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Yomba Shoshone Tribe Law and Order Code

Approved: 2001

TITLE EIGHT - DOMESTIC RELATIONS


A. MARRIAGE


Sec. 1 Scope

This Title establishes the requirement for a valid marriage and the procedures that must be followed by all persons wishing to enter into a valid marriage.


Sec. 2
Consent

The consent of both parties is required before there can be a valid marriage. The parties must have the ability to consent.


Sec. 3
Ability to Consent

a. The following persons are legally incapable of giving a valid consent to the marriage contract, and therefore shall not be issued a license:

(1) A person under 18 years of age. However, a parent or guardian may give a valid consent for a person between the age of 16 and 18 years.

(2) A person who lacks mental capacity because of mental disease or defect of either temporary or permanent nature. Absent any other factor, a person suffering from epilepsy shall not be considered as lacking mental capacity.

(3) A person whose mental capacity is seriously impaired by drugs or alcohol.


Sec. 4
Court Orders

a. Availability of Court Orders - In the event that a parent or guardian will not consent to the marriage of a person under 18 years of age, or if there is no parent or guardian or if the person wanting to get married is under 16 years of age, a Tribal Court order permitting the marriage may be obtained by filing a petition with the Tribal Court Clerk.

b. Contents of Petition - The petition shall state the names of the parties who wish to be married, their ages, the names of the parent(s) or guardian(s), the reason the consent of the parent(s) or guardian(s) could not be obtained, and the reason the marriage should be permitted.

c. Procedure - The Clerk shall give the petition to the Tribal Judge immediately after filing. The Judge may schedule a hearing if more information is required. The hearing shall be held within a reasonable time from the day the petition is filed and the Judge shall announce his decision within a reasonable time from the date of the hearing. The Judge shall order that the marriage be permitted if a sufficient reason is given. Pregnancy, while it is a factor to be considered, is neither determinative nor required.


Sec. 5 Marriage License

a. Requirement - A marriage license is required before a marriage ceremony may be performed within this jurisdiction.

b. Procedure - Persons wishing to marry shall request a license from the Tribal Court Clerk. The license shall be on a form approved by the Tribal Judge. The Clerk shall issue a license as long as they are satisfied as to the parties' ability to consent.

c. Contents - The license shall state the names of the parties, their ages, their addresses, and the names of the parties' parent(s) or guardian(s), when necessary. The license shall be signed and dated by the Tribal Court Clerk.

d. Denial of License - If the Tribal Court Clerk refuses to issue a license because they are not not satisfied as to the parties ability to consent, the parties may request a hearing before the Tribal Judge. Said hearing shall be held within a reasonable time. The Tribal Judge shall resolve all disputes as to the marriage license.

e. Certificate of Marriage - The Tribal Court Clerk shall issue a blank certificate of marriage at the same time the license is issued. The certificate shall contain a space to fill in the names of the parties and their ages, and title of the person performing the ceremony, and shall contain a statement that the parties consent to the establishment of the relationship of husband and wife between themselves, such statement to be signed by the parties at the time of the ceremony. The certificate shall also include a space for the signature of the person performing the ceremony, date it was performed and spaces for the signature of two witnesses, and a space for a signature of the Tribal Court Clerk.

f. Time Limit for Validity - A license is valid for 30 days. A ceremony performed with a license issued more than 30 days previously is not valid.


Sec. 6
Validity of Licenses Issued Outside This Jurisdiction

A license issued outside this jurisdiction may not be used for ceremonies performed within this jurisdiction


Sec. 7
Marriage Entered Into Outside This Jurisdiction

Marriages entered into outside this jurisdiction are valid within this jurisdiction, if they are valid in the jurisdiction in which they were entered into.


B. INDIAN CUSTOM MARRIAGE AND DIVORCE


Sec. 1 Scope

This Chapter codifies Tribal customs pertaining to marriage and divorce.


Sec. 2 Validity of Indian Custom Marriages

Marriages according to Indian customs are valid.


