Home

Back to Table of Contents

Law and Order Code of the Fort McDowell Yavapai Community, Arizona

Adopted by Resolution No. 90-30, July 9, 1990 and subsequently amended. [Includes amendments dated 2000.]

CHAPTER 10 - DOMESTIC RELATIONS



Art. I. In General, §§ 10-1 - 10-10

Art. II. Marriage, Divorce, Annulment, Separate Maintenance,
§§ 10-11 - 10-30

Art. III. Adoption, §§ 10-31 - 10-50

Art. IV. Guardianship, §§ 10-51 - 10-70

Div. 1. Generally, §§ 10-51 - 10-70

Div. 2. Guardianships for Incompetents, §§ 10-71 - 10-74
Art. V. Domestic Violence, § 10-75



 
ARTICLE I. IN GENERAL

Sec. 10-1. DETERMINATION OF PATERNITY AND SUPPORT.

The court shall have jurisdiction of all suits brought to determine the paternity of a child and to obtain the judgment for the support of the child. A judgment of the court establishing the identity of the father of the child shall be conclusive of that fact in all subsequent determination of inheritance by the court.

(Sec. 10-2 - 10-10. RESERVED.)




ARTICLE II. MARRIAGE, DIVORCE, ANNULMENT,
SEPARATE MAINTENANCE

Sec. 10-11. MARRIAGES TO BE ACCORDING TO STATE LAW.
  1. Since section 1(m), Article V, amended constitution and bylaws of the Fort McDowell Yavapai Indian Community approved April 19, 1954, provided that all marriages in the future shall be in accordance with state laws, it is recognized that the powers of the community are limited by Article III, section 5(c) of the amended constitution and bylaws of the Yavapai Tribe, but it further recognized that the limitation is for the best interests and welfare of the community in cases of future inheritance problems or possible future state benefits. State marriage licenses may be secured at the office of the clerk of each county court.

  2. All marriages and divorces of members of the Fort McDowell Yavapai Indian Community shall be recorded within thirty (30) days with the Yavapai Agency and community court.

Sec. 10-12. MARRIAGES VALIDATED.


All purported marriages of members of the Fort McDowell Yavapai Indian Community wherein such members have lived together within the Fort McDowell Indian Reservation prior to December 27, 1957, date of approval of Ordinance No. 1, Revised (Law and Order Code), for the Yavapai Indian Community, and have been recognized as man and wife in their community are hereby validated for all purposes from the date of their inception.


Sec. 10-13. PROCEDURE FOR JUDGMENT OF VALIDITY.
  1. Any member of the Fort McDowell Yavapai Indian Community claiming that his or her marriage was validated by section 10-12 may file a petition in the Fort McDowell Yavapai Tribal Court for a judgment declaring that such marriage has been so validated. It the petitioner's spouse in such alleged marriage is known to the petitioner to be living, such spouse must also sign the petition, or be named as defendant and notified of the suit as provided in section 5-11 of this Code. If the petitioner's spouse in such alleged marriage in not known to the petitioner to be living, the petitioner must prove to the satisfaction of the court that such spouse is dead or has been absent for five (5) successive years until the date of hearing the petition without being known to the petitioner within that time to be living, or the petition shall be dismissed.

  2. If the petitioner, having complied with subsection (a) hereof, proves to the satisfaction of the court that he or she and his or her alleged spouse lived together within the Fort McDowell Indian Reservation prior to December 27, 1957, date of approval of Ordinance No. 1, Revised (Law and Order Code), for the Fort McDowell Yavapai Indian Community, and were recognized as man and wife in their community, the court shall issue a judgment that such petitioner and spouse have been validly married. If feasible, the court shall also ascertain the date of inception of such marriage and the names of the children born thereof and shall recite such information in the judgment.

  3. Any judgment of validity of marriage issued by the Fort McDowell Yavapai Tribal Court in accordance with this section may be forwarded to the superintendent of the Yavapai Agency, who may then cause the marriage to be recorded in the tribal census rolls and a certificate of marriage to be issued to the petitioner.

