. On account of either or both parties being under the age established for

matriage, or

iii. | On account of either party having a husband or wife still living, if

solemnized, without any decree of divorce or other legal proceeding. The

marriage is void, but 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, marries during the lifetime of such absent husband

or wife, the marriage shall be void only from the time that its nullity is

duly adjudged.

b. Voidable Marriage: A marriage that can be annulled because of its invalidity but

which remains valid until a court declares it invalid. A marriage shall be declared

voidable when there was no subsequent voluntary cohabitation of the parties and:

i. A party lacked capacity to consent to the marriage at the time the marriage

was solemnized due to:

1. A mental incapacity and the other party did not know of the

incapacity;

2. Being under the influence of alcohol, drugs, or other incapacitating

substances; or

3. The consent of either party was obtained by duress, force, or fraud.

ii. A party lacked the physical capacity to consummate the marriage and the

other party at the time of the marriage did not know of the incapacity.

iii. | A party was under the age for marriage established by §2.02.

2. Insufficient Grounds for Annulment:

a. No marriage shall be adjudged a nullity on the ground that one of the parties was

under the age of legal consent if both parties meet the requirements of common

law marriage or satisfy the conditions of marriage under this code.

b. The marriage of any person who lacked capacity to consent to the marriage at the

time the marriage was solemnized shall not be adjudged void after restoration to

capacity if it appears that the parties freely cohabited together as husband and

wife after such restoration.

$3.08 Action for Dissolution of Marriage

1. Commencement of Action for Dissolution of Marriage:

a. The plaintiff or moving party shall file with the Tribal Court and serve on the

respondent, in accordance with §3.03, a verified complaint concisely stating a

cause of action including:

i. The parties’ names;

ii. The name and address of the plaintiff's attorney or—if unrepresented—of

the plaintiff;

iii. The time within which the defendant must appear and defend; and

iv. Notice that a failure to appear and defend will result in a default judgment

against the defendant for the relief demanded in the complaint.

b. The clerk shall issue a summons in the name of the White Earth Tribal Court to

the parties.

c. Anaction for a dissolution of marriage is commenced upon filing a complaint and

paying the filing fees established by the Tribal Court. The respondent upon filing

a cross-complaint or answer, shall pay the established fee. The Tribal Court has

the discretion to waive all or a portion of the filing fee if indigence is proven,

keeping in mind that no person shall be barred from the Tribal Court because of

lack of funds.

2. Contents of a Complaint

a. The name and address of the plaintiff, and whether child support or spousal

maintenance is involved, the plaintiff's social security number, and any other

prior names.

b. The name and, if known, the address of the respondent, and whether child support

or spousal maintenance is involved, the respondent’s social security number, and

any other prior names;

The place, including county, and date of the parties’ marriage.

d. Whether or not a separate proceeding for dissolution is pending in a court other

than the White Earth Tribal Court.

e. A statement providing the grounds on which the Tribal Court may dissolve the

marriage.

f. Whether an order for protection is in effect and, if so, the jurisdiction in which it

was entered.

g. Any temporary or permanent maintenance, child support, custody, disposition of

property, attorney fees, costs, and disbursements applied for, without setting forth

amounts.

h. In proceedings where child support or spousal maintenance issues will be

addressed, the petition must include:

i. The name, social security number, age and date of birth of each living

minor or dependent child(ren) of the parties born before the marriage or

born or adopted after the marriage, and a reference to the expected date of

the birth of the child(ren) of the parties conceived during the marriage but

not yet born.

ii. If either party has a retirement or pension account, the name and address

of the agent along with the amount of each account.

i. A statement explaining the Tribal Court’s jurisdiction which includes the

enrollment status of the parties, if any.