Sec. 3 Certificates of Indian Customs Marriage

Procedure: The Court or the Chairperson shall require affidavits from three persons who know the couple before issuing a Certificate of Indian Customs Marriage. The affidavits must state the names of the couple, the affiant, the length of time the affiant has known the couple, and the length of time the affiant has known the couple to be living together as husband and wife. If the affidavits establish that the requirements of Chapter A, Section 3 have been met, the Tribal Judge or the Chairperson shall issue a Certificate of Indian Customs Marriage to the couple and shall file a copy of the certificate with the Western Nevada Agency of the Bureau of Indian Affairs and with the county recorder.


C. RIGHTS OF HUSBAND AND WIFE


Sec. 1 Scope

This Chapter establishes the property rights of each party to a marriage.


Sec. 2 Community Property

a. Defined - All property acquired after the marriage by either the husband, the wife, or both while they are living together as husband and wife, is community property with the exception of property described in Section 3 of this Chapter.

b. Rights in Community Property:

(1) The husband and the wife have present, existing, and equal interests in all community property.

(2) The husband and the wife have an equal right to manage community property.


Sec. 3
Separate Property

a. Defined - All property owned by either the husband or the wife before marriage, or acquired afterwards by gift, by will, or through the laws of inheritance of any jurisdiction, together with the rents, interest, or profits therefrom, is the separate property of the owner.

b. Rights in Separate Property - The owner has exclusive control and management of his or her separate property.


Sec. 4
Community Debts

a. Defined - Community debts are those debts jointly undertaken by the husband and wife, debts incurred in the purchase of community property, and debts incurred in the support of the husband and/or wife and/or their children, while the husband and wife are living together.

b. Responsibility for Community Debts - The husband and wife are jointly and equally responsible for community debts.


Sec. 5
Separate Debts

a. Defined - All debts undertaken by the husband or the wife, individually, except for any debts described above, are separate debts.

b. Responsibility for Separate Debts - The Court shall not require the separate property of one spouse to pay the debts of the other spouse, unless the owner of the separate property agreed, in writing, that his or her separate property may be used to pay for the debts of his or her spouse.


D. VOID MARRIAGE


Sec. 1
Definition

A void marriage is a marriage which is not valid for any legal purpose. A void marriage does not create any property rights or obligations, other than to support any children that may be born of the void marriage.


Sec. 2 Marriages Which are Void

a. Bigamous and incestuous marriages are void.

b. Definitions:

(1) A bigamous marriage is one that is entered into by any person who is already married, i.e. - the person's prior marriage has not been annulled or dissolved, and the prior spouse is still alive.

(2) A incestuous marriage is one between a parent and a child, or a brother and sister of the whole or half blood, or an uncle and niece or aunt and nephew of the whole or half blood, or between first cousins.


Sec 3
Form of Petition

a. Required Contents of Petition - A petition requesting the Court to declare a marriage void shall be verified and shall state:

(1) The names, ages and residences of the parties to the marriage.

(2) The date and place of the marriage.

(3) An allegation as to the Court's jurisdiction.

(4) The reason the marriage should be declared void.

b. Additional Contents - The petition may include:

(1) Requests for the division of property and debts.

(2) Requests as to the division of property and debts.

(3) Child support and custody requests.

(4) Allegations for damages.

c. Petitions Must be Signed - the petition must be signed by one or both of the parties to the marriage.


Sec. 4 Children of Void Marriage

a. Support Obligations - Parties to a void marriage have the same obligations to support the children as if the marriage were valid.

b. Custody - The standards set forth in this Title should be followed to determine custody and/or support of any children.

c. Legitimacy - Children of a void marriage are legitimate for all purposes.


E. ANNULMENT


Sec. 1 Reasons for Annulment of a Marriage

a. The Court may grant an annulment of a marriage for the following reasons:

(1) Lack of ability to consent because of age.

(2) Lack of ability to consent because of mental disease or defect.

(3) Lack of ability to consent because of serious mental impairment due to the use of drugs or alcohol.

(4) Force or fraud in obtaining consent to the marriage.


Sec. 2
Jurisdiction of the Tribal Court

a. The Tribal Court has jurisdiction to annul any marriage which was entered within the territory of the Tribe.

b. The Tribal Court has jurisdiction to annul any marriage which was not entered into on this Reservation if either of the parties to the marriage have resided within the territory of the Tribe for at least six weeks immediately preceding the filing of the complaint.


