TITLE 5 DOMESTIC RELATIONS
CHAPTER 5-1 DOMESTIC RELATIONS
5-1-1 Preamble
This Code shall be known as the Colville Tribal Domestic Relations Chapter.
MARRIAGE
5-1-30 Marriage License
(1) No marriage shall be performed under authority of this Chapter unless the parties have first obtained a marriage license from the clerk of the Tribal Court.
(2) Upon payment of a fee to be set by the Tribal Court, the clerk shall issue a marriage license to persons who appear entitled to be married as provided in this Chapter.
(3) The clerk shall keep a public record of all marriage licenses and certificates issued.
(4) The marriage license, properly endorsed by the authorized person performing the marriage, shall be returned to the clerk who shall issue a marriage certificate to the parties.
5-1-31 Existing Marriages
(1) All marriages performed other than as provided for in this Chapter, which are valid under the laws of the jurisdiction where and when performed, are valid within the jurisdiction of the Tribes.
(2) All marriages performed or entered into on the Reservation prior to the effective date of this Chapter, including those perfected according to Tribal custom, are declared valid for all purposes under this Chapter. Parties to such marriages may obtain a marriage certificate upon proof to the clerk by affidavit or otherwise of the validity of their marriage, and payment of a fee to be set by the Court.
(3) Customary and common law marriages entered into subsequent to the adoption of this Chapter shall not be recognized by Tribal law but may be recognized as valid pursuant to 5-1-31(1) of this Chapter.
5-1-32 Persons Who May Marry
No marriage license shall be issued or marriage performed unless the persons to be married meet the following qualifications:
(1) She or he is at least 16 years old and, if over 16 years of age but less than 18 years of age, has the written consent of his/her parent or guardian, properly notarized, to marry;
(2) At least one of the persons to be married is an enrolled member of the Confederated Tribes of the Colville Reservation;
(3) She or he has obtained a blood test to detect venereal disease within 30 days prior to the marriage and such test results were negative or she or he files an affidavit attesting to the fact that she or he is free of venereal disease. A certificate of the test results or the affidavit shall be presented to the clerk before any license is issued.
Amended 6/7/89, Res. 1989-514
5-1-33 Who May Perform Marriages
(1) A marriage may be solemnized and performed on the Reservation by any of the following:
(2) No marriage solemnized or performed before any person professing to have authority to marry shall be invalid for want of such authority, if consummated in the belief of the parties or either of them that he had such authority and that they have been lawfully married.
5-1-34 Marriage Ceremony
No particular form of marriage ceremony is required, provided, however, that the persons to be married must declare in the presence of the person performing the ceremony, that they take each other as husband and wife, and he must thereafter declare them to be husband and wife.
5-1-35 Void and Voidable Marriages
(1) Marriages between an ancestor and his descendant, between brothers and sisters, of the half as well as the whole blood, between an uncle and his niece or an aunt and her nephew, or between first cousins are void from the beginning, whether or not the degree of relationship is legitimate or illegitimate.
(2) Marriages between a person who is at the time of the marriage married to another person still living are void; provided, however, that such marriages will be considered valid until ruled otherwise by a court of competent jurisdiction if the party previously married:
(3) When a marriage is contracted in good faith and in the belief that it is a valid marriage, the issue of such marriage born or conceived prior to the voiding or receiving notice of the invalidity of the marriage for any reason shall be the legitimate issue of both parents.
(4) If neither party to a marriage is enrollable in the Confederated Tribes or if either party to a marriage is incapable as a result of some cause or mental dysfunction or legal incapacity to enter into the marital state and such cause appears to be permanent, or if the consent of either party to marry was obtained by force or fraud; the marriage is voidable.
ANNULMENT
5-1-70 Grounds for Annulment
A marriage may be annulled for any of the following causes existing at the time of marriage:
(1) That the party on whose behalf it is sought to have the marriage annulled, was under the age of 18 years, and such marriage was contracted without the consent of his or her parents or guardian, or persons having charge of him or her, unless, after attaining the age of consent, such party freely cohabits with the other party to the marriage as husband and wife;
(2) That the former husband or wife of either party was living, and the marriage with such former husband or wife was then in force;
(3) That either party was of unsound mind, unless such party, after coming into reason, freely cohabited with the other as husband and wife;
(4) That the consent of either party was obtained by fraud, unless such party afterward, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband or wife.
(5) That the consent of either party was obtained by force, unless such party afterwards freely cohabited with the other as husband and wife; or
(6) Impotence which continues and appears to be incurable.
(7) That neither party to the marriage was enrollable as a member of the Confederated Tribes.
