Statutes of the Pit River Tribe of California

Title 8. Family/Children's Code
Chapter 4. Annulment, Divorce, Child Custody

Title 8. Family/Children's Code, Chapter 4. Annulment and Divorce; Child Custody Proceedings

Article I - General Provisions
Article II - Annulment
Article III - Divorce
Article IV - Spousal Maintenance and Property Rights
Article V - Child Custody Proceedings
Article VI - Paternity Proceedings
Article VII - Visitation Rights
Article VIII - Miscellaneous

ARTICLE I. GENERAL PROVISIONS

SECTION 101. JURISDICTION OVER ANNULMENT AND DIVORCE CASES

(A) The Court shall have jurisdiction over annulment, divorce and any paternity, child custody, division of property, child support or spousal support decree pursuant to such annulment or divorce, where at least one party to the marriage is an Indian, and at least one party has been a bona fide resident within the boundaries of the Pit River Tribe for a period of 90 days immediately preceding the filing of the action.

(B) Whenever the requirements of subsection (A) are met and one party to the action is absent or resides outside of the exterior boundaries of the Pit River Tribe, or that person's whereabouts are not known, the Judge may make an order of notice as he deems reasonable. After the notice has been given and proved to the Court, the Court may hear the complaint if it finds that the absent party has received actual notice that the complaint is pending. If it appears that the absent party has not received or has refused to accept such notice, the Court may hear the case; provided that if it finds cause, the Court may order such further notice to be given as it deems reasonable and continue the complaint until the order is complied with.

ARTICLE II. ANNULMENT

SECTION 201. CAUSES FOR ANNULMENT

A marriage maybe annulled for any of the following causes existing at the time of marriage:

(A) That the party in whose behalf it is sought to have the marriage annulled, was under the age of 18 years, and such marriage was contracted without the consent of his or her parents or guardian, or persons having charge of him or her, unless, after attaining the age of consent, such party freely cohabits with the other as husband and wife;

(B) That the former husband or wife of either party was living, and the marriage with such former husband or wife was then in force;

(C) That either party was of unsound mind, unless such party, after coming into reason, freely cohabited with the other as husband or wife;

(D) That the consent of either party was obtained by fraud, unless such party afterward, with full knowledge of the facts constituting the fraud; freely cohabited with the other as husband or wife;

(E) That the consent of either party was obtained by force, unless such party afterwards freely cohabited with the other as husband or wife;

(F) Impotence which continues and appears to be incurable.

SECTION 202. ACTION TO ANNUL - PARTIES AND LIMITATIONS

An action to obtain a decree of annulment of a marriage for causes mentioned in the preceding section, must be commenced within the periods and by the parties as follows:

(A) For causes mentioned in Section 201(A), by the party to marriage who was married under the age of legal consent, within two years after arriving at the age of consent, or by a parent, guardian or other person having charge of such minor, at any time before such married minor has attained the age of legal consent.

(B) For causes mentioned in Section 201(B) by either party during the life of the other or by the former husband or wife;

(C) For causes mentioned in Section 201(C) by the party injured, or relative or guardian of the party of unsound mind, at any time before the death of either party;

(D) For causes mentioned in Section 201(D) by the party injured, within two years after the discovery of the facts constituting a fraud;

(E) For causes mentioned in Section 201(E) by the injured party within four years after the marriage;

(F) For causes mentioned in Section 201(F) by the injured party within two years after the marriage.

SECTION 203. DECREE OF ANNULMENT

(A) Where one party to the marriage is a minor when the petition is filed, the annulment, the Court shall enter a decree of annulment.

(B) The decree shall state the grounds for annulment, must make necessary determinations concerning division of property and child custody, and shall be signed by the presiding judge.

(C) A copy of the decree shall be delivered to each of the parties, and the original retained for the records of the Court.

(D) In extraordinary circumstances and for good cause shown, an annulment granted where the non-petitioning spouse did not respond may be set aside by order of the Court.

SECTION 204. LEGITIMACY OF CHILDREN

When a marriage is annulled for any reason, other than for fraud in that the wife is pregnant with a child from a man other than the husband, children begotten before judgment are legitimate and succeed to the estate of both parents. The Court may at the time of granting the annulment or at any future time, make necessary orders for the custody and support of said child or children as the circumstances of the parents may require.

