NRS: CHAPTER 125E - CUSTODY OF INDIAN CHILDREN

[Rev. 6/29/2024 3:04:01 PM--2023]

CHAPTER 125E - CUSTODY OF INDIAN CHILDREN

GENERAL PROVISIONS

NRS 125E.010 Definitions.

NRS 125E.020 “Agency” defined.

NRS 125E.030 “Child custody proceeding” defined.

NRS 125E.040 “Division” defined.

NRS 125E.050 “Emergency proceeding” defined.

NRS 125E.060 “Extended family member” defined.

NRS 125E.070 “Indian” defined.

NRS 125E.080 “Indian child” defined.

NRS 125E.090 “Indian custodian” defined.

NRS 125E.100 “Indian tribe” or “tribe” defined.

NRS 125E.110 “Juvenile court” defined.

NRS 125E.120 “Member” or “membership” defined.

NRS 125E.130 “Parent” defined.

NRS 125E.140 “Party” defined.

NRS 125E.150 “Reservation” defined.

NRS 125E.160 “Tribal court” defined.

NRS 125E.170 Legislative findings and declaration.

NRS 125E.180 When person has custody of Indian child.

NRS 125E.190 Domicile of Indian child and other persons.

DETERMINING WHETHER CHILD IS INDIAN CHILD

NRS 125E.200 Determination of whether there is reason to know child is Indian child.

NRS 125E.210 Good faith effort required to determine whether there is reason to know child is Indian child; circumstances in which court or person has reason to know child is Indian child; written findings regarding satisfaction of inquiry requirements; requirements when evidence insufficient to determine whether child is Indian child; confidentiality.

NRS 125E.220 Notice in emergency and child custody proceedings; recipients of notice; language access services; hearing.

CHILD CUSTODY PROCEEDINGS

NRS 125E.230 Court to consider certain factors when making determination regarding best interests of Indian child.

NRS 125E.240 Determination of Indian child’s tribe; participation of more than one tribe in child custody proceeding.

NRS 125E.250 Determination of Indian child’s residence and domicile and whether Indian child is ward of tribal court.

NRS 125E.260 Appropriate agency to assist with enrolling eligible Indian child in tribe; right of Indian child’s parents to object; provision of notice.

NRS 125E.270 Court’s jurisdiction concurrent with Indian child’s tribe; exceptions.

NRS 125E.280 Transfer of child custody proceeding to tribal court.

NRS 125E.290 Duties of court after grant of transfer of child custody proceeding to tribal court.

NRS 125E.300 Active efforts.

NRS 125E.310 Representation of parties.

NRS 125E.320 Appointment of counsel; inspection and copying of records.

NRS 125E.330 Qualified expert witnesses; supplemental testimony from certain professionals.

NRS 125E.340 Examination of certain reports and documents.

NRS 125E.350 Placement of Indian child.

NRS 125E.360 Vacating order or judgment involving Indian child regarding jurisdiction, placement, guardianship or termination of parental rights.

MISCELLANEOUS PROVISIONS

NRS 125E.370 Tribal-state agreements.

_________

GENERAL PROVISIONS

NRS 125E.010 Definitions. As used in NRS 125E.010 to 125E.370, inclusive, the words and terms defined in NRS 125E.020 to 125E.160, inclusive, have the meanings ascribed to them in those sections.

(Added to NRS by 2023, 2233)

NRS 125E.020 “Agency” defined. “Agency” means an agency which provides child welfare services, as defined in NRS 432B.030.

(Added to NRS by 2023, 2233)

NRS 125E.030 “Child custody proceeding” defined. “Child custody proceeding” means a matter arising under chapter 432B of NRS in which the legal custody or physical custody of a child is an issue. The term does not include an emergency proceeding.

(Added to NRS by 2023, 2233)

NRS 125E.040 “Division” defined. “Division” means the Division of Child and Family Services of the Department of Health and Human Services.

(Added to NRS by 2023, 2233)

NRS 125E.050 “Emergency proceeding” defined. “Emergency proceeding” means any court action that involves the emergency removal or emergency placement of an Indian child, with or without a protective custody order.

(Added to NRS by 2023, 2233)

NRS 125E.060 “Extended family member” defined. “Extended family member” has the meaning given that term by the law or custom of an Indian child’s tribe or, if that meaning cannot be determined, means a person who has attained 18 years of age and who is the Indian child’s grandparent, aunt, uncle, brother, sister, sister-in-law, brother-in-law, niece, nephew, first cousin, second cousin, stepparent or another person determined by the Indian child’s tribe, clan or band member.

