(a) Dismissal when tribal court has exclusive jurisdiction.
Subject to the terms of any agreement between the state and the tribe under 25 United States Code section 1919:
(1) If the court receives information at any stage of the proceeding suggesting that the Indian child is already the ward of the tribal court or is domiciled or resides within a reservation of an Indian tribe that has exclusive jurisdiction over Indian child custody proceedings under 25 United States Code section 1911 or 1918 the court must expeditiously notify the tribe and the tribal court that it intends to dismiss the case upon receiving confirmation from the tribe or tribal court that the child is a ward of the tribal court or subject to the tribe's exclusive jurisdiction.
(2) When the court receives confirmation that the child is already a ward of a tribal court or is subject to the exclusive jurisdiction of an Indian tribe, the state court must dismiss the proceeding and ensure that the tribal court is sent all information regarding the proceeding, including, but not limited to, the pleadings and any state court record. If the local agency has not already transferred physical custody of the Indian child to the child's tribe, the state court must order that the local agency do so forthwith and hold in abeyance any dismissal order pending confirmation that the Indian child is in the physical custody of the tribe.
(3) This section does not preclude an emergency removal consistent with 25 United States Code section 1922, 25 Code of Federal Regulations part 23.113, and Welfare and Institutions Code section 319 to protect the child from risk of imminent physical damage or harm and if more time is needed to facilitate the transfer of custody of the Indian child from the county welfare department to the tribe.
(Subd (a) amended effective January 1, 2020.)
(b) Presumptive transfer of case to tribal court with concurrent state and tribal jurisdiction.
Unless the court finds good cause under subdivision (d), the court must order transfer of a case to the tribal court of the child's tribe if the parent, the Indian custodian, or the child's tribe requests.
(c) Documentation of request to transfer a case to tribal court.
(1) The parent, the Indian custodian, or the child's tribe may request transfer of the case, either orally or in writing or by filing Notice of Petition and Petition to Transfer Case Involving an Indian Child to Tribal Jurisdiction (form ICWA-050).
If the request is made orally, the court must document the request and make it part of the record.
(2) Upon receipt of a transfer petition, the state court must ensure that the tribal court is promptly notified in writing of the transfer petition. This notification may request a timely response regarding whether the tribal court wishes to decline the transfer.
(Subd (C) amended effective January 1, 2020.)
(d) Cause to deny a request to transfer to tribal court with concurrent state and tribal jurisdiction.
(1) Either of the following circumstances constitutes mandatory good cause to deny a request to transfer:
(A) One or both of the child's parents objects to the transfer in open court or in an admissible writing for the record; or
(B) The tribal court of the child's tribe declines the transfer.
(2) In assessing whether good cause to deny the transfer exists, the court must not consider:
(A) Socioeconomic conditions and the perceived adequacy of tribal social services or judicial systems;
(B) Whether the child custody proceeding is at an advanced stage if the Indian child's parent, Indian custodian, or tribe did not receive notice of the child custody proceeding until an advanced stage. It must not, in and of itself, be considered an unreasonable delay for a party to wait until reunification efforts have failed and reunification services have been terminated before filing a petition to transfer;
(C) Whether there have been prior proceedings involving the child for which no transfer petition was filed;
(D) Whether transfer could affect the placement of the child; or
(E) Whether the Indian child has cultural connections with the tribe or its reservation.
(3) If it appears that there is good cause to deny a transfer, the court must hold an evidentiary hearing on the transfer and make its findings on the record.
(Subd (d) amended effective January 1, 2020; previously amended effective January 1, 2013.)
(e) Evidentiary burdens.
(1) The burden of establishing good cause to deny a request to transfer is on the party opposing the transfer.
(2) If the court believes, or any party asserts, that good cause to deny the request exists, the reasons for that belief or assertion must be stated orally on the record or in writing, in advance of the hearing, and made available to all parties who are requesting the transfer, and the petitioner must have the opportunity to provide information or evidence in rebuttal of the belief or assertion.
(Subd (e) relettered effective January 1, 2020; adopted as subd (f); previously amended effective January 1, 2013.)
(f) Order on request to transfer.
(1) The court must issue its final order on the Order on Petition to Transfer Case Involving an Indian Child to Tribal Jurisdiction (form ICWA-060).
(2) When a matter is being transferred from the jurisdiction of a juvenile court, the order must include:
(A) All of the findings, orders, or modifications of orders that have been made in the case;
(B) The name and address of the tribe to which jurisdiction is being transferred;
(C) Directions for the agency to release the child case file to the tribe having jurisdiction under section 827.15 of the Welfare and Institutions Code;
(D) Directions that all papers contained in the child case file must be transferred to the tribal court; and
(E) Directions that a copy of the transfer order and the findings of fact must be maintained by the transferring court.
(Subd (f) relettered effective January 1, 2020; adopted as subd (g); previously amended effective January 1, 2016.)
(g) Advisement when transfer order granted.
When the court grants a petition transferring a case to tribal court under Welfare and Institutions Code section 305.5, Family Code section 177(a), or Probate Code section 1459.5(b) and rule 5.483, the court must advise the parties orally and in writing that any appeal to the order for transfer to a tribal court must be made before the transfer to tribal jurisdiction is finalized and that failure to request and obtain a stay of the order for transfer will result in a loss of appellate jurisdiction.
(Subd (g) relettered effective January 1, 2020; adopted as subd (h); previously amended effective January 1, 2016.)
(h) Proceeding after transfer.
When, under Welfare and Institutions Code section 305.5, Family Code section 177(a), or Probate Code section 1459.5(b), the court transfers any proceeding listed in rule 5.480, the court must proceed as follows:
(1) Dismiss the proceeding or terminate jurisdiction if the court has received proof that the tribal court has accepted the transfer of jurisdiction;
(2) Make an order transferring the physical custody of the child to a designated representative of the tribal court (not necessarily the same "designated representative" identified in the Notice of Designation of Tribal Representative and Notice of Intervention in a Court Proceeding Involving an Indian Child (form ICWA-040)); and
(3) Include in the Order on Petition to Transfer Case Involving an Indian Child to Tribal Jurisdiction (form ICWA-060) all contact information for the designated tribal court representative.
(Subd (h) relettered effective January 1, 2020; adopted as subd (h); previously relettered as subd (i) effective January 1, 2016.)
Rule 5.483 amended effective January 1, 2020; adopted effective January 1, 2008; previously amended effective January 1, 2013 and January 1, 2016.
Advisory Committee Comment
Once a transfer to tribal court is finalized as provided in rule 5.483(h), the appellate court lacks jurisdiction to order the case returned to state court (In re M.M. (2007) 154 Cal.App.4th 897).
As stated by the Court of Appeal in In re M.M., the juvenile court has the discretion to stay the provisions of a judgment or order awarding, changing, or affecting custody of a minor child "pending review on appeal or for any other period or periods that it may deem appropriate" (Code Civ. Proc., § 917.7), and the party seeking review of the transfer order should first request a stay in the lower court. (See Nuckolls v. Bank of California, Nat. Assn. (1936) 7 Cal.2d 574, 577 [61 P.2d 927] ["Inasmuch as the [L]egislature has provided a method by which the trial court, in a proper case, may grant the stay, the appellate courts, assuming that they have the power, should not, except in some unusual emergency, exercise their power until the petitioner has first presented the matter to the trial court."].) If the juvenile court should deny the stay request, the aggrieved party may then petition this court for a writ of supersedeas pending appeal. (Cal. Rules of Court, rule 8.112).
Subdivision (g) and this advisory committee comment are added to help ensure that an objecting party does not inadvertently lose the right to appeal a transfer order.