as: 951 P.2d 1206)|
Court of Alaska.
father and stepfather of a minor child are Alaska Natives
who each seek custody of the child following her mother's
The superior court awarded joint legal custody to the contestants,
primary physical custody to the stepfather, and visitation to the
While the father's appeal from that judgment was pending, the
superior court modified the judgment and awarded physical and legal
custody to the father.
Because the child's tribe was not given an opportunity to
intervene and the initial judgment was not supported by fact
findings satisfying the test that controls a custody dispute between
a parent and non-parent, we remand for further findings and
for proceedings consistent with the Indian Child Welfare Act.
was born in 1988.
E.J. was her mother and J.W. was her father.
S.R. had lived since infancy with her mother and her
stepfather, R.J. E.J. and R.J. married in 1989.
J.W. saw S.R. on her first birthday and did not
see her again until August 1995.
In 1995 R.J., the stepfather, filed for divorce from E.J.,FN1
and sought legal and primary physical custody of S.R. J.W.
E.J., S.R.'s mother, had custody of S.R. until E.J. died
in March 1996.
The custody contest between the father, J.W., and the stepfather,
R.J., then became the only remaining dispute.
and R.J., the stepfather, also had three other children whose
custody is not in dispute here.
E.J.'s death, the superior court gave the stepfather temporary custody,
with visitation to the father.
The superior court conducted a custody trial and in August
1996 entered judgment awarding shared legal custody to the father
and stepfather, primary physical custody to the stepfather, and visitation
to the father.
The father appealed from that judgment, arguing that the court
erred in failing to apply the Indian Child Welfare Act
and that there was insufficient evidence under the state law
standard to award custody to a non-parent.
The father did not seek a stay when he filed
events occurred after entry of the 1996 judgment.
The state took custody of S.R. from September 4, 1996,
to December 4, 1996, following a report that the stepfather
had previously abused S.R. sexually.
The state placed S.R. with her aunt in Fairbanks during
this three-month period.
S.R. was returned to her stepfather in Birch Creek on
December 4, and remained there until December 18, when she
traveled to Fairbanks for Christmas visitation with her father.
January 9, 1997, the father, J.W., moved in the superior
court for a stay pending appeal, alleging that the stepfather
had sexually abused the child, and that she was at
risk if she returned to his custody.
J.W. also moved for expedited consideration.
The court granted expedited consideration the next day, without giving
the stepfather an opportunity to file an opposition.
The superior court gave the stepfather until January 15 to
respond to the underlying motion, but did not specify the
child's custody in the meantime.
When the father's lawyer called the judge's secretary and inquired
whether S.R. was required to return to the stepfather's custody
pending resolution of the motion, the court ordered that the
child remain in Fairbanks while the matter was pending.
a January 13, 1997, status hearing, the superior court orally
denied the father's stay motion, but set a hearing for
January 16 to determine “whether
or not there are circumstances that now exist that place
[S.R.] at risk in going back to Birch Creek.”
January 16 the father moved to modify custody.
The superior court heard testimony on January 16 and 17
from the doctor who had examined S.R. in August 1996,
the Alaska State Trooper who had interviewed her, and the
The superior court also accepted the report of the guardian
On January 17 the superior court issued an order modifying
the August 1996 judgment.
The order found that “[c]onsiderable
confusion exists as to whether [S.R.] was ever sexually molested
and, if so, when and by whom.”
The order also stated that “[t]he
evidence before this court at this time does not suggest
that [S.R.] is currently at risk in the [stepfather's] household.”
Nonetheless, the order found that a change of circumstances had
occurred since the 1996 trial, and permanently modified the judgment
by giving primary physical custody to S.R.'s father, with visitation
to S.R.'s stepfather.
months later, over the stepfather's objection, the court ordered an
interview with S.R. The superior court sua
again permanently modified the custody order on May 15, 1997,
giving sole legal custody to the father and decreasing the
The stepfather, R.J., appeals both 1997 modification orders on the
theory that procedural errors denied him due process of law.
here consider the father's appeal from the 1996 judgment and
the stepfather's appeal from the 1997 modifications.
will disturb the trial court's resolution of child custody issues
the record shows an abuse of discretion or if controlling
findings of fact are clearly erroneous.”