§3.09 Temporary Hearings

If temporary relief is desired, but no agreement between the parties can be reached,

either party may request by motion, and the Tribal Court may grant, pending the final

disposition, a temporary order for:

a. For the temporary custody of and visitation rights to the minor child(ren) of the

parties of the marriage under Subchapter 4A of this Title;

b. For the temporary maintenance of either spouse under §3.12 of this Title;

c. For temporary child support of the child(ren) of the parties Chapter 10C of the

Child Support Code under this Title;

d. To award the temporary use and possession, exclusive or otherwise, of the family

home, furniture, household goods, automobiles, and other property of the parties

under §3.11 of this Title;

e. To restrain one or both parties from transferring, encumbering, concealing, or

disposing of property, except in the usual course of business or for the necessities

of life, and to account to the Tribal Court for all such transfers, encumbrances,

dispositions, and expenditures made after the temporary order has been served or

communicated in an open court.

f. To exclude a party from the family home of the parties or from the home of the

other party;

g. To require one party or both parties to perform or not to perform such additional

acts as will facilitate the just and speedy disposition of the proceedings or protect

the parties or their child(ren) from physical or emotional harm.

§3.10 Judgment and Decree of Divorce or Annulment:

Whenever the marriage shall be declared void or dissolved, the White Earth Tribal

Court shall have the power to impose further judgment as follows:

a. For the future care and custody of the minor child(ren) of the marriage under

Subchapter 4A of this Title. No preference in custody will be given to either

parent based on gender;

b. For the recovery from the party not granted the care and custody of the child(ren),

such amount of money, to contribute to future care, medical expenses, and

education, under Chapter 10C of this Title;

c. For future spousal maintenance for a reasonable amount of time deemed just and

proper, under §3.12 f this Title;

d. For the approval of any property settlement between the parties or recovery and

delivery to each of the parties any of their personal property in the possession or

control of the other at the time of the judgment, under §3.04 of this Title;

e. For the division or other disposition between the parties of the real and personal

property under §3.11 of this Title;

f. The Tribal Court shall have authority to change the name of any persons upon the

petition of such persons or upon the petition of the parents of the minor, under

Chapter 5 of this Title.

§3.11 Disposition of Property

Upon a dissolution of marriage, the Tribal Court may make such disposition of the

property of the parties acquired during the marriage 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

therefore, the charges or liens imposed to secure payment of alimony or support

money, and all the facts and circumstances of the case.

The Tribal Court shall order the parties to promptly execute all documents necessary

to effectuate the terms of its Judgment and Decree, if any. If either party fails to do so

within a Court specified period, the Judgment and Decree shall be sufficient to

transfer title or otherwise effectuate the exchange.

Household Goods, Furniture, and Other Property: the Tribal Court may award to

either spouse the household goods and furniture of the parties acquired during the

marriage, and may also order and decree to either spouse such part of the real and

personal estate of the other not acquired during the marriage, not exceeding in present

value, one-half thereof, as it deems just and reasonable, having regard to the amount

of property decreed under §3.01 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.

4. Homestead: The Tribal Court, upon a final decree of divorce or annulment, may

award the homestead to either party for such a period of time that may be determined

by the Tribal Court.

5. Pension Plans: The division of marital property that represents pension plan benefits

or rights in the form of future pension plan payments:

a. Is payable only to the extent of the amount of the pension plan benefit payable

under the terms of the plan;

b. Is not payable for a period that exceeds the time that pension plan benefits are

payable to the pension plan benefit recipient,

c. Is not payable in a lump sum amount from pension plan assets attributable in any

fashion to a spouse with the status of an active member, deferred retiree, or

recipient of a pension plan;

d. Ifthe former spouse to whom the payments are to be made dies prior to the end of

the specified payment period with the right to any remaining payments accruing

to an estate or to more than one survivor, is payable only to a trustee on behalf of

the estate or the group of survivors for subsequent apportionment by the trustee;

and

e. Inthe case of public pension plan, benefits or rights, may not commence until the

public plan member submits a valid application for a public pension plan benefit

and the benefit becomes payable.

f. The individual retirement account plans may provide in its plan document, if

published and made generally available, for an alternative marital property

division or distribution of individual retirement account plan assets. If an

alternative division or distribution procedure is provided, it applies in place of this

section.

§3.12_ Spousal Support

1. Necessary Findings. In a proceeding for dissolution of marriage, legal separation, or a

declaration of invalidity, the Tribal Court may grant a maintenance order for either

party only if it finds that the party seeking support:

a. Lacks sufficient property, including property apportioned to him or her, to

provide for his or her reasonable needs; or

b. Is unable to support himself or herself through appropriate employment or is the

custodian of the child(ren) whose age or condition is such that the custodian

should not be required to seek employment outside the home.