(Added to NRS by 2023, 2233)

NRS 125E.070 “Indian” defined. “Indian” means a person who is a member of an Indian tribe or who is an Alaska Native and a member of a regional corporation as defined in section 7 of the Alaska Native Claims Settlement Act, 43 U.S.C. § 1606.

(Added to NRS by 2023, 2233)

NRS 125E.080 “Indian child” defined. “Indian child” means any unmarried person who has not attained 18 years of age and is:

1. A member or citizen of an Indian tribe; or

2. Eligible for membership or citizenship in an Indian tribe and is the biological child of a member of an Indian tribe.

(Added to NRS by 2023, 2233)

NRS 125E.090 “Indian custodian” defined. “Indian custodian” means an Indian, other than the Indian child’s parent, who has custody, as described in subsection 1 of NRS 125E.180, of the Indian child, or to whom temporary physical care, custody and control has been transferred by the Indian child’s parent.

(Added to NRS by 2023, 2234)

NRS 125E.100 “Indian tribe” or “tribe” defined. “Indian tribe” or “tribe” means any Indian tribe, band, nation or other organized group or community of Indians federally recognized as eligible for the services provided to Indians by the United States Secretary of the Interior because of their status as Indians, including any Alaska Native village as defined in 43 U.S.C. § 1602(c).

(Added to NRS by 2023, 2234)

NRS 125E.110 “Juvenile court” defined. “Juvenile court” has the meaning ascribed to it in NRS 62A.180.

(Added to NRS by 2023, 2234)

NRS 125E.120 “Member” or “membership” defined. “Member” or “membership” means a determination by an Indian tribe that a person is a member or citizen in that Indian tribe.

(Added to NRS by 2023, 2234)

NRS 125E.130 “Parent” defined. “Parent” means:

1. A biological parent of an Indian child;

2. An Indian who has lawfully adopted an Indian child, including adoptions made under tribal law or custom; or

3. A person who has established a parent and child relationship with an Indian child pursuant to the laws of this State.

(Added to NRS by 2023, 2234)

NRS 125E.140 “Party” defined. “Party” means a party to a proceeding.

(Added to NRS by 2023, 2234)

NRS 125E.150 “Reservation” defined. “Reservation” means Indian country as defined in 18 U.S.C. § 1151 and any lands not covered under that section, the title to which is held by the United States in trust for the benefit of an Indian tribe or person or held by an Indian tribe or person subject to a restriction by the United States against alienation.

(Added to NRS by 2023, 2234)

NRS 125E.160 “Tribal court” defined. “Tribal court” means a court with jurisdiction over child custody proceedings involving an Indian child that is either a Court of Indian Offenses, a court established and operated under the code or custom of an Indian tribe or any other administrative body of a tribe that is vested with authority over child custody proceedings involving an Indian child.

(Added to NRS by 2023, 2234)

NRS 125E.170 Legislative findings and declaration.

1. The Legislature hereby finds that the United States Congress recognizes the special legal status of Indian tribes and their members. It is the policy of this State to protect the health and safety of Indian children and the stability and security of Indian tribes and families by promoting practices designed to prevent the removal of Indian children from their families and, if removal is necessary and lawful, to prioritize the placement of an Indian child with the Indian child’s extended family and tribal community.

2. This State recognizes the inherent jurisdiction of Indian tribes to make decisions regarding the custody of Indian children and also recognizes the importance of ensuring that Indian children and Indian families receive appropriate services to obviate the need to remove an Indian child from the Indian child’s home and, if removal is necessary and lawful, to effect the child’s safe return home.

3. NRS 125E.010 to 125E.370, inclusive, create additional safeguards for Indian children to address disproportionate rates of removal, to improve the treatment of and services provided to Indian children and Indian families in the child welfare system and to ensure that Indian children who must be removed are placed with Indian families, communities and cultures.

(Added to NRS by 2023, 2233)

NRS 125E.180 When person has custody of Indian child.

1. A person has custody of an Indian child under NRS 125E.010 to 125E.370, inclusive, if the person has physical custody or legal custody of the Indian child under any applicable tribal law, tribal custom or state law.

2. An Indian child’s parent has continued custody of the Indian child if the parent currently has, or previously had, custody of the Indian child.

(Added to NRS by 2023, 2234)

NRS 125E.190 Domicile of Indian child and other persons. For purposes of NRS 125E.010 to 125E.370, inclusive:

1. A person’s domicile is the place the person regards as home, where the person intends to remain or to which, if absent, the person intends to return.