779 P.2d 1204, 1207 (Alaska 1989) (citing Faro
579 P.2d 1377, 1379 (Alaska 1978)).
Whether factual findings are sufficient to support an award of
custody to a non-parent is a legal issue to which
we apply our independent judgment.
919 P.2d 754, 755 n. 1 (Alaska 1996).
applicability of the Indian Child Welfare Act of 1978 to
this proceeding is a question of law subject to our
781 P.2d 973, 975 (Alaska 1989).
We will “adopt
the rule of law that is most persuasive in light
of precedent, reason and policy.”
591 P.2d 1281, 1284 n. 6 (Alaska 1979).
Post-Judgment Modification Orders
stepfather, R.J., argues that the superior court erred in 1997
entering the order for expedited consideration without allowing him a
reasonable time to oppose the motion;
amending the order for expedited consideration based on an ex
contact with J.W.'s counsel;
modifying the judgment pending the outcome of a motion for
treating the motion for stay on appeal as a motion
admitting into evidence Dr. Marvin Bergeson's testimony about the child's
identification of the perpetrator, Dr. Bergeson's report, and the GAL's
testimony about the child's statements;
basing the January 1997 modification on issues not identified by
the superior court before the hearing;
(7) permanently modifying the 1996 judgment without proper notice and
father, J.W., argues not that the orders were entered without
procedural error, but that any errors are mooted by correcting
the error of awarding custody to the stepfather in August
resolution of issues concerning the August 1996 judgment moots any
need to consider questions about the procedural adequacy of the
of these issues may arise again, but the legal and
factual contexts are likely to differ, rendering our present consideration
Nonetheless, the admissibility of Dr. Bergeson's testimony about S.R.'s identification
of the alleged perpetrator is particularly likely to arise again.
Although we do not decide whether the cited exceptions or
other exceptions to the hearsay rule may apply, we note
717 P.2d 394 (Alaska App.1986), and Broderick
v. King's Way Assembly of God Church,
808 P.2d 1211 (Alaska 1991), offer guidance on this issue.
August 1996 Judgment
it an abuse of discretion to award custody of S.R.
to her stepfather, R.J.?
father, J.W., argues that the superior court improperly applied the
Alaska standard for resolving a custody dispute between a parent
He reasons that under Turner
540 P.2d 1051 (Alaska 1975), and Carter
779 P.2d 1195 (Alaska 1989), the superior court must find
that the parent is unfit or that it would be
harmful to the child's welfare to be placed with the
parent before the non-parent is awarded custody.
He claims that there is insufficient evidence to make this
The stepfather, R.J., argues that the superior court correctly applied
standard and “clearly”
found that “placement
outside [R.J.]'s home would be detrimental to the child....”
stands for the proposition that parental custody is preferable and
only to be refused where it is clearly detrimental to
P.2d at 1055.
the superior court determines that the parent is unfit or
has abandoned the child, or that the welfare of the
child requires that the non-parent receive custody, the parent must
be awarded custody.”
We reaffirmed these principles in B.J.
950 P.2d 113 (Alaska 1997);
914 P.2d 212, 216 n. 8 (Alaska 1996);
781 P.2d 985, 988-89 (Alaska 1989);
779 P.2d at 1197;
567 P.2d 308, 310 (Alaska 1977).
order to satisfy the ‘welfare
of the child’
requirement, the non-parent must show that it clearly would be
detrimental to the child to permit the parent to have
540 P.2d 1051, 1054 (Alaska 1975).
The nonparent has the burden of proving the detriment by
a preponderance of the evidence.
567 P.2d 308, 310 (Alaska 1977).
concurring opinions in Turner
expressed reservations about courts' ability to distinguish between a “welfare
of the child”
test and a “best
540 P.2d at 1055 (Dimond, J., concurring);
at 1056 (Rabinowitz, C.J., concurring).
Reservations about how the Turner
standard and the parental preference are applied have been expressed
on at least one occasion.
639 P.2d 298, 302 & n. 4 (Alaska 1982) (concern
that the categorization between parent and non-parent may be undesirable)
(Compton, J., dissenting).
It has not been necessary for us to consider parties'
arguments for a different standard.
922 P.2d 896, 898 (Alaska 1996).
The stepfather, R.J., does not argue that we should overturn
instead argues that the findings satisfied the Turner
standard as refined in subsequent decisions.