  4. If a child whose parents are both deceased contends that such parents' marriage was validated by section 10-12, such child may file a petition in the Fort McDowell Yavapai Tribal Court for judgment that such marriage was so validated. If such petitioner proves to the satisfaction of the court that his parents are both deceased and that they lived together within the Fort McDowell Indian Reservation prior to December 27, 1957, date of approval of Ordinance No. 1, Revised (Law and Order Code), for the Fort McDowell Yavapai Indian Community, and were recognized as man and wife in their community, the court may issue a judgment that such parents were validly married and that the petitioner is their legitimate offspring. If feasible, the court shall also ascertain the date of inception of such marriage and shall recite such date in the judgment. Such judgment may be forwarded to the superintendent for recording and issuance of a certificate of marriage.

Sec. 10-14. BIGAMY.
  1. Any married person who shall marry another person without having obtained a divorce shall be deemed guilty of bigamy and upon conviction thereof shall be sentenced to imprisonment for a period not to exceed six (6) months.

  2. This section shall not apply to the remarriage of a person whose husband or wife shall have been continually absent from such person for a period of three (3) years or more, and shall not have been known by such person, to have been living within that time nor to any person whose former marriage shall have been declared void by any court having competent jurisdiction.


Sec. 10-15. ANNULMENT OF MARRIAGE.

The court may dissolve a marriage and may adjudge a marriage to be null and void when the cause alleged constitutes an impediment rendering the marriage void.


Sec. 10-16. DIVORCE OR SEPARATE MAINTENANCE.
  1. SEPARATE MAINTENANCE.

    1. GROUNDS. The court may grant or issue a decree of separate maintenance when one spouse wilfully deserts or abandons the other spouse or when facts exist which would be grounds for granting an absolute divorce. An action for separate maintenance may be brought by a spouse without the necessity of an action for absolute divorce. The action for separate maintenance or the judgment of separate maintenance shall not bar the plaintiff from maintaining an action for absolute divorce upon the same grounds.

    2. PROCEEDINGS. The proceedings shall be commenced and conducted as actions for divorce and the court may award such sums for alimony and child support to be paid by the husband or wife as the court shall adjudge the circumstances and situations of the parties warrant.

    3. AMENDMENT OF JUDGMENT. The court may at any time after entry of final judgment amend, alter or change the provisions of the judgment with respect to the sum to be paid, as the circumstances may require.

  2. DIVORCE. The court shall enter a decree of dissolution of marriage if it finds that the marriage is irretrievably broken.

Sec. 10-17. PROCEDURE FOR ANNULMENT, DIVORCE OR SEPARATE MAINTENANCE.

  1. FILING OF COMPLAINT. The complaining party shall file with the court a verified complaint stating concisely his or her cause for action and thereupon the court shall issue a summons to run in the name of the Yavapai Community Court to the defendant apprising him or her of the pendency of action. The summons shall concisely state the grounds upon which annulment, divorce, or separate maintenance is asked. The summons and complaint when issued shall be served as provided in Chapter 5 of this Code. The procedure for pretrial and trial of cases under this chapter shall be governed by Chapter 5 of this Code.

  2. JUDGMENT. The court shall thereupon make and enter findings of facts and conclusions of law, and issue a signed decree signed by the chief judge, after which the divorce or separate maintenance decree shall become final subject to the provisions of this Code.

Sec. 10-18. LEGITIMACY OF CHILDREN NOT AFFECTED BY DIVORCE.


A divorce shall not affect the legitimacy of the children.


Sec. 10-19. PERMANENT ALIMONY, CUSTODY OF CHILDREN AND COSTS.


In the final decree of divorce, the court may, in addition to the division of the common property of the parties, directed one spouse to pay the spouse awarded custody of the children of the parties as may be necessary for the support and maintenance of the custodial spouse and minor children of the parties. The custody of the children may be awarded to the wife or husband as may be necessary or proper, and the court may make such disposition of and expedient under all circumstances for their present comfort and future well-being. The court may assess the cost to either or both parties of the suit, and shall in the decree change the name of the wife back to a former name if especially asked for in the pleadings.


Sec. 10-20. MODIFICATION OF JUDGMENT AFFECTING ALIMONY AND SUPPORT OF MINOR CHILDREN.


The court may, from time to time, after the entry of the final decree or on petition of either party, amend, revise and alter such portions of the decree as related to the payment of money for the support and maintenance of one spouse or the support of the minor children, as may be just; and amend, change or alter any provision therein respecting the care, custody or maintenance of the children of the parties as the circumstances of the parents and the welfare of the children may require.

