37.03.070 Child Custody and Visitation

(a) In every proceeding where child custody is disputed, a determination by the court that domestic violence has occurred raises a rebuttable presumption that it is detrimental to the child and not in the best interest of the child to be placed in the sole custody, joint legal custody or joint physical custody of the perpetrator of domestic violence. In determining whether the presumption applies, it is irrelevant whether the domestic violence occurred in the presence or outside the presence of the child.

(b) When the custody of a child or visitation by a parent is at issue and the Court has made a finding of domestic violence:

(1) The primary consideration of the court shall be the safety and wellbeing of the child and of the parent who is the victim of domestic violence;

(2) The court shall consider the perpetrator's history of causing or causing reasonable fear of physical harm, bodily injury or assault; and

(3) The court shall also consider the perpetrator's overall lifestyle including alcohol and other chemical use.

(4) If a parent is absent or relocates because of an act of domestic violence by the other parent, the absence or relocation is not a factor that shall weigh against absent or relocated parent.

(c) When the custody of a child or visitation by a parent is at issue and the Court has made a finding of domestic violence, there is a rebuttable presumption that it is in the best interest of the child to reside with the parent who is not a perpetrator of domestic violence in the location of that parent's choice, whether that location is inside or outside the confines of the Indian reservation.

(d) When the modification of an order for custody or visitation is at issue and the Court has made a finding of domestic violence since the order was established, a change of circumstances is established.

(e) When the visitation by a parent is at issue and the Court has made a finding of domestic violence, the following conditions apply:

(1) Only if the court finds that adequate provisions for the safety of the child and the parent who is a victim of domestic violence can be made, may the court award visitation by a parent who committed domestic violence.

(2) In a visitation order, a court may:

(A) Order the exchange of a child to occur in a protected setting;

(B) Order visitation supervised by an independent third person or agency;

(C) Order the perpetrator of domestic violence to attend and complete, to the satisfaction of the court, a program of intervention for perpetrators as a condition of visitation;

(D) Order the perpetrator of domestic violence to attend and complete, to the satisfaction of the court, a program for chemical dependency;

(E) Order the perpetrator of domestic violence to abstain from possession or consumption of alcohol or controlled substances during the visitation and the 24 hours preceding the visitation;

(F) Order the perpetrator of domestic violence to pay a fee to defray the costs of supervised visitation;

(G) Prohibit overnight visitation;

(H) Require a bond from the perpetrator of domestic violence for the return and safety of the child; and/or

(I) Impose any other condition that is deemed necessary to provide for the safety of the child, the victim of domestic violence or other family or household member.

(3) Whether or not visitation is allowed, the court may order the address of the child and the victim to be kept confidential.

(4) Supervised visitation shall be conducted by an independent third party as approved jointly by the court and the victim.

(f) In resolving custody or visitation issues, the Court shall not order parties into mediation, counseling, alternative justice, peace-making, circle sentencing, traditional Native ceremonies or any other type of situation that would put the victim in the position of dealing directly with the perpetrator.

(g) All sentences imposed under the Turtle Mountain Domestic Violence Code shall be accompanied by a written statement by the court setting forth the reasons for imposing a particular sentence and such statement is to become a part of the record in the case.