Sec. 3
Commencement of Annulment Actions

a. An action to obtain an annulment must be commenced within the following time periods and by the following persons:

(1) For cause described above by the underage party before reaching the age of 18 years, or by the parent or guardian of the underage party before the party reaches 18 years of age.

(2) For cause described above by the party not freely consenting or within two months of the marriage.


Sec. 4
Procedure

a. A complaint requesting that a marriage be annulled shall be filed with the Clerk. It must conform to the requirements set forth.

b. A summons shall be issued and served in accordance with Civil Procedure on any party to the marriage not joining in the complaint

c. The Court shall hold a hearing whether or not the matter is contested.

d. If the Court is satisfied that the evidence indicates that it is more likely than not that the allegations in the complaint are true and is satisfied as to the Court's jurisdiction, the annulment shall be granted.

e. Any orders as to child custody and/or support shall be in compliance with this Title.

f. Any order for damages shall be in accordance with this Title.

g. Any order as to property and debts shall be in accordance with the standards set forth.

h. The Court shall restore the wife's former name.


Sec. 5
Form of Complaint

a. The complaint shall be verified and shall contain the following, where applicable:

(1) The names of the parties to the marriage.

(2) The date of the marriage.

(3) The place of the marriage.

(4) Whether there are any minor children.

(5) The reason for the requested annulment

(6) An allegation as to the Tribal Court's jurisdiction.

(7) If the person filing the complaint is not one of the parties to the marriage, the relationship of that person to the parties.


Sec. 6 Effect of an Order of Annulment

a. After an annulment order, the parties are restored to the status of single and unmarried person.

b. children of an annulled marriage are legitimate for all purposes.


Sec. 7
Alimony not Awarded

Neither party to an annulled marriage shall be required to pay alimony.


Sec. 8 Damages

Any person who is damaged because of a marriage that is subsequently annulled, may receive such damages as can be proven.


Sec. 9 Filing of Annulment Order

The Order of Annulment shall be filed in the Tribal Court Clerk's Office. The Tribal Court Clerk shall file a copy with the county recorder.


F. DISSOLUTION OF MARRIAGE


Sec. 1 Reason for Dissolution

A dissolution of marriage may be granted if either party of the marriage is incompatible.


Sec. 2
Jurisdiction of the Tribal Court

a. Either of the parties to the marriage has resided on this Reservation for at least six weeks prior to the filing of the complaint.

b. This Reservation was the last place that the parties lived together as husband and wife.

c. This Reservation was the place where the marriage took place.

d. Either party of the marriage is a Tribal member.


Sec. 3
Procedure

a. A complaint requesting a dissolution shall be filed with the Clerk. It must conform to the requirements in Section 4, of this Chapter.

b. A summons shall be issued and served in accordance with Civil Procedure on the other party to the marriage.

c. The Court shall hold a hearing whether or not the matter is contested.

d. The dissolution shall be granted if the Court is satisfied that it has jurisdiction, and if the complaint substantially satisfies the requirement below.

e. Any order as to child support or custody shall be in accordance with this Title.

f. Any order as to property or debts shall be in accordance with this Title.

g. The Court shall restore the wife's former name if requested to do so by the wife or her representative.


Sec. 4 Form of Complaint

a. Required Contents - A complaint for dissolution of marriage shall be verified and shall contain:

(1) The names of the parties to the marriage.

(2) The date of the marriage.

(3) The place of the marriage.

(4) Whether there are any minor children.

(5) An allegation of the Court's jurisdiction.

(6) An allegation of the incompatibility in the marriage.

b. Additional Contents - The complaint may contain:

(1) A description of any property or debts to be divided by the Court.

(2) Any requests as to child custody and/or support.

(3) Any requests for alimony.

(4) A request that the wife's former name to be restored.


Sec. 5 Alimony

Alimony may be awarded to either party as part of the order granting the dissolution.


Sec. 6 Division of Property and Debts

a. All separate property remains the property of the owner.

b. Ordinarily, community debts shall be divided so that each party is responsible for an equal share.


G. CUSTODY AND SUPPORT OF CHILDREN


Sec. 1 Support Obligations

a. Nature of Obligation - Both parents of a child have a continuing obligation to support their child until the child is 18 years of age This obligation is not affected by the parent's remarriage, and is not affected by any award of custody of the child.

b. Determination of Obligation - The Court shall consider the amount of support which is reasonably necessary, and the financial resources of each parent. The Court shall then require each parent to pay a just and reasonable amount for the support of the child.