2. An Indian child’s domicile is, in order of priority, the domicile of:

(a) The Indian child’s parents or, if the Indian child’s parents do not have the same domicile, the Indian child’s parent who has physical custody of the Indian child;

(b) The Indian child’s Indian custodian; or

(Added to NRS by 2023, 2235)

DETERMINING WHETHER CHILD IS INDIAN CHILD

NRS 125E.200 Determination of whether there is reason to know child is Indian child. Notwithstanding any other provision of law and in addition to any other requirements, in any child custody proceeding:

1. Each petitioner and every other person otherwise required by the court or by any applicable law shall:

(a) Determine whether there is reason to know that the child is an Indian child; and

(b) Demonstrate to the court that he or she made efforts to determine whether a child is an Indian child.

2. The court shall:

(a) Make a finding regarding whether there is reason to know that the child is an Indian child, unless the court has previously found that the child is an Indian child; and

(b) Not enter a custody order in the matter until all applicable inquiry and notice requirements set forth in NRS 125E.010 to 125E.370, inclusive, have been met.

(Added to NRS by 2023, 2238)

1. Except if the person already knows that a child is an Indian child, whenever a person is required in a child custody proceeding to determine whether there is reason to know that the child is an Indian child, the person shall make a good faith effort to determine whether the child is an Indian child, including, without limitation, by consulting with:

(a) The child;

(b) The child’s parent or parents;

(d) Extended family members of the child;

(e) Any other person who may reasonably be expected to have information regarding the child’s membership or eligibility for membership in a Indian tribe; and

(f) Any Indian tribe of which the child may be a member or of which the child may be eligible for membership.

2. A court or person has reason to know that a child in a child custody proceeding is an Indian child if:

(a) The person knows that the child is an Indian child;

(b) The court has found that the child is an Indian child or that there is reason to know that the child is an Indian child;

(c) Any person present in the proceeding, officer of the court involved in the proceeding, Indian tribe, Indian organization or agency informs the court or the person that the child is an Indian child or that information has been discovered indicating that the child is an Indian child;

(d) The child indicates to the court or the person that the child is an Indian child;

(e) The court or the person is informed that the domicile or residence of the child, the child’s parent or the child’s Indian custodian is on a reservation or in an Alaska Native village;

(f) The court or the person is informed that the child is or has been a ward of a tribal court;

(g) The court or the person is informed that the child or the child’s parent possesses an identification card or other record indicating membership in an Indian tribe;

(h) Testimony or documents presented to the court indicate in any way that the child may be an Indian child; or

(i) Any other indicia provided to the court or the person, or within the knowledge of the court or the person, indicates that the child is an Indian child.

3. Except as otherwise provided in NRS 127.1867, whenever a person is required to demonstrate to the court in a child custody proceeding that the person made efforts to determine whether a child is an Indian child, the court shall make written findings regarding whether the person satisfied the inquiry requirements under subsection 1 and whether the child is an Indian child or whether there is reason to know that the child is an Indian child. At the commencement of any hearing in an emergency proceeding or a child custody proceeding, unless the court previously found that the child is an Indian child, the court shall ask, on the record, each person present on the matter whether the person has reason to know that the child is an Indian child and shall make a finding regarding whether there is reason to know that the child is an Indian child.

4. If the court finds under subsection 3 that there is:

(a) Reason to know that the child is an Indian child but the court does not have sufficient evidence to find that the child is an Indian child, the court shall order that the inquiry as to whether the child is an Indian child continue until the court finds that the child is not an Indian child.

(b) Not reason to know that the child is an Indian child, the court shall order each party to immediately inform the court if the party receives information providing reason to know that the child is an Indian child.

5. If the court finds under subsection 3 that there is reason to know that the child is an Indian child but the court does not have sufficient evidence to make a finding that the child is or is not an Indian child, the court shall require the appropriate agency or other party to submit a report, declaration or testimony on the record that the agency or other party used due diligence to identify and work with all of the tribes of which the child may be a member or in which the child may be eligible for membership to verify whether the child is a member or is eligible for membership.

6. A person making an inquiry under this section shall request that any tribe receiving information under this section keep documents and information regarding the inquiry confidential.

(Added to NRS by 2023, 2238)

NRS 125E.220 Notice in emergency and child custody proceedings; recipients of notice; language access services; hearing.

1. In an emergency proceeding, the person taking a child into protective custody must make a good faith effort to determine whether there is reason to know that the child is an Indian child and, if there is reason to know that the child is an Indian child and the nature of the emergency allows, the appropriate agency shall notify by telephone, electronic mail, facsimile or other means of immediate communication any tribe of which the child is or may be a member. Notification under this subsection must include the basis for the child’s removal, the time, date and place of the initial hearing and a statement that the tribe has the right to participate in the proceeding as a party or in an advisory capacity.