(Sec. 10-21 - 10-30. RESERVED.)



ARTICLE III. ADOPTION

Sec. 10-31. ADOPTION OF A MINOR.

Any minor child may be adopted by an adult person, in the cases and subject to the rules prescribed in this article.


Sec. 10-32. AGE OF PERSON ADOPTING.


The person adopting the child must be at least ten (10) years older than the child adopted.


Sec. 10-33. CONSENT OF SPOUSE.


A married person not lawfully separated from his spouse cannot adopt a child without the consent of the spouse, provided that the spouse not consenting is capable of giving such consent.


Sec. 10-34. CONSENT TO ADOPTION BY NATURAL PARENTS AND BY CHILD OVER TWELVE.

  1. PARENTS/GUARDIAN.

    No adoption shall be granted unless consent to adopt has been obtained and filed with the court from the following:

    1. From both natural parents, if living, except in the following cases:

      1. Consent is not necessary from a parent who has been declared incompetent;

      2. Consent is not necessary from a parent whose parental rights have been judicially terminated;

      3. Consent is not necessary from a parent who has previously consented that, the child be placed for adoption;

      4. Consent is not necessary from a father who is not married to the mother of the child both at the time of its conception and at the time, of its birth, unless the father under oath has acknowledged in a document filed with the court at or prior to the time the petition for adoption is filed, or unless the parentage of the father has been previously established by judicial proceedings.

    2. From any guardian of the person of the child appointed by a court and given authority by it to consent to the child's adoption.

    3. From any agency which has been given consent to place the child for adoption by the parent or parents whose consent would be necessary under paragraph (1) of this subsection, or which has been given authority in other proceedings to place the child for adoption.

  2. CHILD OF TWELVE. Where the child is twelve (12) years of age or older, the adoption shall not be granted without his consent. Such consent shall be given in open court or shall be in conformity with this section or in such other form as the court may direct.

  3. WAIVER OF CONSENT. Notwithstanding the provisions of section 10-36, the court may waive the requirement of the consent of any person required to give consent when, after a hearing on actual notice to all persons adversely affected, the court determines that the interest of the child will be promoted thereby. In such cases, the court shall make written findings of all facts upon which its order is founded.

  4. MINORITY NO BAR TO COMPETENCE. The minority of the child or parent shall not affect his competency to give consent in the instances set forth in this section.

Sec. 10-35. FORM AND CONTENT OF CONSENT TO ADOPTION.

  1. WRITTEN; WITNESSED. All consents to adoption shall be in writing and signed by the person giving the consent and witnessed by two (2) or more credible witnesses who are at least eighteen (18) years of age and who subscribed their names in the presence of the person giving the consent or shall be duly acknowledged before an officer authorized to take acknowledgments by the person giving consent.

  2. TIME LIMIT. A consent given before seventy-two (72) hours after the birth of a child is invalid.

  3. DATED; IDENTIFIED. The consent shall be dated and shall sufficiently identify the party giving the consent and the child to whose adoption the consent is given.

  4. DESIGNATION OF PLACEMENT AGENCY, ADOPTIVE PARENT.

    The consent shall designate either of the following:

    1. The particular person or persons authorized by the party giving the consent to place the child for adoption.

    2. The particular person or persons authorized to adopt the child by the person giving the consent.

  5. TRUE NAMES TO BE USED; EXCEPTIONS. The true names of the adopting person or persons shall be used except that fictitious names may be used if the person or persons are considered by the court to be acceptable to adopt the child, the consenting party knows that the names used are fictitious and does not wish to know the true names and the consenting party has been furnished with all information which the consenting party wished to know about the adopting person or persons.

  6. INVALIDITY OF CERTAIN CONSENT. A consent, other than to any agency, which does not designate a particular person or persons, or which purports to permit a third person to locate or nominate an adoptive parent, is invalid.

Sec. 10-36. TERMINATION OF PARENTAL RIGHTS.


Any person or agency that has legitimate interest in the welfare of a child, including but not limited to a relative, foster parents, physician or a private license child welfare agency, may file a petition for the termination of the parent-child relationship if one or more of the following grounds exist:
  1. The parent has abandoned the child or the parent has made no effort to maintain a parental relationship with the child. It shall be presumed the parent intends to abandon the child if a child has been left without any provision for his support and without any communication from such parent for a period of six (6) months or longer. If, in the opinion of the court, the evidence indicates that such parent has made only token efforts to support or communicate with the child, the courts may declare the child abandoned by such parent.