Sec. 2
Modification of Support and Custody Orders

Child support and custody orders are modifiable due to changed circumstances upon petition to the Court according to the procedures set out in this Title.


Sec. 3
Enforcement of Support Orders

The Court may use its contempt power to enforce a support order.


H. DETERMINATION OF PARENTHOOD


Sec. 1
Purpose and Applicability

a. The purpose of this Chapter is to establish the relationship of parent and child.

b. An action under this Chapter may be joined with a proceeding for custody and/or support under this Title.


Sec. 2
Proper Parties to Bring Action

a. The following persons may bring an action under this Chapter.

(1) The child.

(2) Either parent or legal guardian.


Sec. 3 Procedure

a. A petition alleging parenthood shall be filed with the Clerk. It must conform to the requirements set forth.

b. A summons shall be issued and served on any parent who does not join in the Petition in accordance with Civil Procedure.

c. A hearing shall be held whether or not the matter is contested.

d. The Court shall issue a decree of parenthood if a preponderance of the evidence indicates that a parental relationship exists.


Sec. 4 Form of Petition

a. The petition shall be verified and contain the following:

(1) The name, age, place of birth and residence of the child.

(2) The name, age, place of birth and residence of the alleged parent.

(3) The name, age, residence and relationship of the child to the person bringing the petition.

(4) A short statement of the facts on which the allegation of parenthood is based.


I. ADOPTION OF MINOR CHILDREN


Sec. 1 Scope

This Chapter sets forth the procedures for establishing the relationship of parent and child, between a child and an adult other than a natural parent of the child.


Sec. 2
Procedure

a. A petition requesting an adoption shall be filed with the Clerk.

b. A summons shall be issued and served in accordance with Civil Procedure on the natural parents, the grandparents, any person with whom the child resides and any other interested person(s), unless they have signed affidavits of consent.

c. A hearing shall be held whether or not the matter is contested.

d. A hearing shall be held in closed Court.


Sec. 3
Form of Petition

a. The petition shall be verified and shall contain:

(1) The name, age, date and place of birth of the child, if known, with documentary proof if possible.

(2) The name(s) and age(s) of the person(s) seeking to adopt.

(3) The name(s) and address(es) of the natural parents, if known.

(4) Any affidavits of consent as required below.

(5) A statement of any real or personal property owned by the child.

(6) A request that the relationship of parent and child be established.

(7) A statement describing the home environment of the petitioner(s).


Sec. 4
Affidavit of Consent

a. The consent(s), by affidavit, of the following person(s) are required when applicable:

(1) of the child if he or she is 14 years of age or over.

(2) Of each of the natural parents, unless their parental rights have been judicially terminated.

(3) of the spouse of the adopting party, unless the spouse joins in the petition.

b. Any consent obtained prior to the birth of the child or for two weeks thereafter is void.


Sec. 5
Temporary Decrees of Adoption

a. If the Court feels that the best interest of the child would be served, it may issue a temporary decree of adoption.

b. Such decree is valid for six months, at which time another hearing must be held and a permanent decree granted or denied.


Sec. 6
Effect of Entry of Decree

a. Establishment of the Relationship of Parent and Child - A temporary or permanent decree of adoption establishes the relationship of parent and child between the parties.

b. Inheritance Rights - After the entry of a permanent decree of adoption, the adopted child inherits from and through the adoptive parent(s) and the adoptive parent(s) inherit from and through the adopted child. The adopted child does not inherit from and through the natural parent(s) and the natural parent(s) do no inherit from or through the adopted child.


Sec. 7
Report of Adoption, Amendment or Annulment of Adoption to State Registrar

a. After an order or decree of adoption has been entered, the Court shall direct the petitioner or his representative to prepare a report of adoption on a form prescribed and furnished by the State Registrar of Vital Statistics. The report shall:

(1) Identify the original certificate of birth of the person adopted.

(2) Provide sufficient information to prepare a new certificate of birth for the person adopted.

(3) Identify the order or decree of adoption.

(4) Be certified by the Court Clerk.


Sec. 8 Right to Tribal Membership

Adoption shall not destroy any rights that a child has to enroll as a Tribal member due to the blood inherited from his natural parents.