SECTION 205. CONCLUSIVENESS OF JUDGMENT OF ANNULMENT

Annulment voids a marriage from the time of the marriage forward, except that any children born to the parties during the marriage are legitimate.

ARTICLE III. DIVORCE

SECTION 301. DIVORCE AND ANNULMENT PROCEDURE

(A) Proceedings in divorce and annulment shall be commenced and conducted in the manner provided by law for civil cases, except as otherwise specifically provided. A final decree of divorce shall restore the parties to the status of unmarried persons.

(B) No decree of divorce shall be granted upon default or otherwise, except upon legal evidence taken in the cause by the Court who shall make and file its findings and decree upon the evidence.

SECTION 302. GROUNDS FOR DIVORCE

The following shall be separately and severally grounds for divorce in the tribal court:

(A) ADULTERY - The adulterous act must have been committed after the marriage and before a decree of divorce has been entered. Confessions of adultery to the opposite spouse are admissible but a decree may not be based on such confession alone but must be supported by corroborating evidence. Adultery may be proved by circumstantial evidence, but the circumstances must be such as would lead the guarded discretion of a reasonable and just man to conclude the act of adultery was committed. Adultery may not be used as grounds for divorce in a decree where both parties are guilty of adultery, where the adultery was committed with the consent of the other spouse, where the complaining spouse has condoned the adultery by voluntarily resuming sexual relations with the offending spouse after knowledge of the adultery, or when one spouse connived at the adultery of the other spouse.

(B) ABANDONMENT - Abandonment shall be grounds for a divorce when one spouse has voluntarily abandoned the bed and board of the other for a period of one (1) year prior to the filing of the divorce petition to constitute voluntary abandonment there must be a final departure:

(1) Without the consent of the other spouse.

(2) Without sufficient reason therefore.

(3) Without the intention to return.

A divorce on the grounds of abandonment may not be obtained where the complaining party is guilty of misconduct causing a separation, nor where the complaining party consents to the separation or the separation is with the mutual consent of the parties, unless the consent of the complaining party is induced by the misconduct of the other spouse.

(C) PENITENTIARY SENTENCE - If either spouse has been imprisoned in the penitentiary of this or any other state or the United States Government for two (2) years under a sentence for seven (7) years or longer, the other is entitled to a divorce. The sentencing must occur after the marriage for this ground to be valid.

(D) HABITUAL DRUNKENNESS OR ADDITION TO DRUGS - It shall be grounds for divorce when a spouse becomes addicted after marriage to habitual drunkenness or to habitual use of controlled substances or narcotic drugs. Habitual drunkenness is the fixed habit of frequently getting drunk.

(E) INCOMPATIBILITY - It shall be a ground for divorce of either party when the court is satisfied from all the testimony in the case that there exists such a complete incompatibility of temperament that the parties can no longer live together as man and wife. Incompatibility refers to conflicts in personalities and dispositions so deed as to be irreconcilable and to render it impossible for the parties to continue a normal marital relationship with each other.

(F) MENTAL DEFECT - Either spouse may obtain a divorce on the grounds of mental defect when, after the marriage, the other spouse has been confined in a mental institution for a period of five (5) successive years and is hopelessly and incurably mentally defective at the time of the filing of the divorce petition.

(G) IRRETRIEVABLE BREAKDOWN OF THE MARRIAGE - Divorce may be granted upon application of either party when the court finds that there has been an irretrievable breakdown of the marriage and that further attempts at reconciliation are impractical and futile and not in the best interest of the parties or family.

(H) CRUELTY - It shall be grounds for divorce and a divorce may be granted in favor of either party when the other has committed actual violence on his or her spouse's person, attended with danger to life or health, or when from such conduct there is reasonable apprehension of such violence. A divorce on the ground of cruelty is justified only when physical violence endangering the life or health of the petitioner has occurred or is reasonably apprehended from the defendant's conduct. Actual violence is not required when there has been any conduct on the part of the defendant which furnishes a reasonable apprehension that continued cohabitation would be attended with physical violence endangering the life or health.