He argues that Turner
be satisfied by a showing that placement outside the non-parent's
home may be detrimental to the child regardless
of the fitness of the biological parent.”
agree with the father that the 1996 judgment is not
supported by the fact findings necessary for an award of
custody to a non-parent.
The superior court recited the Turner
standard, as set out in Carter,
and also cited to Buness,
but found that S.R.'s “psychological
and emotional development, as well as her overall welfare, requires
that this relationship [with her stepfather] not be traumatically interrupted.”
The superior court based this finding on the fact that
S.R. had lived most of her life with her stepfather,
that he had become her psychological father in many ways,
and that he could provide her a stable home.
The superior court found that S.R.'s father had not known
her for most of her life and that they had
just recently become reacquainted.
Yet the superior court also found that both men are
parents who desire the best for [S.R.].”
After determining that S.R.'s welfare required a parental role for
the stepfather, the superior court then seemingly applied the statutory
factors under AS 25.24.150 to determine that *1211
it was in S.R.'s best interest that the stepfather have
custody during the school year and that the father have
custody during the school vacations.
was no express finding that it would be detrimental for
S.R. to be placed in her natural father's custody.FN4
use of the word “detrimental”
is not mandatory, the findings had to demonstrate that the
detriment standard was being applied.
The court instead appears to have applied the best interest
standard set out in AS 25.24.150.
The court may have reasoned that the stepfather's assumption of
status gave him parental rights equal to the father's;
citation of Buness
suggests that it may have considered that the relationship between
the child and the stepfather conferred a parent-like standing on
the stepfather that made it unnecessary to apply the Turner
Such an analysis, however, would have been contrary to the
essential holding of Turner,
is preferable and only to be refused where clearly detrimental
to the child.”
P.2d at 1055.
The relationship between the stepparent and the child, no matter
how close, does not justify application of the best interests
court may take the relationship into account, however, in deciding
whether awarding custody to the biological parent would be detrimental
to the child.
Absent a finding in this case that the father is
unfit, has abandoned the child or that the welfare of
the child requires that a non-parent receive custody, the parental
We therefore reverse the superior court's 1996 award of custody
to the stepfather, R.J., and remand
for further proceedings consistent with this opinion.FN6
context we interpret the court's finding that the child's welfare
requires that her relationship with her stepfather “not
be traumatically interrupted”
to mean that any transfer of custody should be gradual
rather than sudden, not that the child's welfare requires that
she be permanently placed with her stepfather.
father argues in his brief that there is insufficient evidence
in the record to support a finding that placement with
her father would be detrimental to S.R. We decline to
decide that there is insufficient evidence as a matter of
Moreover, the father's counsel acknowledged at oral argument that further
proceedings may be necessary to determine custody under Turner.
Also, for reasons discussed below, the child's tribe must be
given an opportunity to address the fitness of the contestants.
they may be relevant to custody issues, the superior court
on remand may consider post-judgment events in applying the proper
the Indian Child Welfare Act apply here?
is undisputed that S.R., her father, and her stepfather are
The August 1996 order, citing 25 U.S.C. §
concluded that “the
Indian Child Welfare Act [25 U.S.C. §§
does not apply to this matter.”
The order did not explain the reason for that conclusion,
but noted that “both
parties are Indian.”
It appears no formal notice of the 1996 and 1997
custody proceedings was given to any Indian tribe, including the
village which apparently considers S.R. to be a tribal member.
Native Village of Birch Creek (NVBC) moved to intervene in
another proceeding concerning S.R., and filed with its motion a
1996 Dendu Gwich'in Tribal Council resolution declaring S.R. to be
a tribal member of NVBC. NVBC never moved to intervene
in the present custody dispute.
Native Village of Fort Yukon (NVFY) moved to intervene in
the present custody dispute in 1997, alleging that it was
After initially granting the motion, the superior court ultimately denied
it on the ground “the
is a member of [NVBC] and is not a member
NVFY did not appeal from the denial of its intervention
father, J.W., argues that it was error not to apply
the Indian Child Welfare Act (ICWA) to the custody proceedings.
He argues that before the superior court could place the
child with her stepfather, it had to determine pursuant to
that there was clear and convincing evidence, including expert testimony,
that serious emotional or physical damage would likely result if
S.R. were placed with her father.
He also argues that ICWA would not have applied if
S.R. had been placed with him, S.R.'s father.
stepfather, R.J., argues that ICWA does not apply.