5-1-71 Action to Annul - Parties and Limitations
An action to obtain a Decree of Annulment of a marriage, for causes mentioned ln the preceding section, must be commenced within the periods and by the parties as follows:
(1) For causes mentioned in Subsection 5-1-70(1), by the party to the marriage who was married under the age of legal consent, within two years after arriving at the age of consent, or by a parent, guardian, or other person having charge of such minor male or female, at any time before such married minor has arrived at the age of legal consent;
(2) For causes mentioned in Subsection 5-1-70(2) by either party during the life of the other, or by such former husband or wife;
(3) For causes mentioned in Subsection 5-1-70(3) by the party injured, or relative or guardian of the party of unsound mind, at any time before the death of either party;
(4) For causes mentioned in Subsection 5-1-70(4) by the party injured, within two years after the discovery of the facts constituting a fraud;
(5) For causes mentioned in Subsection 5-1-70(5) by injured party, within four years after the marriage.
(6) For causes mentioned in Subsection 5-1-70(6) by the injured party, within two years after the marriage.
5-1-72 Legitimacy of Children
When a marriage is annulled for any reason, children begotten before judgment are legitimate and succeed to the estate of both parents. The Court may at the time of granting the annulment or at any future time, make necessary orders for the custody and support of said child or children as the circumstances and surroundings of the parents may require.
5-1-73 Conclusiveness of Judgment of Annulment
A judgment of annulment of a marriage is conclusive only as against the parties to the action and those claiming under them.
DISSOLUTION OF MARRIAGE
5-1-100 Dissolution and Annulment Procedure
Proceedings in dissolution and annulment shall be commenced and conducted in the manner provided by law for civil cases, except as otherwise specifically provided. A final Decree of Divorce shall restore the parties to the status of unmarried persons.
5-1-101 Dissolution and Annulment Residency Requirement
In order to maintain an action for divorce or annulment in the Tribal Court, at least one party to the marriage must be an enrolled member of the Colville Tribes and have lived within the territorial jurisdiction of the Tribal Court for at least three months prior to bringing the action, except that an annulment may be granted where either party lives within the jurisdiction of the Court and the marriage was performed under authority of this Chapter.
5-1-102 Grounds for Dissolution
The sole grounds for dissolution shall be that the marriage is irretrievably broken.
5-1-103 Right to Dissolution
The husband may in all cases obtain a dissolution from his wife for the same causes and in the same manner as the wife may obtain a dissolution from her husband.
5-1-104 Maintenance and Suit Money; Restraint
(1) The Court may order either party to pay to the clerk for the benefit of the other party a sum of money for the temporary or permanent separate support and maintenance of the adverse party and the children, and to enable such party to prosecute and defend the action.
(2) The Court may temporarily or permanently restrain either party from doing certain acts harmful to the other or to the children, or to the property of either, during the pendency of the dissolution proceedings. Violation of a current and valid restraining order shall be a Class B offense under the Tribal Criminal Chapter. In addition, civil contempt or expulsion proceedings may be brought against any person violating a valid court order obtained pursuant to this section.
5-1-105 Pleadings; Findings; Decree
The petition for dissolution shall be in writing and signed by the petitioner or the petitioner's counsel or attorney. No Decree of Dissolution shall be granted upon default or otherwise, except upon legal evidence taken in the cause by the Court who shall make and file its findings and decree upon the evidence. The decree shall become absolute upon entry unless the judge orders otherwise in which case the period of time until which it becomes absolute may be up to three months.
5-1-106 Disposition of Property and Children
When a Decree of Dissolution is made the Court may make such orders in relation to the children, property, and parties, and the maintenance of the parties and children by alimony and child support, as may be equitable. Subsequent changes, modifications or new orders may be made by the Court with respect to the custody of the children as shall be reasonable and proper.
5-1-107 Child Custody Proceeding - Commencement - Notice - Intervention
(1) A child custody proceeding is commenced in the Tribal Court:
(a) By a parent:
(b) By a person other than a parent, by filing a petition seeking custody of the child; but only if the child is not in the physical custody of one of its parents or if the petitioner alleges that neither parent is a suitable custodian.
(2) Notice of a child custody proceeding shall be given to the child's parent, guardian and custodian, who may appear and be heard and may file a responsive pleading. The Court may, upon a showing of good cause, permit the intervention of other interested parties.
5-1-108 Child Custody - Relevant Factors in Awarding Custody
The Court shall determine custody in accordance with the best interests of the child and, secondarily, the traditions and customs of the Colville Indian people. The Court shall consider all relevant factors including:
(1) The wishes of the child's parent or parents as to visitation privileges;
(2) The wishes of the child as to his custodian and as to visitation privileges;
(3) The interaction and interrelationship of the child with his or her parent or parents, his or her siblings, and any other person who may significantly affect the child's best interests;
(4) The child's adjustment to his home, school, and community; and
(5) The mental and physical health of all individuals involved.
(6) The Indian heritage of the child.
The Court shall not consider conduct of a proposed guardian that does not affect the welfare of the child.
5-1-109 Child Custody - Temporary Custody Order - Vacation of Order
(1) A party to a custody proceeding may move for a temporary custody order. The motion must be supported by affidavit. The Court may award temporary custody after a hearing, or, if there is no objection, solely on the basis of the affidavits.
(2) If a proceeding for dissolution of marriage, legal separation, or declaration of invalidity is dismissed, any temporary custody order is vacated unless a parent or the child's custodian moves that the proceeding continue as a custody proceeding and the Court finds, after a hearing, that the circumstances of the parents and the best interests of the child require that a custody decree be issued.
