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     Module 4      Examples



Probate

Probate law has its own California Rule of Court addressing ICWA. If you are already familiar with Rule 7.1015(a)–(c), scroll down and click “Next.”

No.

Title

Summary of Rule of Court

7.1015.

Indian Child Welfare Act in guardianship and certain conservatorship proceedings

 

 

(a) Definitions

 

In this rule, “act” means ICWA, and “petitioner” means petitioner for appointment of guardian or conservator.

 

(b) Applicability of this rule and rules 5.480 through 5.487

 

This rule and (unless context requires otherwise) rules 5.480–5.487 apply to

  • Guardianship in which the proposed guardian of Indian child is not child’s natural parent/Indian custodian;
  • Conservatorship of formerly married Indian minor in which the proposed conservator is not child’s natural parent or Indian custodian and seeks physical custody.

If court appoints temporary or general guardian or conservator, petitioner’s duties and responsibilities are transferred to that person. Petitioner must give all information about child to temporary/general guardian or conservator.

When rules 5.480–5.487 are applied to probate proceedings, those rules’ references to social worker, probation officer, county probation department, or county social welfare department are references to petitioner and to appointed temporary/general guardian or conservator.

(c) Notice

If at any time after filing of petition there is reason to know an Indian child is involved, petitioner and court must notify child's parents or legal guardian, Indian custodian, and tribe of pending proceeding and tribe's right to intervene, in addi­tion to fulfilling notice requirements under Probate Code.

Copies of completed ICWA-030, petition, and attachments must be served on child's parents, Indian custodian, and tribal chairperson/designated agent via prepaid certified or registered mail with return receipt requested.

Notice must be served on all tribes of which child may be a member or eligible for membership. If there are too many to fit on notice, others may be listed on ICWA-030(A).

Originals of all ICWA-030s served under the act and all return receipts and responses must be filed with court before hearing.

If, after a reasonable time—60 days or more—after service of notice no determinative response to ICWA-030 is received, court may determine that ICWA does not apply to the proceeding unless evidence of applicability is received later.

If tribe intervenes in the proceeding, service of ICWA-030 is no longer required and subsequent notices may be sent as required under Probate Code and other rules; but all other provisions of the act, this rule, and rules 5.480–5.487 continue to apply.

(Rule will continue)

 


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