2. Except as provided in subsection 1, if there is reason to know that a child in a child custody proceeding who is alleged to be within the court’s jurisdiction is an Indian child and notice is required, the party providing notice shall:

(a) Promptly send notice of the proceeding as described in subsection 3; and

(b) File a copy of each notice sent pursuant to this section with the court, together with any return receipts or other proof of service.

3. Notice under subsection 2 must be:

(a) Sent to:

(1) Each tribe of which the child may be a member or of which the Indian child may be eligible for membership; or

(2) The appropriate Regional Director of the United States Bureau of Indian Affairs listed in 25 C.F.R. § 23.11(b), if the identity or location of the child’s tribe cannot be ascertained.

(b) Sent by registered or certified mail, return receipt requested.

(1) The child’s name, date of birth and, if known, place of birth;

(2) To the extent known:

(I) All names, including maiden, married and former names or aliases, of the child’s parents, the places of birth of the child’s parents’ and tribal enrollment numbers; and

(II) The names, dates of birth, places of birth and tribal enrollment information of other direct lineal ancestors of the child;

(3) The name of each Indian tribe of which the child is a member or in which the Indian child may be eligible for membership;

(4) If notice is required to be sent to the appropriate Regional Director of the United States Bureau of Indian Affairs under subparagraph (2) of paragraph (a), to the extent known, information regarding the child’s direct lineal ancestors, an ancestral chart for each biological parent, and the child’s tribal affiliations and blood quantum;

(5) In a child custody proceeding, a copy of the petition or motion initiating the proceeding and, if a hearing has been scheduled, information on the date, time and location of the hearing;

(6) The name of the petitioner and the name and address of the attorney of the petitioner;

(7) A statement that the child’s parent or Indian custodian has the right to participate in the proceeding as a party to the proceeding;

(8) A statement that the child’s tribe has the right to participate in the proceeding as a party or in an advisory capacity;

(9) A statement that if the court determines that the child’s parent or Indian custodian is unable to afford counsel, the parent or Indian custodian has the right to court-appointed counsel;

(10) A statement that the child’s parent, Indian custodian or tribe has the right, upon request, to up to 20 additional days to prepare for the proceeding;

(11) A statement that the child’s parent, Indian custodian or tribe has the right to petition the court to transfer the child custody proceeding to the tribal court;

(12) A statement describing the potential legal consequences of the proceeding on the future parental and custodial rights of the parent or Indian custodian;

(13) The mailing addresses and telephone numbers of the court and contact information for all parties to the proceeding; and

(14) A statement that the information contained in the notice is confidential and that the notice should not be shared with any person not needing the information to exercise rights under NRS 125E.010 to 125E.370, inclusive.

4. If there is a reason to know that the Indian child’s parent or Indian custodian has limited English proficiency, the court must provide language access services as required by Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d et seq., and other applicable federal and state laws. If the court is unable to secure translation or interpretation support, the court shall contact or direct a party to contact the Indian child’s tribe or the local office of the United States Bureau of Indian Affairs for assistance identifying a qualified translator or interpreter.

5. If a child is known to be an Indian child, a hearing may not be held until at least 10 days after the receipt of the notice by the Indian child’s tribe or, if applicable, the United States Bureau of Indian Affairs. Upon request, the court shall grant the Indian child’s parent, Indian custodian or tribe up to 20 additional days from the date upon which notice was received by the tribe to prepare for participation in the hearing. Nothing in this subsection prevents a court at an emergency proceeding before the expiration of the waiting period described in this subsection from reviewing the removal of an Indian child from the Indian child’s parent or Indian custodian to determine whether the removal or placement is no longer necessary to prevent imminent physical damage or harm to the Indian child.

(Added to NRS by 2023, 2240)

CHILD CUSTODY PROCEEDINGS

NRS 125E.230 Court to consider certain factors when making determination regarding best interests of Indian child. In a child custody proceeding involving an Indian child, when making a determination regarding the best interests of the child in accordance with NRS 125E.010 to 125E.370, inclusive, chapter 432B of NRS, the Indian Child Welfare Act, 25 U.S.C. §§ 1901 et seq., or any applicable regulations or rules regarding NRS 125E.010 to 125E.370, inclusive, chapter 432B of NRS or the Indian Child Welfare Act, the court shall, in consultation with the Indian child’s tribe, consider the following:

1. The protection of the safety, well-being, development and stability of the Indian child;

2. The prevention of unnecessary out-of-home placement of the Indian child;

3. The prioritization of placement of the Indian child in accordance with the placement preferences under NRS 125E.350;

4. The value to the Indian child of establishing, developing or maintaining a political, cultural, social and spiritual relationship with the Indian child’s tribe and tribal community; and

5. The importance to the Indian child of the Indian tribe’s ability to maintain the tribe’s existence and integrity in promotion of the stability and security of Indian children and families.