He alternatively asserts, however, that because he qualifies as S.R.'s
he is entitled to receive the benefit of ICWA protections
against removal of a child, and that applying ICWA for
the father's benefit would lead to the “absurd
of removing the child from her Indian custodian.
protections, if applicable, include the clear and convincing burden of
proof for removing an Indian child from a parent or
and a requirement that the child's Indian tribe be allowed
to intervene in the proceeding.FN9
The legislative history of ICWA reveals that Congress was concerned
with two goals:
the best interests of Indian children and promoting the stability
and security of Indian tribes and families.
H.R.Rep. No. 95-1386, at 8 (1978);
Band of Choctaw Indians v. Holyfield,
490 U.S. 30, 37, 109 S.Ct. 1597, 1602, 104 L.Ed.2d
651 P.2d 1170, 1172 (Alaska 1982).
Although ICWA provides procedural protections for parents and Indian custodians,
(imposing higher burden of proof for foster care placement), it
also protects the tribes and the Indian children, see,
(giving tribes exclusive jurisdiction in custody disputes on reservations, and
the right to intervene in state court custody proceedings).
Congress determined that tribal participation in custody proceedings would better
reflect Native values, and that placement decisions would better reflect
the best interests of Indian children.
25 U.S.C. §
490 U.S. at 34-37, 109 S.Ct. at 1600-1602;
No. 95-1386, at 10, 19 (1978).
Applying ICWA to custody disputes between parents and non-parents allows
the tribe an opportunity to intervene and offer its insight
into the relative fitness of the contestants.
foster care placement may be ordered in such proceeding in
the absence of a determination, supported by clear and convincing
evidence, including testimony of qualified expert witnesses, that the continued
custody of the child by the parent or Indian custodian
is likely to result in serious emotional or physical damage
to the child.
any State court proceeding for the foster care placement of,
or termination of parental rights to, an Indian child, the
Indian custodian of the child and the Indian child's tribe
shall have a right to intervene at any point in
was also concerned with state action, including judicial action, in
custody decisions involving Indian children.
25 U.S.C. §
No. 95-1386, at 19 (1978).
Although our state standard for awarding custody of a child
to a non-parent is higher than the best interests standard
usually applied in custody disputes, ICWA imposes an even higher
standard of proof before an Indian child may be removed
from the custody of a parent or Indian custodian.FN10
law requires the non-parent to prove by a preponderance standard
that parental placement would be detrimental to the child.
note 3. ICWA requires that an order for foster care
placement must be supported by clear and convincing evidence of
likely serious emotional or physical damage to the child if
he or she remains with the parent.
applies to “child
involving an Indian child.
The only type of “child
relevant here is a “foster
which ICWA defines as:
action removing an Indian child from its parent or Indian
custodian for temporary placement in a foster home or institution
or the home of a guardian or conservator where the
parent or Indian custodian cannot have the child returned upon
demand, but where parental rights have not been terminated.
The definition contains four requirements:
an action removing an Indian child from its parent or
Indian custodian, FN11
(2) temporary placement in a foster home, institution, or home
of a guardian or conservator, (3) inability of the parent
or Indian custodian to have the child returned upon demand,
and (4) absence of termination of parental rights.
The last three *1213
requirements clearly existed here:
1996 placement with the stepfather was a temporary placement in
the home of a guardian;
the court awarded custody to the stepfather, the father could
not obtain S.R.'s return upon demand;
no parental rights had been terminated.
means any Indian person who has legal custody of an
Indian child under tribal law or custom or under State
law or to whom temporary physical care, custody, and control
has been transferred by the parent of such child.”
stepfather argues that placement with him was not a placement
in a “foster
home or institution or the home of a guardian or
He was, however, legally S.R.'s guardian or conservator when she
was with him under the 1996 custody orders because he
is not her natural or adoptive father.
While ICWA does not define “guardian,”
the rights he acquired under the 1996 orders brought him
within the common definition of the term.
Webster's New World Dictionary
at 620 (1972) (defining “guardian”
a person who guards, protects, or takes care of another
(2) a person legally placed in charge of the affairs
of a minor”).
re Custody of A.K.H.,
502 N.W.2d 790, 792-93 (Minn.App.1993) (finding that placement with grandparent
was placement with guardian or conservator);
re Custody of S.B.R.,
43 Wash.App. 622, 719 P.2d 154, 156 (1986) (same).
also appears that this case involves “an
action removing an Indian child from its parent or Indian
All proceedings thus far involved the potential, if not actual,
removal of the child from the father.