  2. The parent has neglected or willfully abused the child.

  3. The parent is unable to discharge the parental responsibilities because of mental illness or mental deficiency and there are reasonable grounds to believe that the condition will continue for a prolonged, indeterminate period of time.

  4. The parent is deprived of his civil liberties due to the conviction of a felony if the felony of which such parent was convicted is of such nature as to prove the unfitness of such parent to have future custody and control of the child, or if the sentence of such parent is of such length that the child would be deprived of a normal home for a period of years.

  5. The parents have relinquished their rights to the child to an agency or have consented to the adoption.

Sec. 10-37. HEARING TO BE BY JUVENILE COURT; RULING ON GROUNDS FOR TERMINATION.
  1. Adoption cases shall be heard by the juvenile court. The general public shall be excluded and only such persons shall be admitted whose presence the judge finds to have a direct interest in the case or the work of the court, provided that such person so admitted shall not disclose any information secured at the hearing. The court may require the presence of any parties and witnesses it deems necessary to the disposition of the petition, except that a parent who has executed a waiver of his presence at said hearing or who has relinquished his rights to the child shall not be required to appear at the hearing.

  2. The court's findings with respect to grounds for termination shall be based upon a preponderance of the evidence under the rules applicable and adhering to the trial of civil cases. The court may consider any and all reports submitted or ordered by the court for the assistance in making a determination.

Sec. 10-38. HEARING, ORDER AND RIGHTS UNDER ADOPTION ORDER.

  1. Petitions filed under this chapter shall be heard by the court and such hearings shall be as informal as the requirements of due process and fairness permit. The person petitioning for adoption, the spouse of a petitioner and the child to be adopted shall attend unless the court orders otherwise. Only such other persons shall be admitted as the court shall find to have a direct interest in the case before the court. Any such person so admitted shall not disclose any information secured at the hearing. The court may require the presence of such other witnesses as it deems necessary.

  2. The court's finding shall be based upon a preponderance of the evidence. The court may consider any and all reports which it may order or which may be submitted to the court.

  3. If, after the hearing and consideration of all the evidence, the court is satisfied that the requirements of this chapter have been met and that the adoption is in the best interest of the child, the court shall make an order granting the adoption. The order of the court shall be in writing and shall recite the findings of fact upon which such order is based, including findings pertaining to the court's jurisdiction. Such order shall be conclusive and binding on all persons from the date of entry subject to appeal as is provided for by the Code.

  4. Upon entry of the decree of adoption, the relationship of parent and child and all the legal rights, privileges, duties, obligations, and other legal consequences of the natural relationship of child and parent shall thereafter exist between the adopted person and the adoptive parent the same as though the child were born to the adoptive parent in the lawful wedlock. The adopted child shall be entitled to inherit property from the adoptive parent and the adoptive parent shall be entitled to inherit property from the adoptive child the same as though the child were born to the adoptive parent in lawful wedlock.

Sec. 10-39. ADOPTION OF ILLEGITIMATE CHILD BY FATHER.


The father of an illegitimate child by publicly acknowledging it as his own, receiving it as such, with the consent of his wife if he be married, into his family, and otherwise treating it as if it were a legitimate child, thereby adopts it as such, and such child thereupon shall be deemed for all purposes legitimate from the time of its birth. The foregoing provisions of this chapter do not apply to such adoption.

(Secs. 10-40 - 10-50. RESERVED.)



ARTICLE IV. GUARDIANSHIP

DIVISION I. GENERALLY

Sec. 10-51. DEFINITIONS.
  1. A guardian is a person appointed to take care of a person or property of another.

  2. Guardians are either:

    1. General, or

    2. Special.

      A general guardian is a guardian of the person or all property of the ward, or both. A special guardian is any other.

  3. A ward is a person over whom or over whose property a guardian is appointed.

Sec. 10-52. APPOINTMENT BY COURT TO GUARDIANSHIP.

A guardian of a person or property, or both, of a member of the Fort McDowell Yavapai Indian Community who is a minor or of unsound mind may be appointed by the Yavapai Court.