(Added to NRS by 2023, 2234)

NRS 125E.240 Determination of Indian child’s tribe; participation of more than one tribe in child custody proceeding.

1. In a child custody proceeding in which an Indian child is alleged to be within the jurisdiction of the court, the Indian child’s tribe is:

(a) If the Indian child is a member of or is eligible for membership in only one tribe, the tribe of which the Indian child is a member or eligible for membership.

(b) If the Indian child is a member of one tribe but is eligible for membership in one or more other tribes, the tribe of which the Indian child is a member.

(c) If the Indian child is a member of more than one tribe or if the Indian child is not a member of any tribe but is eligible for membership with more than one tribe:

(1) The tribe designated by agreement between the tribes of which the Indian child is a member or in which the Indian child is eligible for membership; or

(2) If the tribes are unable to agree on the designation of the Indian child’s tribe, the tribe designated by the court.

2. When designating an Indian child’s tribe under subparagraph (2) of paragraph (c) of subsection 1, the court shall, after a hearing, designate the tribe with which the Indian child has the more significant contacts, taking into consideration the following:

(a) The preference of the Indian child’s parent;

(b) The duration of the Indian child’s current or prior domicile or residence on or near the reservation of each tribe;

(d) The interests asserted by each tribe;

(e) Whether a tribe has previously adjudicated a case involving the Indian child; and

(f) If the court determines that the Indian child is of sufficient age and capacity to meaningfully self-identify, the self-identification of the Indian child.

3. If an Indian child is a member of or is eligible for membership in more than one tribe, the court may, in its discretion, permit a tribe, in addition to the Indian child’s tribe, to participate in a child custody proceeding involving the Indian child in an advisory capacity or as a party.

(Added to NRS by 2023, 2235)

NRS 125E.250 Determination of Indian child’s residence and domicile and whether Indian child is ward of tribal court. In any child custody proceeding involving an Indian child that is based on allegations that the Indian child is within the jurisdiction of the court, the court must determine the residence and domicile of the Indian child and whether the Indian child is a ward of tribal court. The court shall communicate with any tribal courts to the extent necessary to make a determination under this section.

(Added to NRS by 2023, 2236)

NRS 125E.260 Appropriate agency to assist with enrolling eligible Indian child in tribe; right of Indian child’s parents to object; provision of notice.

1. Unless an Indian child’s parent objects, the appropriate agency shall provide assistance with enrolling an Indian child within the jurisdiction of the court in a tribe with which the child is eligible for enrollment.

2. In any child custody proceeding involving an Indian child, if the appropriate agency reasonably believes that the Indian child is eligible for enrollment in a tribe, the agency shall notify the Indian child’s parents of their right to object to the agency’s assistance under subsection 1. The provision of notice pursuant to this subsection is deemed to be satisfied by sending the notice to the last known mailing address of each of the Indian child’s parents.

(Added to NRS by 2023, 2235)

NRS 125E.270 Court’s jurisdiction concurrent with Indian child’s tribe; exceptions.

1. Except as otherwise provided in this section, the court’s jurisdiction in a child custody proceeding involving an Indian child is concurrent with the Indian child’s tribe.

2. The tribe has exclusive jurisdiction in a child custody proceeding involving an Indian child if:

(a) The Indian child is a ward of a tribal court of the tribe; or

(b) The Indian child resides or is domiciled within the reservation of the tribe.

3. Communications between the court and a tribal court regarding calendars, court records and similar matters may occur without informing the parties or creating a record of the communications.

4. Notwithstanding the provisions of this section, the juvenile court has temporary exclusive jurisdiction over an Indian child who is placed in protective custody pursuant to chapter 432B of NRS.

5. As used in this section, “record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

(Added to NRS by 2023, 2236)

NRS 125E.280 Transfer of child custody proceeding to tribal court.

1. Except as otherwise provided in subsection 4, the court shall transfer a child custody proceeding involving an Indian child if, at any time during the proceeding, the Indian child’s parent, Indian custodian or tribe petitions the court to transfer the proceeding to the tribal court.

2. Upon receipt of a transfer motion, the court shall contact the Indian child’s tribe and request a timely response regarding whether the tribe intends to decline the transfer.