Although he did not previously have physical custody, the proceedings
still removed the child from the father's legal custody.
re Adoption of a Child of Indian Heritage,
111 N.J. 155, 543 A.2d 925, 937 (1988) (stating that
whose custody such child was removed,”
refers to legal rather than actual physical custody of child);
re Welfare of W.R. and A.R.,
379 N.W.2d 544, 549 (Minn.App.1986) (finding §
provision of “the
continued custody of the child by the parent”
does not refer to the physical custody of the child);
re Adoption of Baade,
462 N.W.2d 485, 490 (S.D.1990) (“the
custody referred to in §
is legal rather than physical custody”).
We consequently conclude that the custody proceeding was a “foster
within the meaning of ICWA, §
stepfather argues that ICWA does not apply because its purpose
restrict placements outside the Indian home and away from the
existing family thereby causing the breakup of the Indian family.”
reading of ICWA's purpose is too narrow.
As we noted above, one purpose of ICWA is to
permit tribal participation in state custody proceedings.
This purpose is advanced by permitting the child's tribe to
express its preference or comment on the relative fitness of
This opportunity increases the likelihood non-Indians will recognize and appreciate
cultural and social values thought by the tribe to be
important in resolving the custody dispute.
the stepfather, similarly argues that ICWA does not apply to
this case because it is an “intra-family
These arguments originate in In
189 Mont. 524, 617 P.2d 121, 125-26 (1980), which held
that ICWA did not apply to a custody dispute between
a parent and the grandparents because it was not intended
to apply to “internal
We declined to follow Bertelson
651 P.2d 1170, 1173 n. 6 (Alaska 1982).
stepfather also argues that applying ICWA for the father's benefit
cause the absurd result”
of removing S.R. from her existing Indian family and from
the custody of her Indian custodian.
proceedings have been held to be foster care placements.
The New Mexico Court of Appeals found that the placement
of children after a parent's death was a foster care
proceeding under ICWA because the children had not been placed
with their aunt, who was their Indian custodian under tribal
custom, and therefore were “removed”
re Ashley Elizabeth R.,
116 N.M. 416, 863 P.2d 451, 453 (N.M.App.1993).
Other courts, while not specifically addressing the “removal”
issue, have held that ICWA applied to custody disputes between
parents and non-parents.
re Custody of A.K.H.,
502 N.W.2d 790, 792-93 (Minn.App.1993) (finding that custody dispute between
parents and grandparents was a foster care proceeding and that
re Custody of S.B.R.,
43 Wash.App. 622, 719 P.2d 154, 156 (1986) (same).
stepfather also argues that this dispute falls within the exclusion
to ICWA for custody disputes between parents in a divorce
He reasons that this dispute is really the equivalent*1214
of a custody dispute between two parents because he
was S.R.'s Indian custodian and psychological parent, who has acted
for most of her life, and who may be treated
as a parent under state law.
child custody proceedings to which ICWA applies do “not
include a placement based ...
upon an award, in a divorce proceeding, of custody to
one of the parents.”
ICWA defines “parent”
to mean “any
biological parent or parents of an Indian child or any
Indian person who has lawfully adopted an Indian child, including
adoptions under tribal law or custom.
It does not include the unwed father where paternity has
not been acknowledged or established.”
Neither stepparents acting in
nor Indian custodians are included in this definition.
is included in the definition of “extended
is clearly not a “parent”
within ICWA usage, and therefore a dispute between a parent
and stepparent does not fall within the ICWA exclusion for
custody disputes between parents.
shall be as defined by the law or custom of
the Indian child's tribe or, in absence of such law
or custom, shall be a person who has reached the
age of eighteen and who is the Indian child's grandparent,
aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece
or nephew, first or second cousin, or stepparent.
conclude that ICWA applied to the proceedings below.
Because the April 1996 interim custody order and the August
1996 judgment violated the provisions of §
and possibly §
they must be vacated and this case remanded for further
proceedings consistent with ICWA. 25 U.S.C. §
provides in pertinent part:
parent or Indian custodian from whose custody such child was
may petition any court of competent jurisdiction to invalidate such
action upon a showing that such action violated any provision
of sections 1911, 1912, and 1913 of this title.
effects of this conclusion are not completely clear.