(3) If a custody proceeding commences in the absence of a petition for dissolution of marriage, legal separation, or declaration of invalidity, is dismissed, any temporary order is vacated.
5-1-110 Child Custody - Temporary Custody Order or Modification of Custody Decree - Affidavits Required
A party seeking a temporary custody order or modification of a custody decree shall submit together with the motion, an affidavit setting forth facts supporting the requested order or modification and shall give notice, together with a copy of the affidavit, to other parties to the proceedings, who may file opposing affidavits. The Court shall deny the motion unless it finds that adequate cause for hearing the motion is established by the affidavits, in which case it shall set a date for hearing on an order to show cause why the requested order or modification should not be granted.
5-1-111 Child Custody - Interview with Child by Court - Advice of Professional Personnel
(1) The Court may interview the child in chambers to ascertain the child's wishes as to his custodian and as to visitation privileges. The Court may permit counsel to be present at the interview. The Court shall cause a record of the interview to be made and to be made part of the record in the case.
(2) The Court may seek the advice of professional personnel or persons knowledgeable in the welfare of Indian children whether or not they are employed on a regular basis by the Court. The advice given shall be in writing and shall be made available by the Court to counsel upon request. Counsel may call for cross-examination of any persons consulted by the Court.
5-1-112 Child Custody - Priority Status of Proceedings - Hearings - Record - Expenses of Witnesses
(1) Custody proceedings shall receive priority in being set for hearing.
(2) Either party may petition the Court to authorize the payment of necessary travel and other expenses incurred by any witness whose presence at the hearing the Court deems necessary to determine the best interests of the child.
(3) The Court without a jury shall determine questions of law and fact. If it finds that a public hearing may be detrimental to the child's best interests, the Court may exclude the public from a custody hearing, but may admit any person who has a direct and legitimate interest in the work of the Court.
(4) If the Court finds it necessary to protect the child's welfare that the record of any interview, report, investigation, or testimony in a custody proceeding be kept secret, the Court may make an appropriate order sealing the record.
5-1-113 Child Custody - Visitation Rights
(1) A parent, grandparent, or any other person able to show to the Court a traditional right or custom of child care, and not granted custody of the child may be granted reasonable visitation rights unless the Court finds, after a hearing, that visitation would endanger the child's physical, mental, or emotional health. The Court may order visitation rights for any person when visitation may serve the best interest of the child whether or not there has been any change of circumstances.
Any person may petition the Court for visitation rights at any time including, but not limited to, custody proceedings.
(2) The Court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child but the Court shall not restrict a parent's or grandparent's visitation rights unless it finds that the visitation would endanger the child's physical, mental, or emotional health.
5-1-114 Child Custody - Powers and Duties of Custodian - Supervision by Appropriate Agency When Necessary
(1) Except as otherwise agreed by the parties in writing at the time of the custody decree, the custodian may determine the child's upbringing, including his education, health care, and religious training, unless the Court after hearing, finds, upon motion by the noncustodial parent, that in the absence of a specific limitation of the custodian's authority, the child's physical, mental, or emotional health would be endangered.
(2) If both parents or all contestants agree to the order, or if the Court finds that in the absence of the order the child's physical, mental, or emotional health would be endangered, the Court may order an appropriate agency which regularly deals with children to exercise continuing supervision over the case to assure that the custodial or visitation terms of the decree are carried out. Such order may be modified by the Court at any time upon petition by any party.
5-1-115 Child Custody Decree - Modification
(1) Except as otherwise provided in this Chapter, the Court shall not modify a prior custody decree unless it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the Court at the time of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child. In applying these standards the Court shall retain the custodian established by the prior decree unless:
(2) If the Court finds that a motion to modify a prior custody order has been brought in bad faith, the Court shall assess the attorney's fees and court costs of the custodian against the petitioner.
5-1-116 Child Support - Apportionment of Expense
In a proceeding for dissolution of marriage, legal separation, declaration of invalidity, maintenance, or child support, after considering all relevant factors but without regard to marital misconduct, the Court may order either or both parents owing a duty of support to any child of the marriage dependent upon either or both spouses to pay an amount reasonable or necessary for the support of the child.
5-1-117 Minor or Dependent Child - Court Appointed Attorney to Represent - Payment of Costs, Fees and Disbursements
The Court may appoint an attorney to represent the interests of a minor or dependent child with respect to his custody, support, and visitation. The Court shall enter an order for costs, fees, and disbursements in favor of the child's attorney. The order shall be made against either or both parents, except that, if both parties are indigent, the costs, fees, and disbursements may be borne by the Tribes.