SECTION 303. LIMITATIONS OF DIVORCE

A divorce must be denied:

(A) When the cause is adultery and the action is not commenced within one year after its discovery by the injured party;

(B) When the cause is conviction of an offense and the action is not commenced before the expiration of one year after a pardon or the termination of the period of sentence; or

(C) In all cases when there is unreasonable lapse of time before the commencement of the action, or two years have passed since the grounds became or should have become known to the complaining party.

SECTION 304. RIGHT OF HUSBAND TO DIVORCE

The husband may in all cases obtain a divorce from his wife for the same causes and in the same manner the wife may obtain a divorce from her husband.

SECTION 305. DIVORCE PROCEDURE

(A) Either party to marriage may file a petition for a divorce upon paying court costs and the filing of a verified petition setting out the following:

(1) The jurisdiction of the Tribal Court over the parties;

(2) The name, age, occupation and residence of the parties and number of children if any born to the marriage;

(3) The date of marriage and the place in which the same occurred;

(4) The grounds upon which the divorce is sought;

(5) All relief sought with respect to the disposition of property, custody of children, and child support.

(B) Upon the filing of a petition with the court the defendant in the proceeding shall respond pursuant to the Rules of Civil Procedure of the Tribal Court and the cause shall be set for a hearing not less than sixty (60) days from the date of the filing of the petition.

SECTION 306. TEMPORARY RELIEF

(A) The Court may issue temporary orders during the pendency of an annulment or divorce proceeding as to child custody or maintenance. Such orders may be granted upon motion of either party, or on the Court's own motion. A hearing for which advance notice shall be provided to the parties shall be held prior to the issuance of such temporary orders, unless the court determines that an emergency assists or a party cannot be found, in which case such order may be issued ex parte. If an order is issued ex parte, a hearing shall be held as soon as practicable after the nonmoving party is notified.

(B) As a part of a motion for temporary maintenance or support or by independent motion accompanied by affidavit, either party may request the Court to issue a temporary injunction for any of the following relief:

(1) Restraining any person from transferring, encumbering, concealing, or otherwise disposing of any property except in the usual course of business or for the necessities of life, and, if so restrained, requiring him or her to notify the moving party of any proposed extraordinary expenditures made after the order is issued.

(2) Enjoining a party from harassing or disturbing the peace of the other party or of any child;

(3) Excluding a party from the family home or from the home of the other party upon a showing that physical or emotional harm would otherwise result;

(4) Enjoining a party from removing a child from the jurisdiction of the Court; and

(5) Providing other injunctive relief proper in the circumstances.

(C) A hearing for which advance notice shall be provided to the parties shall be held prior to the issuance of such temporary orders, unless the court determines that an emergency exists or a party cannot be found, in which case such order may be issued ex parte. If an order is issued ex parte, a hearing shall be held as soon as practicable after the nonmoving party if notified.

(D) A temporary order or temporary injunction:

(1) Does not prejudice the rights of the parties or the child which are to be adjudicated at subsequent hearings in the proceedings;

(2) May be revoked or modified before final decree on a showing by affidavit of the facts necessary to revoke or modify a final decree.

(3) Terminates when the final decree is entered or when the petition for divorce is voluntarily dismissed.

SECTION 307. SUPPORT AND USE OF FAMILY HOME PENDING DECREE

During the pendency of any complaint or petition under this Ordinance, and after a hearing duly held, the Court may award spousal support and child support to either party from the date of filing an application thereof with the Court. In determining the award, the Court shall consider the factors enumerated throughout this Chapter. The Court also may award exclusive use of the family home to either of the parties, provided that a non-tribal member spouse may be awarded use of Tribal housing only when such party also has been given custody of any minor tribal member children during their minority, and provided further that such use shall be in accordance with Tribal Housing Authority's policies and regulations.

SECTION 308. MODIFICATION OF DIVORCE DECREE

Upon application of either party the court may modify final decrees of divorce previously entered upon a showing of changed circumstances or upon the consent of both parties.

SECTION 309. BEST INTEREST RULE

(A) Any temporary order, final decree of divorce or any modification of a decree of divorce shall set forth specific findings as to how and why the temporary order, divorce decree or modification thereof is in the best interest of any children born to the marriage of the parties.