Certainly the superior court proceedings removed the child from the
legal custody of a parent or Indian custodian without giving
the child's tribe an opportunity to participate.
As a result, any findings weighing the fitness of the
contestants were made without benefit of the tribe's comments.
That deficiency can be remedied only if the proper tribe
is given notice and the opportunity to participate on remand.
father invokes §
for its requirement of “clear
evidence before an Indian child is removed from a parent
or Indian custodian.
The stepfather argues that if ICWA does apply, he qualifies
as the Indian custodian, and therefore is also entitled to
the benefit of the ICWA protections.
is unclear whether the stepfather is an Indian custodian.
Although the stepfather alternatively argued below that he qualified as
the child's Indian custodian, he does not appear to have
sought a finding of fact to that effect.
On remand, the superior court must determine whether the stepfather
was S.R.'s “Indian
within the meaning of §
Indian person who has legal custody of an Indian child
under tribal law or custom or under State law or
to whom temporary physical care, custody, and control has been
transferred by the parent of such a child.
stepfather may be the child's Indian custodian under tribal law
or custom, or because the mother transferred physical care, custody,
and control of the child to the stepfather.
The stepfather may also be an Indian custodian under state
law, but because the April 1996 order and August 1996
judgment are vacated, the court should not consider whether he
was an Indian custodian under those orders.
the stepfather does not establish that he was the child's
Indian custodian, he has no arguable right to invoke the
ICWA heightened standard of proof.
Instead, the father will have the benefit of §
finding on remand that the stepfather is the child's Indian
custodian will squarely raise the legal question whether §
applies reciprocally in a dispute between a parent and Indian
Subsection 1912(e) expresses a strong preference for *1215
the parent or Indian custodian.”
The subsection treats parents and Indian custodians as coequals, as
does the definition of “foster
No section of ICWA indicates that Congress preferred a parent
to an Indian custodian if the parent did not previously
have physical custody.
states that the protections of ICWA do not apply when
an Indian child is removed from a foster care home
and returned to the parent or Indian custodian from whose
custody the child was originally removed, we cannot assume that
Congress generally preferred parents to Indian custodians.
purposes behind ICWA are consistent with restricting §
to disputes between persons having favored status-parents and Indian custodians-and
others who are neither parents nor Indian custodians.
There would appear to be no logical reason consistent with
the statutory purpose to apply §
in a contest between two equally favored contestants.
We therefore hold that if the stepfather proves on remand
that he is S.R.'s Indian custodian, §
will not apply and the superior court should instead apply
the Alaska standard for custody disputes between parents and non-parents
discussed in Part III.C.1.FN17
25 U.S.C. §
any case where State or Federal law ...
provides a higher standard of protection to the rights of
the parent or Indian custodian of an Indian child than
the rights provided under this subchapter, the State or Federal
court shall apply the State or Federal standard.”).
is not inconsistent to apply the state law parental preference
here, because we are simply reading the §
standard to be inapplicable;
does not clearly express a policy that forbids the state
from applying a preference for the claim of the biological
parent whose rights have not been terminated by the child's
This case does not involve a ruling by a tribal
court that terminates the father's custodial rights in favor of
the 1996 judgment was not based on the fact findings
required by state law for awarding custody of the child
to the stepfather, and because the provisions of ICWA were
not applied in the proceedings below, we VACATE the May
15, 1997, Second Modification of Judgment and the August 28,
1996, Findings of Facts, Conclusions of Law, and Judgment, and
REMAND for further proceedings to determine under state law whether
placement with the father would be clearly detrimental to S.R.
Because ICWA applies to this dispute, the child's tribe must
be given an opportunity to participate in those proceedings and
offer evidence on the fitness of the contestants and on
the issue of whether the stepfather, R.J., is an Indian
Any such evidence may be considered in applying the Turner
the superior court concludes under Turner
that it would be clearly detrimental to the child to
return her to her father, the court will next have
to determine whether the father is entitled to
the benefit of the “clear
standard of 25 U.S.C. §
Unless it finds that the stepfather is S.R.'s “Indian
under 25 U.S.C. §
the court cannot award custody to the stepfather unless he
If the stepfather was S.R.'s Indian custodian, the ICWA statutory
preference will not apply, and custody will turn on the
outcome of the Turner