5-1-118 Support or Maintenance Payments -To Whom Paid
(1) The Court may, upon its own motion or upon motion of either party, order support or maintenance payments to be made to:
(2) If payments are made to the clerk of Court:
5-1-119 Support or Maintenance Payments - Order to Make Assignment of Periodic Earnings or Trust Income - Duty of Payor to Withhold and Transmit
The Court after hearing may order the person obligated to pay support or maintenance to make an assignment of a part of his periodic earnings or trust income to the person or agency entitled to receive the payments. The assignment is binding on the employer, trustee or other payor of the funds two weeks after service upon him of notice that it has been made. The payor shall withhold from the earnings or trust income payable to the person obligated to support the amount specified in the assignment and shall transmit the payments to the person specified in the order. The payor may deduct from each payment a sum not exceeding ten dollars as reimbursement for costs. An employer shall not discharge or otherwise discipline an employee as a result of a wage or salary assignment authorized by this section.
5-1-120 Payment of Costs, Attorney's Fees, etc.
The Court from time to time after considering the financial resources of both parties may order a party to pay a reasonable amount for the cost to the other party for maintaining or defending any proceeding under this Chapter and for reasonable counsel or attorney's fees or other professional fees in connection therewith, including sums for legal services rendered and costs.
SEPARATE MAINTENANCE AND PROPERTY RIGHTS
5-1-150 Separate Maintenance
(1) A wife, living on the lands of the Colville Reservation, who through no fault of her own or by agreement with her husband, is living separate and apart from her husband, or whose husband has deserted her, or has failed to support her when otherwise able to do so, may maintain an action for a decree of separate maintenance.
(2) During the pendency of the action the Court may order the husband to pay temporary maintenance and suit money as in an action for dissolution.
(3) If it appears that the wife is entitled to such, the Court shall grant a decree of separate maintenance awarding custody of children, maintenance, child support and expenses of suit as may be equitable under the circumstances.
5-1-151 Property Rights of Married Persons
(1) Either a wife or a husband can obtain, own, hold, give, sell or otherwise deal with real or personal property as if they were unmarried.
(2) Either a wife or a husband can enter into contracts and sue or be sued to the same extent and in the same manner as if unmarried.
(3) Neither a wife nor a husband nor the property of either in which their spouse has no interest is liable for the debts or obligations of the other spouse solely by reason of marriage to the other spouse.
(4) A conveyance, transfer, or lien executed by either husband or wife in favor of the other shall be valid to the same extent as between other persons.
(5) The Colville Confederated Tribes shall accept the community property laws of the State of Washington currently in force at the time of any decree or order under this Chapter as its own; except as specifically provided in this Chapter.
5-1-152 Family Expenses
The expenses of the family and the education of the children are chargeable upon the property of both husband and wife or either of them, and they may be enforced jointly or separately.
5-1-153 Custody of Children and Property
(1) Absent a judicial decree of property distribution or custody or otherwise, neither the husband or the wife can remove the other or the children from the place of family dwelling without the consent of the other, provided, however, that children may be removed from the family residence by one parent without the consent of the other if such appears to be reasonably necessary to protect the physical well being of the children, the children are thereafter provided with a more proper living environment, and application is made to the Court within ten days for an order of the Court, modifiable at any time, approving such removal of the children.
(2) If either spouse abandons the other spouse, the abandoned spouse is entitled to custody of and legal guardianship over all children under the age of 18 unless a court of competent jurisdiction shall otherwise direct. Abandonment shall be defined as voluntary absence of a parent from the home in which the children reside for a period of 180 days without intent to return.
GUARDIANSHIP
5-1-180 Jurisdiction
(1) The Tribal Court shall have authority, whenever it appears necessary or convenient, to appoint guardians for the persons and/or their estates, or for the purpose of actual or contemplated litigation (guardian ad litem) of either minors or persons incompetent by reason of physical or mental sickness or deficiency, advanced age, or chronic use of drugs or alcohol.
(2) The Tribal Court shall have authority to appoint guardians when the person for whom the guardianship is sought is a member of the Colville Tribes or the child of a member of the Tribes, whether or not he or she resides on the Reservation.
(3) The Tribal Court may, in its discretion, refer matters concerning the guardianship of a minor to a Juvenile Court.
(4) The Tribal Court may, in the process of administering an estate for which there is a valid will containing a designation of a guardian for minor children if orphaned by the deceased's death, appoint the person therein designated as guardian of the minors involved without the necessity of a separate guardianship hearing.
(5) If the person so designated is unable or unwilling to serve, or if such person's appointment is objected to by the child over 14 years of age, or if the Court deems such to be in the minor's best interest, a separate guardianship hearing shall be held as provided herein.
5-1-181 Petition
(1) Except as provided in the preceding section, guardianship proceedings shall be initiated by the filing of a petition by a relative or other person on behalf of the minor or incompetent, or by a minor himself if over 14 years of age. The Court may initiate proceedings to appoint a guardian if such appointment reasonably appears necessary and no other person has initiated such proceedings.
(2) The petition shall set forth the name of the petitioner; the petitioner's relationship to the minor or incompetent and shall list all known relatives of the minor or incompetent and their addresses, relationships and ages insofar as is known to petitioner; shall list all property of the minor or incompetent, real and personal, known to petitioner; shall list in detail the present conditions and circumstances which warrant the appointment of a guardian; shall pray that Letters of Guardianship be issued to himself or some other suitable person to act as guardian of the minor or incompetent.