(B) Petition. One or both parties may file a petition with the Court, sworn before a notary public or other official designated to verify signatures. The petition shall state the grounds for divorce and the facts and circumstances substantiating those grounds.

(C) Service of process. The defendant in a divorce proceeding shall be served with a copy of the complaint as provided under the Rules of Civil Procedure.

(D) Response. The non-petitioning spouse may file a response to the petition within twenty (20) days of receipt of the petition. Such response may state the background facts and circumstances which show that there are no valid grounds for divorce, or may seek a division or custody of children different from any proposed by the petition.

(E) Hearing.

(1) In all divorce cases, the Court shall order and hold a hearing. Where the custody of children is an issue in the case, the Court may order a home study by an appropriate social worker or other professional, to be completed and submitted to the Court prior to the hearing. The purpose of the home study shall be to assist the court in determining the custody issue.

(2) At the hearing, both spouses shall have an opportunity to testify, cross-examine the other spouse and any witnesses, call and question other witnesses, and present documentary evidence. Each spouse may retain counsel or be otherwise represented in the proceeding. The hearing shall be closed to the public unless both spouses agree otherwise. At the request of either party the Court shall, or upon its own motion may, adjourn the hearing and order a reconciliation conference. The Court shall reconvene the hearing within a reasonable time after the conference unless the parties have agreed that the divorce action should be terminated.

(F) Filing Fees. A fee as set by the Court shall be paid at the time any action for divorce under this code is filed, provided, that upon showing satisfactory to the Court that the petitioner is indigent, the Court shall waive all or so much of the filing fee as may be appropriate in the circumstances, keeping in mind that no person shall be barred from the Court because of lack of funds for filing.

SECTION 310. CUSTODY OF CHILDREN IN CASE OF SEPARATION

(A) In any case of separation of husband and wife having minor children, or whenever a marriage is declared void or dissolved, the court shall make such order for the future care and custody of the minor children as it may deem just and proper.

(B) In determining custody, the court shall consider the best interest of the child and the past conduct and demonstrated predictions of each of the parties and the natural presumption that the mother is best suited to care for young children.

(C) The court may inquire of the children and take into consideration the children's desires regarding the future custody; however such expressed desires shall not be controlling and the court may nevertheless determine the children's custody otherwise.

ARTICLE IV. SPOUSAL MAINTENANCE AND PROPERTY RIGHTS

SECTION 401. DISPOSITION OF PROPERTY AND CHILDREN

(A) When a decree of divorce or annulment is made the court shall make such orders in relation to the children, property and parties, and the maintenance of the parties and children by spousal support and child support as it deems just and proper.

(B) With respect to trust property, the Court shall have the authority to make appropriate orders to distribute such property acquired together, but shall have no authority to order that any property or interest in property be removed from trust status, or to make any order that would result in such removal.

(C) Subsequent changes or new orders may be made by the court with respect to the custody of the children or the distribution of property as shall be reasonable and proper upon notice of hearing.

SECTION 402. SPOUSAL MAINTENANCE

(A) A person living within the exterior boundaries of the Pit River Tribe, who through no fault of his or her own or by agreement with his or her spouse, is living separate and apart from such spouse where such spouse has failed to support him or her when otherwise able to so, may maintain an action for a decree of separate maintenance.

(B) During the pendency of the action, the Court may order the spouse to pay temporary spousal support and suit money as in an action for divorce upon notice and hearing.

(C) If it appears that the person is entitled to such, the Court shall grant a decree of separate maintenance awarding custody of children, spousal support, child support and expenses of suit as may be equitable under the circumstances.

(D) In determining whether spousal support shall be awarded, and the duration and amount of the award, the Court shall hear the evidence and witnesses, if any, of each party, and, except as provided in any approved stipulation, shall consider the following factors: the length of the marriage; the age, health, situation, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties; and the award, if any, which the Court may make pursuant to this Chapter; the Tribal interests, if any, in the source of income; and in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent's securing employment.

(E) Such orders may be modified at any time, on motion of either party, to reflect changes in either party's economic circumstances. Upon motion, the Court shall terminate maintenance to any spouse who has remarried.