J. ADOPTION OF ADULTS


Sec. 1
Scope

This Chapter sets forth the procedures for establishing the relationship of parent and child, between persons 18 years of age or older.


Sec. 2 Procedure

a. A petition requesting an adoption shall be filed with the Clerk.

b. Notice shall be given to the natural parents.

c. The Court shall hold a hearing and shall issue the decree of adoption, unless it finds that one of the parties does not understand the effect of adoption, or if there is evidence of lack of consent.


Sec. 3
Form of Petition

a. The petition shall be verified and shall state:

(1) The name, age and residence of the person to be adopted.

(2) The name(s), age(s) and residence of the person(s) wishing to adopt.

(3) A request that the relationship of parent and child be established.


Sec. 4 Effect of Entry of Decree

a. Establishment of the Relationship of Parent and Child - A decree of adoption establishes the relationship of parent and child between the parties.

b. Inheritance Rights - Adopted adults inherit from and through their adoptive parent(s) and the parent(s) inherit from and through the adopted adult. Adopted adults do not inherit from or through their natural parent(s) and the natural parent(s) do not inherit from or through the adopted child.


Sec. 5
Filing of Decrees

All decrees obtained pursuant to this Chapter shall be filed with the Tribal Court Clerk. The Tribal Court Clerk shall file a copy with the county recorder.


K. GUARDIANSHIP


Sec. 1
Scope

This Chapter establishes the procedure for the appointment of guardians for minor persons or for adults who are unable to manage their property and business affairs and/or physically care for themselves.


Sec. 2 Commencement of the Action

Any person may file a petition for a guardianship, including the person to be placed under the guardianship.


Sec. 3 Procedure

a. A petition requesting a guardianship shall be filed with the Tribal Court Clerk.

b. If the proposed ward is an adult, a summons shall be issued and served in accordance with Civil Procedure on all persons who would be interested heirs of the proposed ward.

c. If the proposed ward is a child, a summons shall be issued and served in accordance with Civil Procedure, on the natural parents unless they join in the petition.

d. The Court shall hold a hearing whether or not the matter is contested.


Sec. 4
Form of Petition

a. The petition shall be verified and shall state:

(1) The name, age and residence of the proposed ward.

(2) Whether the proposed guardianship is of the property and business affairs and/or of the physical care of the proposed ward and the reason therefore.

(3) The name, age and relationship to the proposed ward of the person filing the petition.

(4) The name of the proposed guardian and the relationship of the proposed ward to the the proposed guardian.

(5) A description of the proposed ward's income and property.


Sec. 5
Selection and Approval of Guardians

The Court shall appoint a guardian only after the hearing. The Court may approve the guardian suggested by the petition, or may appoint any other person, as the best interests of the ward require. Wards 14 years of age and older may suggest their own guardian.


Sec. 6
Review of Guardianships

All guardians shall be reviewed by the Court at least once every 12 months as to the continued necessity and as to the suitability of the guardian unless the Court determines that a longer period of time is satisfactory. The Tribal Court Clerk shall keep a calendar on which the review dates shall be entered. The guardian, ward, and other interested parties shall receive at least two weeks notice of any review.


Sec. 7
Temporary Guardianship

a. Defined - A temporary guardianship over either the business affairs or the physical care of a person may be granted, on petition, but without notice or hearing for up to three months. All aspects of a temporary guardianship are the same as for a permanent one, except no petition is required for termination.

b. Procedure - The petition must be accompanied by a written consent from the natural parent(s) if the proposed ward is a child, or a written consent from the proposed ward if the ward is an adult.

c. Conversion into Permanent Guardianships - A new petition must be filed to change a temporary guardianship into a permanent one, and a full hearing must be held.

d. Temporary Guardianships Over Minors - Notwithstanding any other provision, a temporary guardianship over the physical care of a minor may be granted by the person having care, custody and control of the minor for a period of up to six months, without a petition to the Court. Such guardianship must be in writing, signed by the person granting it, specifying the period for which it is to exist, and must state that it is only over the physical care of the minor. If there are two people who have care, custody and control of the minor, they must both sign the guardianship.


Sec. 8
Filing of Guardianships

All Court Orders as to guardianships and all other guardianship documents must be filed with the Tribal court Clerk and must be served on the guardian, ward, and other interested parties.