5-1-182 Notice; Hearing
(1) The petitioner, or the clerk of the Court, if a minor or the Court itself initiates the proceeding, shall cause notice of the hearing to be given by mail or personal service to all known interested persons listed on the petition not less than five days before a scheduled hearing. Such notice need not be given in the case of a minor whose parents appear and consent to waive such notice prior to the hearing or in the case of an adult where the spouse and children living on the Reservation appear and waive such notice. An appearance and waiver may be made personally or by affidavit to the Court.
(2) Hearing for minor. At a hearing conducted to appoint a guardian for a minor, the Court shall: examine the petition; determine the need to have a guardian appointed; examine the minor (if over 14 years of age) to determine who he would prefer to have as his guardian; determine which person, either the petitioner or some other person, is most suitable to act as guardian, and that person's willingness to act as such; and make an order appointing a guardian, setting forth the scope of the guardian's authority, whether or not security for his performance is to be required, and the duration of such appointment.
(3) Hearing for incompetent. At a hearing conducted to appoint a guardian for an incompetent, the Court shall: examine the petition; determine the need to have a guardian appointed by taking such testimony as any interested party wishes to present, but including not less than two doctors' reports, written or oral, under oath, to the effect that the incompetent is not presently able to handle his property or affairs, the anticipated duration of the incapacity, and that the best interests of the incompetent will be served by having a guardian appointed; determine which person, either the petitioner or some other person, is most suitable to act as guardian, and that person's willingness to act as such; and make an order appointing a guardian, setting forth the authority of the guardian, whether or not security for his performance is to be required, and the duration of such appointment.
5-1-183 Who May Serve as Guardian
Any adult person 21 years of age or older and subject to the jurisdiction of the Tribal Court may serve as a guardian. Preference shall be given to relatives of the minor or incompetent in order of their closeness of relationship and some preference shall also be given to a person with whom the minor or incompetent is living at the time of the guardianship hearing. Preference shall be given to the person preferred to act as his guardian by a minor or incompetent over 14 years of age, but in all cases, the Court shall determine the best interests of the minor or incompetent in selecting a guardian.
5-1-184 Security for Faithful Performance of Duties
The Court may, but need not, require a guardian to provide security in the form of a bond or otherwise to assure the faithful performance of the guardian's duties. Any surety of any such security will be deemed to have consented to the jurisdiction of the Tribal Court for purposes of action against such security.
5-1-185 Oath; Letters of Guardianship
(1) The guardian appointed by the Court shall be required to take an oath, the form of which to be prescribed by the Court, to the effect that he will faithfully perform his duties as guardian.
(2) Upon taking the oath and filing with the Court such security, if any, as may have been required, the guardian shall be issued Letters of Guardianship, issued by the clerk under the seal of the Court, as evidence of his appointment. Any limitations in the authority of the guardian shall be set forth on the Letters so issued.
5-1-186 Inventory and Appraisement
(1) Within 45 days after the appointment of a general guardian or guardian of the property or estate of a minor or incompetent, the guardian shall prepare and submit to the Court an inventory and appraisement of the estate.
(2) The appraisement shall be made by three disinterested persons who shall certify under oath to their appraisement and may receive reasonable compensation for their services.
(3) No appraisement shall be required of items of obvious, readily ascertainable value, e.g. bank account assets, or where the value of the entire estate is reasonably believed by the guardian to be less than $1,000.00. If no appraisement is required, the guardian shall certify under oath to the obvious or estimated value of the assets not appraised.
5-1-187 Annual Accounting
(1) The guardian of every estate in value over $1,000.00 shall submit an annual account of the estate to the court for approval, on such notice as the Court may direct, in each year in which the value of the estate is or is reasonably believed to be in excess of $1,000.00.
(2) Such account shall be verified on the oath of the guardian and shall contain an accounting of all additions to and any withdrawals from the estate, and shall be accompanied by supporting cancelled checks, vouchers, receipts, statements, etc.
5-1-188 Guardian's Compensation
(1) No guardian shall receive any compensation for acting as such, without the prior approval of the Court.
(2) The guardian of an estate in excess of $3,000.00 in value may receive annual compensation for acting as such in amount not less than $25.00 nor greater than 10% of the gross income of the estate; such compensation must be approved by the Court.
(3) The guardian of an estate less than $3,000.00 in value shall receive no compensation unless specifically ordered by the Court for extraordinary service to the estate.
5-1-189 Powers and Responsibilities of Guardian
(1) Except as otherwise specifically ordered or limited by the Court:
(2) A guardian of any kind may petition the Court for authority to do any act about which he is uncertain of his authority, and the Court may grant such authority after such notice and hearing, if any, as the Court may direct, if such appears to be consistent with the best interests of the minor or incompetent.
