Motion to transfer to tribal court
- good cause to deny transfer
(1)Except as provided in subsection (5) of this section, the court shall transfer a child custody proceeding under ORS 109.266 (Definitions for ORS 109.266 to 109.410) to 109.410 (Certificate of adoption) or ORS chapter 419B 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)Transfer of the proceeding is inappropriate if:
(a)The Indian child’s tribe has declined the transfer;
(b)One or both of the Indian child’s parents object to the transfer; or
(c)Good cause exists to deny the transfer.
(4)Intentionally left blank —Ed.
(a)If a party objects to the transfer motion for good cause, the court shall fix the time for hearing on objections to the motion.
(b)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.
(c)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.
(d)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;
(C)Whether the transfer could affect the placement of the Indian child;
(D)The Indian child’s cultural connections with the tribe or the tribe’s reservation;
(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; or
(F)Whether the transfer serves the best interests of the Indian child.
(5)Intentionally left blank —Ed.
(a)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
(C)The court finds by clear and convincing evidence, after hearing, that good cause exists to deny the transfer.
(b)Notwithstanding paragraph (a)(B) of this subsection, 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 reinstated under ORS 419B.532 (Reinstatement of parental rights); 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. [2020 s.s.1 c.14 §13; 2021 c.398 §4]
Section 419B.630 — Motion to transfer to tribal court; objection; good cause to deny transfer,