L. DOMESTIC VIOLENCE


Sec. 1 Definition

a. Domestic violence is defined by the relationship of the victim to the offender and not only by the conduct involved. Domestic violence occurs when an Indian commits one of the acts, described below, against a current or former household member, individuals related by blood, his/her minor child, elder parent, the child of one of the persons describe above, sexual or intimate partners (including homosexual partners), or against any dating relationship partner:

(1) A battery.

(2) An assault.

(3) Compelling the other by force or threat of force to perform an act from which he has the right to refrain or to refrain from an act he has the right to perform.

(4) A sexual assault.

(5) A knowing, purposeful or reckless course of conduct intended to harass the other. Such conduct may include, but is not limited to:

(a) Stalking

(b) Arson

(c) Trespassing

(d) Larceny

(e) Destruction of private property

(6) A false imprisonment.

(7) Unlawful entry into the other's residence, or forcible entry against the other's will if there is a reasonably foreseeable risk of harm to the other from the entry.

b. Non-Indians committing an act of domestic violence within the boundaries of the Yomba Shoshone Reservation are subject to prosecution pursuant to Nevada Revised Statutes.


Sec. 2
Domestic Violence; When Arrest Required; Report Required

a. Except as otherwise provided in Subsection "b", whether or not a warrant has been issued, a peace office shall, unless mitigating circumstances exist, arrest a person when he has probable cause to believe that the person to be arrested has, within the preceding 24 hours committed an assault, battery or any crime listed in Section 1, of this Chapter, upon his/her spouse, a person to whom he/she is related by blood, a person with whom he/she is or was actually residing or with whom he has a child in common, his minor child or a minor child of that person, or any person described in Section 1, above.

b. If the peace officer has probable cause to believe that a battery or other crime described in Subsection "a", of this Section, was mutual, he shall attempt to determine which person was the primary physical aggressor and arrest that person. If the peace officer is unable to determine who the primary physical aggressor was, the peace officer is not required to arrest any person involved in the incident. In determining whether a person is a primary physical aggressor for the purpose of this Subsection, the peace officer shall consider:

(1) Prior domestic violence involving either person.

(2) The relative severity of injuries inflicted upon the persons involved.

(3) The potential for future injury.

(4) Whether one of the alleged batteries was committed in self-defense.

(5) Any of factor, which helps the peace officer decide which person was the primary physical aggressor.

c. A peace officer shall not base his decision whether to arrest a person, pursuant to this Section, on his perception of the willingness of a victim or a witness to the incident to testify or otherwise participate in related judicial proceedings. The decision shall be based on whether any evidence is present of a crime having been committed , however slight.

d. When a peace officer investigates such battery or other crime, whether or not any arrest is made, he shall prepare and submit a written report of the alleged battery or other crime to his supervisor or other person designated by his employer to receive reports regarding similar allegations. He shall include in his report, if applicable, his reasons for determining that one of the persons involved in a mutual battery was the primary physical aggressor.


Sec. 3 Mandatory Provisions

a. All persons arrested under this Chapter, shall be held in custody for a period of 24 hours, before being allowed release on bail or any other condition, unless specifically ordered otherwise by the Tribal Judge.

b. Any person who commits a second domestic violence offense shall be held without bail, unless specifically ordered otherwise by the Tribal Judge.


Sec. 4
Punishment

a. All person found guilty of a Violation of this Chapter, shall be punished as a Class A offense with the addition of the following:

(1) A first offense shall be punished with a mandatory minimum sentence of 10 days incarceration, not subject to probation or suspension. In addition, the Court may impose a minimum of 50 hours to a maximum of 100 hours of community service under the supervision of Tribal law enforcement.

(2) A second offense within two years shall be punished by a mandatory incarceration of 180 days not subject to probation or suspension. In addition, the Court may impose a minimum of 100 hours to a maximum of 200 hours of community service under the supervision of Tribal law enforcement.

(3) A third or subsequent offense within two years, shall be punished with a mandatory incarceration for a minimum of one year, not subject to probation or suspension of sentence.

(4) A person found guilty may also be ordered by the Tribal Judge to undergo an anger management treatment program as prescribed by Indian Health Services.

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