(3) A guardian of any kind shall stand in a fiduciary relationship to the minor or incompetent ward; shall exercise a high degree of care in managing the estate of his ward; shall derive no personal benefit of any kind from his management of the estate of his ward; and shall be civilly liable to said ward for any losses to the estate attributable to a breach of these duties. Action to enforce such liability may be brought by the ward or a subsequently appointed guardian on behalf of the ward within two years after the appointment of a new guardian or the removal of the incompetency or the arriving at the age of majority.
5-1-190 Discharge of Guardian
(1) Every guardian appointed as provided herein shall serve until discharged by the Court.
(2) A guardian of a minor, not otherwise incompetent, or the minor himself, may petition the Court on or after the date the minor reaches the age of majority to have the guardian discharged and the estate turned over to the minor. The Court shall grant such discharge with or without notice and hearing, upon the receipt of sufficient, competent evidence that the minor has reached the age of majority unless the minor appears to be otherwise incompetent, in which case a hearing shall be held to determine such fact.
(3) A person, other than a minor, who has had a guardian appointed for reasons of incompetency, or the guardian or a relative of such incompetent may petition the Court for a determination of his restoration to capacity and for the discharge of the guardian. The Court shall hold a hearing, after such notice to known interested persons as the Court shall direct, and receive evidence, both of a medical nature and otherwise, of the ward's competency. If it be found that the ward is of sound mind and capable of taking care of himself and his property, his restoration to capacity shall be adjudged and his guardianship and guardian discharged.
5-1-191 Guardianship Records
The clerk shall keep a separate, permanent file for each guardianship proceeding and shall file all papers relevant thereto, including petitions, notices, orders for hearings, etc. Any guardian duly appointed shall be entitled to receive, without charge, three certified copies of the Letters of Guardianship. Certified copies of filed papers shall be otherwise available at a fee per copy to be established by the Court.
5-1-192 Guardianship of Trust Property
The Court is hereby authorized to appoint a guardian of the trust estate of minors or incompetent using the procedures and safeguards outlined herein for the purpose of conveying or consenting to the conveyance of an interest in trust property owned by such minor or incompetent if it appears that the price to be paid is reasonable and adequate and that such sale is to the best interests of said minor or incompetent, the Court may enter an order authorizing such action. All actions taken by such guardian consenting to or conveying trust property shall be subject to the approval of the Superintendent.
5-1-193 Temporary Guardianship and Custody
The Court shall have the power to entertain and grant or deny petitions for temporary guardianship and custody when it determines it to be in the best interest of the person involved.
PARENTAGE
5-1-220 "Parent and Child Relationship" Defined
As used in this Chapter, "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.
5-1-221 Presumption of Paternity
A man is presumed to be the natural father of a child if:
(1) He and the child's natural mother are or have been married to each other and the child is born during the marriage, or within three hundred days after the marriage is terminated by death, annulment, declaration of invalidity, divorce, or dissolution, or after a decree of separation is entered by a court; or
(2) Before the child's birth, he and the child's natural mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and the child is born within three hundred days after the termination of cohabitation; or
(3) After the child's birth, he and the child's natural mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and
(4) While the child is under the age of majority, he receives the child into his home and openly holds out the child as his child; or
(5) He acknowledges his paternity of the child in a writing filed with the registrar of Vital Statistics, or the Colville Tribal Enrollment Office, who shall promptly inform the mother of the filing of the acknowledgment, and she does not dispute the acknowledgment within a reasonable time after being informed thereof, in a writing filed with the registrar of Vital Statistics. If another man is presumed under subsection (1),(2),(3) or (4) of this section to be the child's father, such acknowledgment shall give rise to the presumption of paternity only with the written consent of the otherwise presumed father or after such other presumption has been rebutted.
A presumption under this section may be rebutted in an appropriate action only by clear, cogent, and convincing evidence. If two or more presumptions arise which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls. The presumption is rebutted by a court decree establishing paternity of the child by another man.
5-1-222 Artificial Insemination
(1) If, under the supervision of a licensed physician and with the consent of her husband, a wife is inseminated artificially with semen donated by a man not her husband, the husband is treated in law as if he were the natural father of the child thereby conceived. The husband's consent must be in writing and signed by him and his wife. The physician shall certify their signatures and the date of the insemination, and file the husband's consent with the registrar of Vital Statistics, where it shall be keep confidential and in a sealed file.
(2) The donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor's wife is treated in law as if he were not the natural father of a child thereby conceived unless the donor and the woman agree in writing that said donor shall be the father. The agreement must be in writing and signed by the donor and the woman. The physician shall certify their signatures and the date of the insemination and file the agreement with the registrar of Vital Statistics, where it shall be kept confidential and in a sealed file.
(3) The failure of the licensed physician to perform any administrative act required by this section shall not affect the father and child relationship. All papers and records pertaining to the insemination, whether part of the permanent record of a court or of a file held by the supervising physician or elsewhere, are subject to inspection only in exceptional cases upon an order of the Court for good cause shown.
5-1-223 Determination of Father and Child Relationship - Who May Bring Action - When Action Maybe Brought
(1)
(b) A man presumed to be a child's father under CTC 5-1-221 may bring an action for the purpose of declaring the nonexistence of the father and child relationship only if the action is brought within a reasonable time after obtaining knowledge of relevant facts. After the presumption has been rebutted, paternity of the child by another man may be determined in the same action, if he has been made a party.
