New Mexico: New Mexico Supreme Court Rules State and Tribal Court Must Share Jurisdiction in Child Custody Case. BY: Eve S.

Link for opinion: http://caselaw.findlaw.com/nm-supreme-court/1001192.html

Title: New Mexico: New Mexico Supreme Court Rules State and Tribal Court Must Share Jurisdiction in Child Custody Case

The New Mexico Supreme Court held in Garcia v. Gutierrez, 2009-NMSC-44, 147 N.M. 105, 217 P.3d 591 that the state court and tribal court must share jurisdiction and work out their differences in a custody dispute between a Native American father and non-Native American mother whose children are enrolled as members of the Pojoaque Pueblo-state.

Angelina Garcia married Matthew A. Gutierrez, a member of the Pojoaque Pueblo in 1998. The couple lived much but not all of their married life on Pueblo lands. In August 2002 the wife left her husband and took their children to live at her father’s house after a series of domestic violence incidents. When he realized that his wife had left Mr. Gutierrez went to his father-in-law’s house and stabbed Ms. Garcia repeatedly for which he faced criminal charges. The wife was awarded temporary custody by the district court and filed a petition to dissolve the marriage in district court while the husband filed a parallel motion in tribal court.

In spite of receiving notice for the tribal court’s proceedings, Ms. Garcia did not appear in the tribal court and was found in contempt. The wife and husband were awarded joint custody by the tribal court. The district court entered the divorce decree and declared that it had jurisdiction over child custody issues. The Court of Appeals reversed the district court and held that only the tribal court had jurisdiction over the child custody issues in the case. The wife appealed to the New Mexico Supreme Court who agreed to hear the case.

The question before the Court was whether the state had jurisdiction over the child custody dispute. Its inquiry was governed by a state statute, the Uniform Child-Custody Jurisdiction and Enforcement Act (“UCCJEA”), NMSA 1978, §§ 40-10A-101 to-403 (2001) and a federal statute, the Parental Kidnapping Prevention Act (“PKPA”), 28 U.S.C. §173A (2000).

The UCCJEA or a similar earlier version has been passed in all 50 states with the purpose of preventing couples from shopping around for a more favorable venue in child custody cases. If a home state can be established in a custody case, other jurisdictions with similar statutes cannot exercise jurisdiction in the same case. If a home state cannot be established than a court in a state with which the child and one or both of the parents has “significant connections” can establish jurisdiction. If more than one state has significant connections those courts must communicate to determine which state has the most significant connections to the child. See NMSA § 40-10A-202(a)(1)-(2); § 40-10A-206.

One of the key issues in this case was whether home state jurisdiction of the Pojoaque-Pueblo state could be established based on location of the wife’s father’s house, which was on non-Indian fee land within the boundaries of the Pueblo lands. The Court held that this did not establish Pueblo jurisdiction in this case based in part on the U.S. Supreme Court’s ruling that a tribe’s efforts to exert civil authority over nonmembers on non-Indian fee land are “presumptively invalid”. See Atkinson Trading Co. v. Shirley, 532 U.S. at 659. Although the Court found that no home state could be established for the children or either parent in this case, it did find there were significant connections for all parties with the state of New Mexico and the Pojoaque-Pueblo. Since the Pueblo had not adopted the UCCJEA or similar statue, the Court found the State had proper jurisdiction in the case although this did not exclude tribal jurisdiction given strong Congressional support for tribal self-determination in the raising of tribal children.

The Court also found that the PKPA did not apply in this case as Congress had not specifically included tribal lands as being obligated under its provisions. Since tribal lands are specifically obligated in other federal statutes the court found that the lack of such a reference in this act was intentional.

In summary, the court stated that while there was no definitive answer to this complex jurisdictional dispute, there was a long tradition of the New Mexico state and tribal courts sharing jurisdiction and they must work out their differences guided by the universally accepted principals of doing what was in the best interests of the children.