9.02.170 Domestic Relations

The Turtle Mountain Tribal Code does not currently address the issue of the subordinate right of grandparents to visit their grandchild(ren) and the Tribe takes into consideration that if too many third parties are allowed to dilute the superior right of the parent(s) to care, custody, and control of their children, then such tribal interference would be contrary to the federal constitution; and therefore, third parties (i.e. grandparents) cannot be allowed to rely solely on the best interests of the child(ren) analysis to dilute and compete with fundamental, paramount, and superior parental rights.

Should a parent or other custodian of a child wish to disallow a child's grandparents from exercising the subordinate right recognized in Section 9.02.160 above, the grandparents must first argue their subordinate right to visitation through mediation and show, by clear and convincing evidence, that the grandparents are not a threat to the physical and/or moral health and welfare of the child and that such grandparent visitation would not adversely interfere with the parent-child relationship.

The Tribal Court shall require mediation of the matter under this chapter before such a matter is brought to Tribal Court. If mediation fails and if the mediator agrees, the court may order the dispute arbitrated by the person who attempted mediation. Joinder of grandparents or of great grandparents awarded visitation rights under this section must occur in any proceeding to terminate parental rights.

This section does not apply to agency adoptions or when the child has been adopted by a person other than a stepparent or grandparent. Any visitation rights granted under this section before the adoption of the child may be terminated upon the adoption if termination of the rights is in the best interest of the child.

An application for visitation rights under this section may be considered by the tribal court in conjunction with a divorce proceeding involving the parent of the minor child. If any tribal court retains jurisdiction over the residential placement of the minor child or children by virtue of any prior proceeding, the rights conferred by this section maybe enforced by the grandparents or the great-grandparents through motion under the prior proceeding. If no tribal court otherwise has jurisdiction, a proceeding to enforce grandparental visitation rights may be brought against the parent having primary residential responsibility as a civil action and venued in the county of residence of the minor child.