The Tribal Court may not take into account marital misconduct, but may consider

all relevant factors, including but not limited to:

i. The financial resources of the spouse seeking maintenance, including

marital property and child support.

ii. | How long it will take the spouse to get education or training necessary to

become self-supporting, and the likelihood, given the spouse’s age and

skills, that the spouse will become self-supporting.

iii. | The standard of living the couple established during the marriage.

iv. How long the marriage lasted.

v. How long a spouse who is a homemaker has been out of the work world,

and the extent to which that absence has diminished earning capacity.

vi. Any loss of earnings, seniority, retirement benefits, and other employment

opportunities forgone by the spouse seeking maintenance.

vii. The age and physical and emotional condition of the spouse seeking

maintenance.

viii. The ability of the spouse from whom maintenance is sought to meet needs

while meeting those of the spouse seeking maintenance.

ix. Each spouse’s contribution to the acquisition or increase in value of marital

property, and the contribution of a spouse who was a homemaker or helped

the other’s employment or business.

2. Determination of Amount: The support order shall be in such amounts and for such

periods of time as the Tribal Court deems just, without regard to marital misconduct,

and after considering all relevant factors, including:

Ba. 9

The financial resources of the party seeking support, including marital property

apportioned to him or her and their ability to meet their reasonable needs

independently;

The time necessary to acquire sufficient education or training to enable the party

seeking support to find appropriate employment,

The standard of living established during the marriage;

The education of one party during the marriage;

The duration of the marriage;

The age and physical and emotional condition of the party seeking support;

The ability of the party from whom support is sought to meet his or her needs

while meeting those of the spouse seeking support; and

Excessive or abnormal expenditures, destruction, concealment or fraudulent

disposition of community, joint tenancy and other property held in common.

3. Modification or Termination: The provisions of any decree respecting spousal

support may be modified only as to installments accruing subsequent to the motion

for modification, unless the party failed to honestly disclose their actual unmet needs,

and only upon a showing of changed circumstances that are substantial and

continuing. Unless otherwise agreed in writing or expressly provided in the decree,

the obligation to pay future spousal support is terminated upon the death of either

party or the remarriage of the party receiving support.

§3.13_ Setting Aside or Modifying Judgment

At any time before a divorce judgment becomes final, the Tribal Court or judge, upon

complaint of either party, shall have the power to set aside, alter, or modify so much of

the judgment as may provide for the appointment of a trustee or trustees for the care and

custody of minor child(ren), or the support or education and for the maintenance of

either party to the action; provided, however, that said judgment shall be a final judgment

as to any installment or payments of money or payments of property provided for therein

which have accrued up to the time either party shall file an action with the Tribal Court to

set the Judgment aside, alter or modify the same.

CHAPTER 4: CUSTODIAL PETITIONS

$4.01 Definitions

1. The following definitions shall be used for the following words within this chapter:

Custody: Responsibility for the well-being and general welfare of the child(ren).

b. Custody determination: A court decision and court orders and instructions

providing for the custody of the child(ren).

c. Custody proceeding: A proceeding in which a custody determination is one of

several issues, such as an action for dissolution, divorce, or separation, and

includes domestic abuse, and paternity. Does not include proceedings involving

child(ren) who are in need of protection or services.

d. Custodial parent: The person, also known as the custodian, who has the physical

custody of his or her biological or legal child(ren) at any particular time.

e. Designator: the person who has physical and/or legal custody of named child(ren)

in a petition to establish a Stand-By Custodian.

f. Extended Family: those who are considered extended family by virtue of their

relationship to any party to an action pursuant to this Code or the laws and the

tradition of the White Earth Band of Ojibwe.

g. Guardian: A person assigned by a court of law, other than a parent, having the

duty and authority to provide care and control of the child(ren).

h. Joint physical custody: Both parents have equal rights and responsibilities

regarding the residence and daily care of their child(ren).

i. Joint legal custody: Both parents have equal rights and responsibilities, including

the right to participate in major decisions regarding the child(ren)’s upbringing,

including education, health care, and religious training.

p.-

Non-custodial parent: the child(ren)’s parent who does not have primary physical

custody, or any person who otherwise has a legal obligation to provide support for

the child(ren).