3. If a party objects to the transfer motion for good cause, the court shall fix the time for hearing on objections to the motion. At the hearing, the objecting party has the burden of proof of establishing by clear and convincing evidence that good cause exists to deny the transfer. If the Indian child’s tribe contests the assertion that good cause exists to deny the transfer, the court shall give the tribe’s argument substantial weight. When making a determination whether good cause exists to deny the transfer motion, the court may not consider:

(a) Whether the proceeding is at an advanced stage;

(b) Whether there has been a prior proceeding involving the Indian child in which a transfer motion was not filed;

(d) The cultural connections of the Indian child with the tribe or the tribe’s reservation; or

(e) The socioeconomic conditions of the Indian child’s tribe or any negative perception of tribal or United States Bureau of Indian Affairs’ social services or judicial systems.

4. The court shall deny the transfer motion if:

(a) The tribe declines the transfer orally on the record or in writing;

(b) The Indian child’s parent objects to the transfer; or

5. Notwithstanding paragraph (b) of subsection 4, the objection of the Indian child’s parent does not preclude the transfer if:

(a) The objecting parent dies or the objecting parent’s parental rights are terminated and have not been restored; and

(b) The Indian child’s remaining parent, Indian custodian or tribe files a new transfer motion subsequent to the death of the objecting parent or the termination of the parental rights of the objecting parent.

6. If the court denies a transfer under this section, the court shall document the basis for the denial in a written order.

(Added to NRS by 2023, 2237)

NRS 125E.290 Duties of court after grant of transfer of child custody proceeding to tribal court. Upon granting a transfer motion under NRS 125E.280, the court shall expeditiously:

1. Notify the tribal court of the pending dismissal of the child custody proceeding;

2. Transfer all information regarding the proceeding, including, without limitation, pleadings and court records, to the tribal court;

3. Direct the appropriate agency to:

(a) Coordinate with the tribal court and the Indian child’s tribe to ensure that the transfer of the proceeding and the transfer of custody of the Indian child is accomplished with minimal disruption of services to the Indian child and the Indian child’s family; and

(b) Provide the Indian child’s tribe with documentation related to the Indian child’s eligibility for state and federal assistance and information related to the Indian child’s social history, treatment diagnosis and services and other relevant case and service related data; and

4. Dismiss the proceeding upon confirmation from the tribal court that the tribal court received the transferred information.

(Added to NRS by 2023, 2238)

NRS 125E.300 Active efforts.

1. If a child in a child custody proceeding is an Indian child and active efforts are required, the court must determine whether active efforts have been made to prevent the breakup of the family or to reunite the family.

2. Active efforts require a higher standard of conduct than reasonable efforts.

3. Active efforts must:

(a) Be documented in detail in writing and on the record;

(b) Include assisting the Indian child’s parent or parents or Indian custodian through the steps of a case plan;

(d) Be conducted in partnership with the Indian child and the Indian child’s parents, extended family members, Indian custodians and tribe; and

(e) Be tailored to the facts and circumstances of the case.

4. As used in this section, “active efforts” means efforts that are affirmative, active, thorough, timely and intended to maintain or reunite an Indian child with the Indian child’s family.

(Added to NRS by 2023, 2242)

NRS 125E.310 Representation of parties.

1. Notwithstanding the provisions of NRS 7.285, a tribe that is a party to a child custody proceeding involving an Indian child may be represented by any person, regardless of whether the person is licensed to practice law.

2. An attorney who is not barred from practicing law in this State may appear in any proceeding involving an Indian child without associating with local counsel if the attorney establishes to the satisfaction of the State Bar of Nevada that:

(a) The attorney will appear in a court in this State for the limited purpose of participating in a proceeding under chapter 432B of NRS subject to the provisions of NRS 125E.010 to 125E.370, inclusive;

(b) The attorney represents an Indian child’s parent, Indian custodian or tribe; and

3. An Indian custodian or tribe may notify the court, orally on the record or in writing, that the Indian custodian or tribe withdraws as a party to the proceeding.

(Added to NRS by 2023, 2242)

NRS 125E.320 Appointment of counsel; inspection and copying of records.

1. If a child in a child custody proceeding is an Indian child:

(a) The court shall appoint counsel to represent the Indian child.

(b) If the Indian child’s parent or Indian custodian requests counsel to represent the parent or Indian custodian but is without sufficient financial means to employ suitable counsel possessing skills and experience commensurate with the nature of the petition and the complexity of the case, the court shall appoint suitable counsel to represent the Indian child’s parent or Indian custodian if the parent or Indian custodian is determined to be financially eligible for the appointment of such counsel.