Sec. 10-53. JURISDICTION OVER COURT-APPOINTED GUARDIANS.


The Fort McDowell Yavapai Community Court shall have exclusive jurisdiction over a guardian appointed by the court. No person, whether parent or otherwise, has any power as guardian of property, except by appointment as hereinafter provided.


Sec. 10-54. QUALIFICATIONS OF GUARDIANS.


To be appointed a guardian by the Fort McDowell Yavapai Community Court for a minor member of the Fort McDowell Yavapai Indian Community or for a mentally incompetent member, a person must be:
  1. A member of the Fort McDowell Yavapai Indian community, of good moral character, residing on the Fort McDowell Yavapai Indian Community.

  2. At least twenty-five (25) years of age.

  3. Qualified to administer the financial and personal affairs of his ward in a satisfactory manner.

Sec. 10-55. APPOINTMENT BY WILL OR DEED.


A guardian of a person or estate, or both, of a child, born or likely to be born, may be appointed by will or by deed to take effect upon the death of the parent appointing:
  1. If the child be legitimate, by the father, with the written consent of the mother, or by either parent, if the other be dead or incapable of consent.

  2. If the child be illegitimate, by the mother.

Sec. 10-56. TERMINATION OF POWERS.


The power of a guardian appointed by a parent is superseded:
  1. By his removal, as provided in the preceding section.

  2. By the solemnized marriage of the ward.

  3. By the ward attaining majority.

Sec. 10-57. ROLES FOR SELECTION OF COURT-APPOINTED GUARDIAN.


In awarding the custody of a minor or in appointing a general guardian, the court is to be guided by the following considerations:
  1. By what appears to be for the best interest of the child in respect to its temporal, mental and moral welfare; and if the child is of sufficient age to form an intelligent preference, the court may consider that preference in determining the guardian.

  2. Between the parents adversely claiming the custody of guardianship, neither parent is entitled to it as of right, other things being equal. If the child is less than seven (7) years, it should be given to the mother; if it is of an age to require education and preparation for work or business, then to the father.

  3. When two (2) persons are equally entitled to the custody of a child in other respects, preference is to be as follows:

    1. To a parent.

    2. To one who was indicated by the wishes of the deceased parent.

    3. To one who already stands in the position of a trustee of a fund to be applied to the child's support.

    4. To a relative.

Sec. 10-58. STATE LAW APPLICABLE.


In the appointment of a guardian for a minor member of the Fort McDowell Yavapai Indian Community, the laws of the State of Arizona will apply insofar as such laws do not conflict with the provisions of this division.


Sec. 10-59. FEES AND BOND REQUIRED.


The court shall fix a fee for the appointment of a guardian, the fee not to exceed in any case the amount of ten dollars ($10.00), and shall be empowered to require a bond from the guardian for the faithful performance of his duties according to law. The following conditions shall form and constitute a part of every such bond:
  1. To make an inventory of all property of the estate, real or personal, of his ward and that comes to his possession or knowledge, and to return the same within such time as the court may order.

  2. To dispose of and manage the estate according to law and for the best interest of the ward and faithfully to discharge his trust in the relation thereto, and also in relation to the care, custody and education of the ward.

  3. To render an account, on oath, of the property or estate of the ward in his hands and all proceeds or interest derived therefrom and of the management and disposition of same, within three (3) months after his appointment, at least once a year thereafter and at such other times as the court directs; and at the expiration of his trust to settle his account, with the court of the Fort McDowell Yavapai Indian Community, or with the ward, if he is of full age, or his legal representatives, and to pay over and deliver all the property of the estate, moneys and effects remaining in his hands, or due form him on such settlement to the person who is lawfully entitled thereto. Upon filing of the bond, duly approved, letters of guardianship will be issued to the person appointed.

Sec. 10-60. POWERS OF GUARDIANS.


A guardian appointed by the court has power over the person and property of the ward, unless otherwise ordered. He is charged with the custody of the ward and must look to his support, health, education and may fix the place of residence of the ward at any place on the Fort McDowell Yavapai Indian Community, but not elsewhere without permission of the court. He must keep safely the property of his ward and not permit any unnecessary waste or destruction of the real property nor make any sale of such property without the order of the Fort McDowell Yavapai Community Court, but must, so far as it is in his power, maintain the same, with its buildings and appurtenances, out of the income or other property of the estate, and deliver it to the ward at the close of his guardianship in as good condition as he received it.