(2) In an action brought by the Tribes or State of Washington pursuant to this Chapter the Tribes may be represented by the prosecutor or general counsel, the State may be represented by either the prosecuting attorney for the county where the action is brought or by the State attorney general.
(3) Regardless of its terms, no agreement between an alleged or presumed father and the mother or child, shall bar an action under this section.
(4) If an action under this section is brought before the birth of the child, all proceedings may be stayed until after the birth, except service of process and discovery, including the taking of depositions to perpetuate testimony.
(5) Actions under this Chapter may be maintained as to any child, whether born before or after the enactment of this Chapter.
5-1-224 Jurisdiction
(1) The Tribal Court shall have jurisdiction of any action to determine paternity brought under this Chapter. The action may be joined with an action for divorce, dissolution, annulment, declaration of invalidity, separate maintenance, filiation, support, or any other civil action in which paternity is an issue including proceedings in Juvenile Court.
(2) Any person who has sexual intercourse within the lands of the Colville Indian Reservation with a person who is a member or is eligible to become a member of the Colville Confederated Tribes thereby submits to the jurisdiction of the courts of the Tribes as to an action brought under this Chapter with respect to a child who may have been conceived by that act of intercourse. In addition to any other method provided by statute, personal jurisdiction may be acquired by personal service of summons outside the Reservation or by service in accordance with the Tribal Code as now or hereafter amended.
5-1-225 Parties
The child shall be made a party to the action. If the child is a minor, the child shall be represented by the child's general guardian or a guardian ad litem appointed by the Court. The child's mother or father may not represent the child as guardian or otherwise. The natural mother, each man presumed to be the father and each man alleged to be the natural father, shall be made parties 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 an opportunity to be heard. The Court may align the parties.
5-1-226 Blood Tests
(1) The Court may, upon request of a party shall, require the child, mother, and any alleged father who has been made a party to submit to blood tests. If an alleged father objects to a proposed order requiring him to submit to paternity blood tests, the Court may require the party making the allegation of possible paternity to provide sworn testimony, by affidavit or otherwise, stating the facts upon which the allegation is based. The Court shall order blood tests if it appears that a reasonable possibility exists that the requisite sexual contact occurred. The tests shall be performed by an expert in paternity blood testing appointed by the Court. The expert's verified report identifying the blood characteristics observed is admissible in evidence in any hearing or trial in the parentage action, if (a) the alleged or presumed father has had the opportunity to gain information about the security, validity, and interpretation of the tests and the qualifications of any experts, and (b) the report is accompanied by an affidavit from the expert which describes the expert's qualifications as an expert and analyzes and interprets the results. Verified documentation of the chain of custody of the blood samples is admissible to establish the chain of custody. The Court may consider published sources as aids to interpretation of the test results.
(2) The Court, upon request by a party, shall order that additional blood tests be performed by the same or other experts qualified in paternity blood testing, if the party requesting additional tests advances the full costs of the additional testing within a reasonable time. The Court may order additional testing without requiring that the requesting party advance the costs only if another party agrees to the advance the costs or if the Court finds, after hearing, that (a) the requesting party is indigent, and (b) the laboratory performing the initial tests recommends additional testing or there is substantial evidence to support a finding as to paternity contrary to the initial blood test results. The Court may later order any other party to reimburse the party who advanced the costs of additional testing for all or a portion of the costs.
(3) In all cases, the Court shall determine the number and qualifications of the experts.
5-1-227 Evidence Relating to Paternity
Evidence relating to paternity may include:
(1) Evidence of sexual intercourse between the mother and alleged father at any possible time of conception;
(2) An expert's opinion concerning the statistical probability of the alleged father's paternity based upon the duration of the mother's pregnancy;
(3) Blood test results, weighted in accordance with evidence of the statistical probability of the alleged father's paternity;
(4) Medical or anthropological evidence relating to the alleged father's paternity of the child based on tests performed by experts. If a man has been identified as a possible father of the child, the Court may, and upon request of a party shall, require the child, the mother, and the man to submit to appropriate tests; and
(5) All other evidence relevant to the issue of paternity of the child.
5-1-228 Civil Action - Testimony - Evidence -Jury
(1) Any paternity action under this Chapter is a civil action governed by the rules of civil procedure. The mother of the child and the alleged father are competent to testify and may be compelled to testify.
(2) Upon refusal of any witness, including a party, to testify under oath or produce evidence of any other kind on the ground that said witness may be incriminated thereby, and if a party requests the Court to order that person to testify or provide the evidence, the Court shall then hold a hearing and shall so order, unless it finds that to do so would be clearly contrary to the public interest, and that person shall comply with the order.
If, but for this section, such a witness would have been privileged to withhold the answer given or the evidence produced by him, the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; but he shall not be prosecuted or subjected to criminal penalty or forfeiture for or on account of any transaction, matter, or fact concerning which he has been ordered to testify pursuant to this section. He may nevertheless be prosecuted for failing to comply with the order to answer, or for perjury or for offering false evidence to the Court.