2. Except as otherwise provided in this subsection, upon presentation of the order of appointment under this section by the attorney for the Indian child, any agency, hospital, school organization, division or department of this State, doctor, nurse or other health care provider, psychologist, psychiatrist, law enforcement agency or mental health clinic shall permit the attorney for the Indian child to inspect and copy any records of the Indian child involved in the case, without the consent of the Indian child or the Indian child’s parent or Indian custodian. This subsection does not apply to records of a law enforcement agency relating to an ongoing investigation before bringing charges.

(Added to NRS by 2023, 2243)

NRS 125E.330 Qualified expert witnesses; supplemental testimony from certain professionals.

1. In any child custody proceeding involving an Indian child that requires the testimony of a qualified expert witness, the petitioner shall contact the Indian child’s tribe and request that the tribe identify one or more persons meeting the criteria described in subsection 3 or 4. The petitioner may also request the assistance of the United States Bureau of Indian Affairs in locating persons meeting the criteria described in subsection 3 or 4.

2. At a hearing in a child custody proceeding, if the court has found that a child is an Indian child, at least one qualified expert witness must testify regarding whether the continued custody of the Indian child by the child’s parent or custody by the child’s Indian custodian is likely to result in serious emotional or physical damage to the Indian child.

3. A person is a qualified expert witness under this section if the Indian child’s tribe has designated the person as being qualified to testify to the prevailing social and cultural standards of the tribe.

4. If the Indian child’s tribe has not identified a qualified expert witness, the following persons, in order of priority, may testify as a qualified expert witness:

(a) A member of the Indian child’s tribe or another person who is recognized by the tribe as knowledgeable about tribal customs regarding family organization or child rearing practices;

(b) A person having substantial experience in the delivery of child and family services to Indians and extensive knowledge of prevailing social and cultural standards and child rearing practices within the Indian child’s tribe; or

(c) Any person having substantial experience in the delivery of child and family services to Indians and knowledge of prevailing social and cultural standards and child rearing practices in Indian tribes with cultural similarities to the child’s tribe.

5. In addition to testimony from a qualified expert witness, the court may hear supplemental testimony regarding information described in subsection 2 from a professional having substantial education and experience in the area of the professional’s specialty.

6. No petitioning party, employees of the petitioning party or an employee of an agency may serve as a qualified expert witness or a professional under this section.

(Added to NRS by 2023, 2241)

NRS 125E.340 Examination of certain reports and documents.

1. In any child custody proceeding, if the child is an Indian child, each party has the right to timely examine all reports or other documents held by an agency that are not otherwise subject to a discovery exception or precluded under state or federal law.

2. The preservation of confidentiality under this section does not relieve the court or any petitioners in an adoption proceeding from the duty to comply with the placement preferences under NRS 125E.350 if the child is an Indian child.

(Added to NRS by 2023, 2243)

NRS 125E.350 Placement of Indian child.

1. Except as otherwise provided in subsection 3, if the parental rights of an Indian child’s parents have not been terminated and the Indian child is in need of placement or continuation in substitute care, the child must be placed in the least restrictive setting that:

(a) Most closely approximates a family, taking into consideration sibling attachment;

(b) Allows the Indian child’s special needs, if any, to be met;

(d) Is in accordance with the order of preference established by the Indian child’s tribe or, if the Indian child’s tribe has not established placement preferences, is in accordance with the following order of preference:

(1) A member of the Indian child’s extended family;

(2) A foster home licensed, approved or specified by the Indian child’s tribe;

(3) A foster home licensed or approved by a licensing authority in this State and in which one or more of the licensed or approved foster parents is an Indian; or

(4) An institution for children that has a program suitable to meet the Indian child’s needs and is approved by an Indian tribe or operated by an Indian organization.

2. Except as otherwise provided in subsection 3, if the parental rights of the Indian child’s parents have been terminated and the Indian child is in need of an adoptive placement, the Indian child shall be placed:

(a) In accordance with the order of preference established by the Indian child’s tribe; or

(b) If the Indian child’s tribe has not established placement preferences, according to the following order of preference:

(1) With a member of the Indian child’s extended family;

(2) With other members of the Indian child’s tribe; or

(3) With other Indian families.