Parent: includes natural or adoptive parent but does not include persons whose

parental rights have been suspended or terminated, nor does it include the unwed

father whose paternity has not been acknowledged or established.

Primary physical custody: the routine daily care, control, and residence of the

child(ren).

Third-party petitioner: a nonparent who has established a relationship with and/or

resided with the child(ren) has a rebuttable presumption of standing to petition the

Tribal Court for custody or visitation.

Sole physical custody: one parent having the rights and responsibilities regarding

the residence and daily care of their child(ren).

Sole legal custody: one parent having the right and responsibility, including the

right to make major decisions regarding the child(ren)'s upbringing, including

education, health care, and religious training.

Stand-by Custodian: A person(s) named by a custodian or designator as

temporary custodian of the child(ren).

$4.02 Jurisdiction

The White Earth Tribal Court shall have authority to determine the custody of any

child(ren) where the Tribal Court has personal and subject matter jurisdiction of the

parties and child(ren) subject to the action.

Construction: The Tribal Court shall construe this section liberally to exercise

maximum jurisdiction consistent with applicable tribal, state, and federal law.

Personal Jurisdiction:

In a proceeding under this Code to determine custody, the White Earth Tribal

Court may exercise personal jurisdiction over a resident individual, or the

individual’s guardian or conservator.

The Tribal Court may exercise personal jurisdiction over a nonresident individual,

or the individual’s guardian or conservator, if any of the following applies:

i. The individual is personally served with notice within the White Earth

Reservation;

ti. The individual submits to the jurisdiction of the White Earth Tribal Court

by consent, by entering a general appearance, or by filing a responsive

document having the effect of waiving any objection to personal

jurisdiction;

iii. The individual resided with the child(ren) on the Reservation;

iv. The individual resided on the White Earth Reservation and provided

prenatal expenses or support for the child(ren);

v. The child(ren) resides on the White Earth Reservation as a result of the acts

or directives of the individual; or

vi. There is any other basis consistent with the Constitution of the United

States, the law of the Minnesota Chippewa Tribe, and the White Earth

Band of Ojibwe for the exercise of personal jurisdiction.

4. Simultaneous Proceedings in Another Jurisdiction: The Tribal Court may exercise

jurisdiction to establish a custody order if the petition or comparable pleading is filed

after a petition or comparable pleading is filed in another court only if all of the

following apply:

Cc.

The petition in Tribal Court is filed before the expiration of the time allowed in

the other court for filing a responsive pleading challenging the exercise of

jurisdiction by the other state or tribe.

The contesting party timely challenges the exercise of jurisdiction in the other

court.

The contesting parties agree to a voluntary transfer.

5. Continuing Exclusive Jurisdiction:

The Tribal Court has continuing, exclusive jurisdiction over a child support order

it has issued for as long as the child(ren) is an enrolled member of the Tribe, or

for as long as the Reservation remains the residence of the obligor, the individual

obligee, or the child(ren) for whose benefit the support order is issued, or until

each individual party has filed written consent with the Tribal Court for a court of

another state or tribe to modify the Order and assume continuing, exclusive

jurisdiction.

The Tribal Court shall recognize the continuing, exclusive jurisdiction of a court

of another state or tribe that has issued a child support order consistent with

foreign child support orders. This requires recognition that the Orders be

consistent with our approach ete.

A temporary support order issued ex-parte or pending resolution of a

jurisdictional conflict does not create continuing, exclusive jurisdiction in the

issuing tribunal.

§4.03 Service of Petition

The petitioner shall be responsible for serving the petition to the respondent. Service

of the summons and complaint may be accomplished by certified mail or personal

service.

Service by certified mail may be accomplished by mailing a copy of the summons

and complaint to the person to be served. The petitioner shall file an affidavit of

service by certified mail with a signed receipt of certified mail with the Tribal

Court.

Personal service may be made by requesting the White Earth Police Department