(3) Testimony of a physician concerning the medical circumstances of the pregnancy and the condition and characteristics of the child upon birth is not privileged.
(4) In an action against an alleged father, evidence offered by him with respect to a man who is not subject to the jurisdiction of the Court concerning his sexual intercourse with the mother at or about the probable time of conception of the child is admissible in evidence only if he has undergone and made available to the Court blood tests the results of which do not exclude the possibility of his paternity of the child. A man who is identified and is subject to the jurisdiction of the Court shall be made a defendant in the action.
(5) The trial shall be by the Court without a jury.
5-1-229 Judgment or Order Determining Parent and Child Relationship - Support Judgment and Orders - Custody
(1) The judgment and order of the Court determining the existence or nonexistence of the parent and child relationship shall be determinative for all purposes.
(2) If the judgment and order of the Court is at variance with the child's birth certificate, the Court shall order that an amended birth certificate be issued.
(3) The judgment and order shall contain other appropriate provisions directed to the appropriate parties to the proceeding, concerning the duty of current and future support, the extent of any liability for past support furnished to the child if that issue is before the Court; the custody and guardianship of the child, visitation privileges with the child; the furnishing of bond or other security for the payment of the judgment; or any other matter in the best interest of the child. The judgment and order may direct the father to pay the reasonable expenses of the mother's pregnancy and confinement.
(4) Support judgment and orders shall be for periodic payments which may vary in amount. The Court may limit the father's liability for the past support to the child to the proportion of the expenses already incurred as the Court deems just: Provided however, that the Court shall not limit or affect in any manner the right of nonparties to seek reimbursement for support and other services previously furnished to the child.
(5) In determining the amount to be paid by a parent for support of the child and the period during which the duty of support is owed, the Court shall consider all relevant facts, including, but not limited to:
(6) In determining custody, a court, in accordance with the best interests of the child, shall consider all relevant facts including:
(7) In any dispute between the natural parents of a child and a person or persons who have (a) commenced adoption proceedings or who have been granted an order of adoption, and (b) pursuant to a court order, or placement by the Tribal Child Welfare Services or by a licensed agency, have had actual custody of the child for a period of one year or more before court action is commenced by the natural parent or parents, the Court shall consider the best welfare and interests of the child, including the child's need for situation stability, in determining the matter of custody, and the parent or person who is more fit shall have the superior right to custody.
5-1-230 Support Orders - Time Limit, Exception
A Court may not order payment for support provided or expenses incurred more than five years prior to the commencement of the action. Any period of time in which the responsible party has concealed himself or avoided the jurisdiction of the Court under this Chapter shall not be included within the five-year period
5-1-231 Temporary Support - Temporary Restraining Order - Preliminary Injunction - Support Debts, Notice
(1) If the Court has made a finding as to the paternity of a child, or if a party's acknowledgment of paternity has been filed with the Court, or a party alleges he is the father of the child, any party may move for temporary support for the child prior to the date of entry of the final order. The motion shall be accompanied by an affidavit setting forth the factual basis for the motion and the amounts requested.
(2) Any party may request the Court to issue a temporary restraining order or preliminary injunction, providing relief proper in the circumstances, and restraining or enjoining any party from:
(3) The Court may issue a temporary restraining order without requiring notice to the other party only if it finds on the basis of the moving affidavit or other evidence that irreparable injury could result if an order is not issued until the time for responding has elapsed.
(4) The Court may issue a temporary restraining order or preliminary injunction and an order for temporary support in such amounts and on such terms as are just and proper in the circumstances.
(5) A temporary order, temporary restraining order, or preliminary injunction:
5-1-232 Enforcement of Judgments or Orders
(1) If existence of the father and child relationship is declared, or paternity or a duty of support has been acknowledged or adjudicated under this Chapter or under other or prior law, the obligation of the father may be enforced in the same or other proceedings by the mother, the child, the public authority that has furnished or may furnish the reasonable expenses of pregnancy, confinement, education, support, or funeral, or by any other person, including a private agency, to the extent it has furnished or is furnishing these expenses.
(2) The Court may order support payments to be made to the Tribal Department of Social Services, to a parent, the clerk of the Court, or a person, corporation, or agency designated to administer them for the benefit of the child under the supervision of the Court.
(3) All remedies for the enforcement of judgments apply.
5-1-233 Modification of Judgment or Order - Continuing Jurisdiction
The Court has continuing jurisdiction to prospectively modify a judgment and order for future education and future support upon showing a substantial change of circumstances unless otherwise provided by the Business Council.
(Amended by Resolution 1996-128)
5-1-234 Action to Determine Mother and Child Relationship
Any interested party may bring an action to determine the existence or nonexistence of a mother and child relationship. Insofar as practicable, the provisions of this Chapter applicable to the father and child relationship apply.
Chapter 5-1, Adopted 3/5/87, Certified 3/9/87, Resolution 1987-645