When dealing with the allocation of parental responsibilities in Illinois, it is common for there to be a lot of emotions. Deciding where a child will live and who is responsible for the child is a tough decision, even for the courts. It is not something to take lightly. If your child is Native American, you may run into further complications that could make the situation even more difficult.

According to the Illinois State Bar Association, the Indian Child Welfare Act is a federal law from 1978 that the government created to help preserve Native American culture and help prevent the needless removal of Native American children from their parents and tribe. This act often comes into play in child custody hearings of all types.

The main thing to know about it is that it takes the jurisdiction of the court and hands it over to the tribe. This means that if your child is part Native American and the other parent wishes to gain an edge in your hearing allocating parental responsibilities, he or she could evoke the ICWA and have your case moved to a tribal court.

To help limit misuse of the law, which is common when parents wish to gain an advantage or otherwise avoid state law they see as unfair, the parent evoking the ICWA must show the child meets the definition of a Native child. This means he or she is eligible for membership in a tribe and is the biological child of a member or who is a member of a tribe him or herself. It is not uncommon for courts to also require proof that the child has lived in a Native American family unit prior to this case.

However, Illinois does not have a formal standing on when the ICWA may apply, which means if you have a child who is Native American, then you need to be aware of the potential issues with the ICWA. This information is for education and is not legal advice.