3. If an Indian child is placed outside of the placement preferences set forth in subsection 1 or 2, the party placing the child shall file a motion requesting that the court make a finding that good cause exists for placement outside of such placement preferences. If the court determines that the moving party has established, by clear and convincing evidence, that there is good cause to depart from the placement preferences under this section, the court may authorize placement in an alternative placement. The court’s determination under this subsection:

(a) Must be in writing and be based on:

(1) The preferences of the Indian child;

(2) The presence of a sibling attachment that cannot be maintained through placement consistent with the placement preferences established by subsection 1 or 2;

(3) Any extraordinary physical, mental or emotional needs of the Indian child that require specialized treatment services if, despite active efforts, those services are unavailable in the community where families who meet the placement preferences under subsection 1 or 2 reside; or

(4) Whether, despite a diligent search, a placement meeting the placement preferences under this section is unavailable, as determined by the prevailing social and cultural standards of the Indian community in which the Indian child’s parent or extended family resides or with which the Indian child’s parent or extended family members maintain social and cultural ties.

(b) Must, in applying the placement preferences under this subsection, give weight to a parent’s request for anonymity if the placement is an adoptive placement to which the parent has consented.

(c) May be informed by but not determined by the placement request of a parent of the Indian child, after the parent has reviewed the placement options, if any, that comply with the placement preferences under this section.

(d) May not be based on:

(1) The socioeconomic conditions of the Indian child’s tribe;

(2) Any perception of the tribal or United States Bureau of Indian Affairs social services or judicial systems;

(3) The distance between a placement meeting the placement preferences under this section that is located on or near a reservation and the Indian child’s parent; or

(4) The ordinary bonding or attachment between the Indian child and a nonpreferred placement arising from time spent in the nonpreferred placement.

(Added to NRS by 2023, 2243)

NRS 125E.360 Vacating order or judgment involving Indian child regarding jurisdiction, placement, guardianship or termination of parental rights.

1. A petition to vacate an order or a judgment involving an Indian child regarding jurisdiction, placement, guardianship or the termination of parental rights may be filed in a pending child custody proceeding involving the Indian child or, if none, in any court of competent jurisdiction by:

(a) The Indian child who was alleged to be within the jurisdiction of the court;

(b) The Indian child’s parent or Indian custodian from whose custody such child was removed or whose parental rights were terminated; or

2. The court shall vacate an order or judgment involving an Indian child regarding jurisdiction, placement, guardianship or the termination of parental rights if the court determines that any provision of subsection 2 or 5 of NRS 125E.220, paragraph (a) or (b) of subsection 3 of NRS 125E.220, NRS 125E.270 or 125E.280, subsection 1 of NRS 125E.320 or NRS 125E.340 or, if required, NRS 125E.300, subsection 2 of NRS 125E.330 or NRS 125E.350 has been violated and the court determines it is appropriate to vacate the order or judgment.

3. If the vacated order or judgment resulted in the removal or placement of the Indian child, the court shall order the child immediately returned to the Indian child’s parent or Indian custodian and the court’s order must include a transition plan for the physical custody of the child, which may include protective supervision.

4. If the vacated order or judgment terminated parental rights, the court shall order the previously terminated parental rights to be restored.

5. If the State or any other party affirmatively asks the court to reconsider the issues under the vacated order or judgment, the court’s findings or determinations must be readjudicated.

6. As used in this section, “termination of parental rights” includes, without limitation, the involuntary termination of parental rights under chapter 128 or 432B of NRS.

(Added to NRS by 2023, 2245)

MISCELLANEOUS PROVISIONS

NRS 125E.370 Tribal-state agreements.

1. Agencies shall make a good faith effort to enter into a tribal-state agreement with any Indian tribe within the borders of this State. Agencies may also enter into a tribal-state agreement with any Indian tribe outside of this State having significant numbers of member children or membership-eligible children residing in this State.

2. The purposes of a tribal-state agreement are to promote the continued existence and integrity of the Indian tribe as a political entity and to protect the vital interests of Indian children in securing and maintaining political, cultural and social relationships with their tribe.

3. A tribal-state agreement may include agreements regarding default jurisdiction over cases in which the state courts and tribal courts have concurrent jurisdiction, the transfer of cases between state courts and tribal courts, the assessment, removal, placement, custody and adoption of Indian children and any other child welfare services provided to Indian children.

4. A tribal-state agreement must:

(a) Provide for the cooperative delivery of child welfare services to Indian children in this State, including, without limitation, the utilization, to the extent available, of services provided by the tribe or an organization whose mission is to serve the American Indian or Alaska Native population to implement the terms of the tribal-state agreement; and

(b) If services provided by the tribe or an organization whose mission is to serve the American Indian or Alaska Native population are unavailable, provide for an agency’s use of community services and resources developed specifically for Indian families that have the demonstrated experience and capacity to provide culturally relevant and effective services to Indian children.

(Added to NRS by 2023, 2236)