SECTION 403. PROPERTY RIGHTS OF MARRIED PERSONS

(A) Either a wife or a husband can obtain, own, hold, give, sell or otherwise deal with real property as if they were unmarried.

(B) Both wives and husbands can enter into contracts and sue or be sued to the same extent and in the same manner as if unmarried.

(C) Neither a wife nor a husband nor the property of either in which their spouse has no interest is liable for the debts or obligations of the other spouse solely by reason of marriage to the other spouse.

(D) A conveyance, transfer, or lien executed by either husband or wife in favor of the other shall be valid to the same extent as between other persons.

SECTION 404. FAMILY EXPENSES

The expenses of the family and the education of the children are chargeable upon the property of both husband and wife or either of them, and they may be enforced jointly or separately.

SECTION 405. ASSIGNMENT OF PROPERTY

(A) At the time of entering a decree dissolving or annulling a marriage, the Court may assign to either party all or any part of the estate of the other. The Court may require that title to any non-trust real property pass to either party or may order the sale of such non-trust real property when, in the Court's judgment, it is the proper mode to carry the decree into effect.

(B) In determining the nature and value of the property, if any, to be assigned, the Court, after hearing the evidence and witnesses, shall consider the following factors: the length of the marriage; the age, health, situation, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties; the opportunity of each for future acquisition of capital assets and income; and the tribal interests, if any, in such property. The Court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.

ARTICLE V. CHILD CUSTODY PROCEEDINGS

SECTION 501. PARENTS OBLIGATION FOR SUPPORT OF MINOR CHILD

(A) Upon or subsequent to entering the decree dissolving or annulling a marriage, the Court may order the parents of a minor child of the marriage to financially support the child according to their respective abilities, if the child is in need of such financial support.

(B) In determining whether a child is in need of financial support, and if in need, the respective abilities of the parents to provide such support and the amount and duration thereof, the Court shall consider the following factors: the age, health, situation, earning capacity, amount and sources of income, estate, vocational skills, employability of each of the parents; the age, health, occupation, educational status and expectation, amount and sources of income, vocational skills, employability, estate and needs of the child; and any tribal interests in or benefits available to either of the parents or minor child, including, but not limited to, health care and education.

(C) In making its determination of financial support for a minor child, the Court shall be guided by the State of California's Child Support and Arrearage Guidelines. If the Court deviates from the Child Support and Arrearage Guidelines, the Court shall make a specific finding on the record that the application of the Guidelines would be inequitable or inappropriate.

(D) The Court shall make and enforce the decree for the financial support of the child as it considers just. The Court may order either parent to name any child under eighteen as a beneficiary of any medical or dental or benefit plan carried by such parent or available to such parent on a group basis through employment.

(E) Whenever an obligor is before the Court in proceedings to establish, modify, or enforce a support order, and such order is not secured by a wage assignment or garnishment, the Court may require the obligor to execute such wage and earning assignment.

SECTION 502. CHILD CUSTODY ACTIONS OUTSIDE DIVORCE AND ANNULMENT PROCEEDINGS

(A) The Court shall have authority to determine custody of children as between parents and legal guardians, or as between parents or legal guardians and anyone with actual physical custody of the child, either pursuant to a court order or otherwise, where there is no divorce or annulment proceeding pending. Such a custody proceeding shall commence with the filing of a written petition by the parent or custodian as defined in the Rules of Civil Procedure.

(B) The court may order a home study in order to assist in determining custody. In ruling on a custody petition, the Court shall employ the standards set forth in this Chapter, and may order periodic support payments as set forth in that section.

(C) After the Court rules on the petition, neither party may file another custody petition for six months absent a substantial change in circumstances. Any such change shall be described in a petition for modification of custody. Where abuse, neglect, or abandonment of the child is suspected, a petition may be filed under the Rules of Civil Procedure at any time.

SECTION 503. ENFORCEMENT OF CHILD SUPPORT ORDERS

(A) When the Court has ordered periodic support payments under this Chapter, and the parent does not pay as ordered, the Court shall use the same procedures to collect these payments as it would use to enforce any money judgment in a civil action. In the case of execution proceedings under this Chapter and garnishment proceedings under this Law and Order Code, the Court may initiate the proceedings on its own motion.