Sec. 10-61. REMOVAL OF GUARDIAN.


A guardian appointed by the Yavapai Community Court may be removed for any of the following reasons:
  1. For abuse of his trust.

  2. For continued failure to perform his duties.

  3. For incapacity to perform his duties.

  4. For gross immorality.

  5. For removal from the Fort McDowell Yavapai Indian Community without consent of the court.

  6. On being convicted of a felony.

  7. When it is no longer necessary that the ward should be under guardianship.

Sec. 10-62. TERMINATION OF POWERS OF GUARDIANS APPOINTED BY COURT.


The power of a guardian appointed by a court is suspended only:
  1. By the order of the Fort McDowell Yavapai Community Court.

  2. If the appointment was made solely because of the ward's minority, by his obtaining majority, or

  3. [In regard to] the guardianship over the person of the ward, by the marriage of the ward.

Sec. 10-63. RELEASE BY WARD.


After a ward has come to his majority, he may settle accounts with his guardian and give him a release, which is valid if obtained fairly without undue influence. A guardian appointed by the court is not entitled to his discharge until one year after the ward's majority.

(Sec. 10-64 - 10-70. RESERVED.)



DIVISION 2. GUARDIANS FOR INCOMPETENTS

Sec. 10-71. GUARDIAN OF INCOMPETENT MEMBERS.

When it is represented to the court, by verified petition of any relative of friend, that any member of the Fort McDowell Yavapai Indian Community is from any cause mentally incompetent to manage his property, the Fort McDowell Community Court must cause notice to be given to the supposed incompetent person of the time and place of hearing such petition, not less than five (5) days before the time of such hearing; and such person, if able to attend, must be brought before the court. If after a full hearing and examination upon such petition, it appears to the court that the person in question is incapable of taking care of himself and managing his property, the court shall appoint a guardian of his person and estate with the general duties specified in Division 1 of this article. The court may, in its discretion, exclude all nonparticipants from such hearing.


Sec. 10-72. DUTIES; BOND.


Every guardian appointed as provided in section 10-71 has the care and custody of the person of his ward and the management of all his estate, until such time as the guardian is legally discharged, and he must give bond to such ward in like manner and with the like conditions as prescribed with respect to the guardian of a minor.


Sec. 10-73. RESTORATION OF CAPACITY.


Any person who has been declared mentally incompetent, or the guardian or any relative of such a mentally incompetent person within the third degree, or any friend may apply by petition to the Fort McDowell Yavapai Community Court to have the fact of his restoration to capacity judicially determined. The petition shall be verified and shall state that such person is mentally competent. Upon receiving the petition, the court shall appoint a day for the hearing and cause notice of the hearing to be given to the guardian of the petitioner if there be a guardian, and to his or her husband or wife, if there be one, and to his or her father or mother, if living on the Fort McDowell Yavapai Indian Community. The guardian or relative of the petitioner, or in the discretion of the court, any person may contest the right to the petition to the relief demand. Witnesses may be required to appear and testify as in other cases, and may be called and examined by the court. If it is found that the petitioner is of sound mind and capable of taking care of himself and his property, his restoration to capacity shall be adjudged, and the guardianship of such person, if such person is not a minor, shall cease.


Sec. 10-74. STATE LAWS APPLICABLE.


The Fort McDowell Yavapai Community Court shall apply the laws of the State of Arizona insofar as such laws do not conflict with the provisions of this article in the appointment of a guardian for a mentally incompetent member of the Fort McDowell Yavapai Indian Community and shall have exclusive jurisdiction over the guardian so appointed.



ARTICLE V. DOMESTIC VIOLENCE.


Sec. 10-75. STATE LAWS APPLICABLE.

The Fort McDowell Yavapai Court shall apply the laws of the State of Arizona, Arizona Revised Statutes § 13-3601 and 13-3602 in regard to domestic violence matters within the boundaries of the Fort McDowell Yavapai Community Reservation and shall have exclusive jurisdiction over all persons involved.

Back to Table of Contents

Back to Top
Home  |   Search  |   Disclaimer  |   Privacy Statement  |   Site Map