(B) If the parent willfully refuses to make periodic support payments as ordered by the Court, and the procedures set forth in subsection (a) do not result in full payment, the Court may initiate contempt proceedings and in the event of conviction shall have available the full range of sanctions. No such proceedings shall be instituted if the parent fails to pay by reason of indigence.

SECTION 504. PAYMENT OF MAINTENANCE OR SUPPORT TO COURT

(A) Upon its own motion or upon motion of either party, the Court may order at any time that maintenance or support payments be made to the Clerk of Court as trustee for remittance to the person entitled to receive the payments.

(B) The clerk of the Court shall maintain records listing amounts due, amounts received, the date payments are due, the date payments are received, and the names and addresses of the parties.

(C) The parties shall inform the Clerk of the Court of any change of address or of other conditions that may affect the administration of the order.

(D) If a party fails to make a required payment, the Clerk of the court shall send by registered or certified mail notice of the arrearage to the obligator. If payment of the sum due is not made to the Clerk within ten (10) days after sending notice, the Clerk shall certify the amount due and promptly initiate collection and contempt proceedings against the obligator.

(E) If the person obligated to pay support has left or is beyond the jurisdiction of the Court, the Clerk may institute any other proceedings available under the laws of the jurisdiction for enforcement of the duties of support and maintenance.

(F) On any payments to be made through the Court, a late fee shall be charged for payments not received as ordered. Further, persons failing to satisfy arrears within the ten (10) days as provided in the notice may be assessed additional costs and/or sanctions as determined by the Court.

SECTION 505. JOINT CUSTODY

(A) For the purposes of this Section, "joint custody" means an order awarding legal custody of the minor child to both parents, providing for joint decision-making by the parents and providing that physical custody shall be shared by the parents in such a way as to assure the child of continuing contact with both parents. The Court may award joint legal custody without awarding joint physical custody.

(B) There shall be a presumption that joint custody is in the best interests of a minor child where the parents have agreed to an award of joint custody or so agreed in Court at a hearing for the purpose of determining the custody of the minor child of the marriage. If the Court declines to enter an order awarding joint custody pursuant to this Section, the Court shall state in its decision the reasons for denial of an award of joint custody.

SECTION 506. NON-PARENT CUSTODY

(A) In any dispute as to the custody of a minor child involving a parent and a non-parent, there shall be a presumption that it is in the best interests of the child to be in the custody of the parent, which presumption may be rebutted by showing that it would be detrimental to the child to permit the parent to have custody.

(B) In any proceeding as to the custody of a minor child, and on any complaint under this Chapter, the Court may allow an interested third party with a significant interest in the matter to intervene upon motion. The Court may award full or partial custody, care, education, and visitation rights of such child to such third party upon such terms and conditions as it deems to be in the best interests of the child.

ARTICLE VI. PATERNITY PROCEEDINGS

SECTION 601. JURISDICTION

(A) Upon petition to the Court or in the course of divorce or annulment proceedings, the Court shall have the jurisdiction to adjudicate the paternity of a child and to compel payments for support.

(B) The Pit River Children's Court shall have jurisdiction over all suits brought to determine the paternity of a child provided that the Court has personal jurisdiction over the putative father.

(C) A judgment of the Court establishing the identity of the father of the child shall be conclusive of that fact in all subsequent determinations of support and inheritance.

SECTION 602. PRESUMPTION OF PATERNITY

A rebuttal presumption of paternity exists where one or more of the following factors is present:

(A) The child is born during the marriage of the parties or within 300 days of the termination of the marriage;

(B) The child is born to parties who attempted to marry but whose marriage is or could be declared void;

(C) The child is born to parties who have married or attempted to marry after the child's birth and the putative father has (1) acknowledged paternity in writing, (2) consented to be named as the father on the child's birth certificate, or (3) been ordered to pay child support;

(D) The putative father has openly held out the child as his natural child; or

(E) The putative father has signed a written acknowledgment of paternity.

SECTION 603. PETITIONS

(A) Paternity proceedings are commenced by filing a complaint alleging that the person named as therein is the father of the child and petitioning the Court to issue an Order of Paternity.

(B) Petitions for declaration of paternity may be filed with the Court by the mother of the child or, if the mother does not have custody, by any other individual who has custody of the child. The petition shall be sworn before a notary public or other official designated to verify signatures.

(C) An action under this Part may be brought by any person having an interest in the matter or by the Tribal Prosecutor in the name of the Pit River Tribe.

SECTION 604. SERVICE OF PROCESS

The defendant in a paternity proceeding shall be served with a copy of the petition as provided under the Rules of Civil Procedure.

SECTION 605. RESPONSE

The defendant in a paternity suit may contest the allegations of the petition by filing a response within 60 days of receiving the petition. The response shall be sworn before a notary public or other official designated to verify signatures.

SECTION 606. HEARING

(A) Where such a response is received, the Court shall hold a hearing on the matter. The Court shall schedule a hearing on the matter, which shall be closed to the public.

(B) The testimony of both the mother and putative father shall be solicited in connection with such proceeding.

(C) At the hearing the Court shall receive testimony from any witnesses called by the parties.

(D) The court shall have the authority to order the defendant to submit to a blood test.

(E) The Court may receive the results of a blood test as evidence only if testimony interpreting the results is presented by the physician under whose supervision the test was given.

SECTION 607. DECREE

If, (1) no response is received from the defendant after 60 days, or (2) the Court determines based on the evidence presented at the hearing that the defendant is the father of the child, the Court shall enter a decree of paternity. A copy of the decree shall be delivered to each of the parties, and the original retained for the records of the Court. In extraordinary circumstances and for good cause shown, a decree of paternity granted where the defendant did not respond may be set aside by order of the court.

SECTION 608. BLOOD TESTS

(A) In any proceeding in which a question of paternity is an issue, the Court, upon motion of any party, may order the mother, her child, and the putative father or the husband of the mother to submit to one or more blood grouping tests, to be made by a qualified physician or other qualified person designated by the Court, to determine whether or not the putative father or husband of the mother can be excluded as being the father of the child. The results of such tests shall be admissible in evidence only in cases where such results establish definite exclusion of the putative father or such husband as the father of the child.

(B) In any proceeding in which a question of paternity is an issue, the Court, upon motion of any party, may order genetic tests which shall mean human leukocyte antigen tests, or DNA tests, to be performed, unless a putative father or husband has been excluded by prior blood grouping tests. Such tests shall be made by a hospital, accredited laboratory, qualified physician, or other qualified person designated by the Court, to determine whether or not the putative father or husband is the father of the child. The results of such tests shall be admissible in evidence to establish either definite exclusion of the putative father or husband, or as evidence that he is the father of the child.

(C) The costs of the blood tests shall be chargeable against the party making the motion.

SECTION 609. JUDGMENT AND ORDER OF THE COURT

(A) If the putative father is found to be the biological father of the child, the Court shall make an Order of Paternity.

(B) The Court may order the father of the child to stand charged with the support and maintenance of such child, with the assistance of the mother if she is financially able, as the Court finds, in accordance with the child support provisions of this Ordinance.

SECTION 610. ACKNOWLEDGMENT OF PATERNITY

In lieu of or in conclusion of a paternity proceeding, the written acknowledgment of paternity executed by the putative father of the child when accompanied by an attested waiver of the right to a hearing and the right to an attorney, and a written affirmation of paternity executed and sworn or affirmed to by the mother of the child and filed with the Court, shall have the same force and effect as a judgment of the Court.

SECTION 611. AGREEMENT TO SUPPORT

(A) In conclusion of a paternity proceeding or in lieu of a contested support hearing, a written acknowledgment of support of the child in accordance with Tribal child support procedures under this Ordinance, together with provisions for any reimbursement for past due support based on ability to pay, and any reasonable expense of prosecution of the petition, may be obtained in the manner prescribed above, and such acknowledgment shall have the same force and effect, retroactively or prospectively in accordance with such agreement as an order of support by the Court.

(B) Wage executions and earning assignments in accordance with the Tribal child support procedures under this Ordinance shall be available in paternity proceedings.

ARTICLE VII. VISITATION RIGHTS

SECTION 701. VISITATION RIGHTS

(A) The Court may grant the right of visitation of any child or children to any person, upon an application of such person if the Court finds that it is in the best interests of the child. Such order shall be according to the Court's best judgment based upon the facts of the case and subject to such conditions and limitations as it deems equitable, provided the grant of such visitation rights shall not be contingent upon any order of financial support by the Court.

(B) Visitation rights granted in accordance with this Section shall not be deemed to have created parental rights in the person to whom such visitation rights are granted.

SECTION 702. PETITION FOR VISITATION RIGHTS BY GRANDPARENTS

(A) Elders are very important and highly respected within our tribal structure. They are the caretakers of our rich culture and traditions. The Indian Child Welfare Act, in recognition, gives priority to grandparents when placing children who are in need. We also, as a people, wish to emphasize elder's rights and protection by making them a part of our laws.

(B) The grandparents of a child may petition the Court for grandchild(ren) visitation rights in the following circumstances:

(1) The parents of the children are divorced or legally separated; or

(2) An action for divorce or separate maintenance has been commenced by one of the parents of the child(ren); or

(3) The parent of the child(ren), who is the child of the grandparent, has died.

(C) The Indian Child Welfare Act, defines "extended family" as the child's grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, stepparent or any other person defined by law or custom of the tribe.

(D) The Court, in its discretion, may grant visitation rights with or without petition by the grandparents, if it is in the best interest of the grandchild.

ARTICLE VIII. MISCELLANEOUS

SECTION 801. EFFECT OF DECREE

A decree of annulment or dissolution shall give the parties the status of unmarried persons and they may marry again.

SECTION 802. NOTICE OF COURT DECREES

The Court Clerk shall, on or before the fifteenth day of each month, file a notice with the Department of Health and Human Services and the Tribal Clerk of each dissolution or annulment of marriage granted in the preceding month, stating the names and addresses of the parties to the marriage, the date of granting of the dissolution or annulment, and any name change granted by the Court. Before a final decree is entered, the parties or their attorneys shall supply the Court Clerk with such information as is necessary to complete the notice.

SECTION 803. RESTORATION OF FORMER NAME

At the time of entering a decree dissolving a marriage or granting an annulment, or any time after entering such a decree, the Court shall, upon the request or motion of the spouse whose name is to be changed, restore the birth name or former name of such spouse.

SECTION 804. REVIEW OF AGREEMENTS; INCORPORATION INTO DECREE

(A) In any case under this Chapter where the parties have submitted to the Court an agreement concerning the custody, care, education, visitation, maintenance or support of any of their children or concerning spousal support or the disposition of property, the Court shall inquire into the financial resources and actual needs of the spouses and their respective fitness to have physical custody of or rights of visitation with any minor child, in order to determine whether the agreement of the spouses is fair and equitable under the circumstances.

(B) If the Court finds the agreement fair and equitable, it shall become part of the Court file, and if the agreement is in writing, it shall be incorporated by reference into the order or decree of the Court.

(C) If the Court finds that the agreement is not fair and equitable, it shall make such orders as to finances and custody as the circumstances require.

(D) If the agreement is in writing and provides for the care, education, maintenance or support of a child beyond the age of eighteen, it may also be incorporated or otherwise made a part of any order and shall be enforceable to the same extent as any other provision of such order or decree.

SECTION 805. CONTEMPT ORDERS

When any person is found in contempt of an order of the Court, the Court may award to the petitioner a reasonable attorney's fee and the fees of the officer serving the contempt citation, such sums to be paid by the person found in contempt. The costs of commitment of any person imprisoned for contempt of Court by reason of failure to comply with such an order shall be paid by the Tribe.

SECTION 806. ATTORNEY'S FEES

The court, after considering the financial resources of both parties, may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under this chapter and for attorney's fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgment. The Court may order that the amount be paid directly to the attorney, who may enforce the order in his or her own name.

SECTION 807. RECOGNITION OF FOREIGN DIVORCES AND ANNULMENTS

A divorce or annulment duly granted under the laws of the United States, any tribe, state, or foreign nation shall be recognized as valid by the Pit River Tribal Court for all purposes.

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