Zuni Custody Cases

Basics of Zuni Custody Cases

If we agree, why file anything in court?

Even if you and your ex agree about everything, it is important to make your custody arrangements official by filing a petition with the Zuni Children’s Court.  If you disagree later, it will be harder for your ex to do something like refusing to return the kids after a visit, and harder for you to get help from the police if this happens.  Even if you always agree, you may need your custody papers if anyone else, like a school, questions your right to get information about your kids.

 

Is it hard to file for custody? 

Filing is only the beginning of a custody case: the case lasts until the children are grown up. Some custody cases are simple, and some can get very hard.  If you are able to agree on things, it always makes things simpler. If you want to avoid going to court a lot as your children grow up, take your time working on a parenting plan.  Usually, the more detailed it is, the less chance there is that you’ll have to get a judge involved later.  Once you have a court order, if either of you feels the other side isn’t following the parenting plan, you can make a motion to enforce it, but you should always try to talk  out your problems first (unless there is an order of protection or you are afraid of abuse).  If either of you wants changes later on and can’t agree on them, you can make a motion to modify, but if there are no domestic abuse issues, you should always try to make an agreement first. Remember, either party can bring motions to enforce or motions to modify anytime until a child is 18.  The more you can get in the habit of resolving your problems without running to court, the easier your custody case will be.

 

What if my ex won’t work with me or I can’t work with my ex?

If you’ve tried to make a parenting plan with your ex and your ex just won’t be reasonable, you should use an ordinary petition for custody from the Zuni Children’s Court and ask the judge to order the parenting plan you want.  You can attach the Parenting Plan Agreement to your custody Petition, and should let the judge know you tried first to work it out.  Do the same thing if you have problems later on – if you tried first to work things out, let the judge know that when you bring a motion to enforce or a motion to modify.  If you couldn’t work it out because your ex is abusive toward you, file a Petition for Custody and, if you haven’t already, a Petition for an order of Protection.  You may be able to get help doing this from New Beginnings or New Mexico Legal Aid.

 

Does this case belong in the Zuni Children’s Court or in state court?

Under the Zuni Tribal Code, only the Zuni Children’s Court can decide your custody case if both of you live on the Zuni reservation and your children are enrolled or eligible for enrollment.  If one or both of you live outside Zuni, you can still agree to have the case decided in Zuni, as long as your children are enrolled or eligible for enrollment.  If you live in New Mexico off the reservation and it is too hard to travel to Zuni for hearings, you may decide to file a petition in state court, and it will have concurrent jurisdiction (both Zuni court and state court have the power to hear the case).  Zuni doesn’t let parties appear in court by phone, so if you agree to file in Zuni be sure you are able to get to Zuni for hearings (if you agree on a parenting plan, you may be able to avoid having any hearings, but remember that things can change a lot over 18 years).  The disadvantage of filing in state court is that state court judges are less likely to understand all of the issues that are important to Zuni children and Zuni parents.  Also, if you both live in Zuni but file in state court, the state court can and should refuse to hear the case, since Zuni has exclusive jurisdiction (it is the only court allowed to decide the case).  Even if a state court agrees to decide your case, your ex could move to have the state court decision thrown out for lack of jurisdiction, and you would have to start over in Zuni.  You should not try to get a state court to decide your case if it does not have jurisdiction.  No matter where you start the case, jurisdiction may change later if the children move.

 

What does the law say about custody?

Zuni has both written law (the Zuni Tribal Code) and customary law – a judge deciding a custody case may look at both.  In both written and customary law, the most important concern for Children’s Court judges is what is in the best interest of the children. Under the Zuni Tribal Code and under customary law, there is a presumption that the mother should have primary physical custody of a child, but a judge can order primary custody with the father if he or she finds that this is what is best for the child.  No matter who has primary physical custody, judges will almost always find that it is in children’s best interests for children to spend time with both parents.  This is called timesharing.

Judges will almost always find that it is in children’s best interests for both parents to have a say in their upbringing and the right to have information about their schooling, medical care, etc. This is called joint legal custody.

 

Do-It-Yourself Packet - Make your Custody Agreement Official

We made this packet to help you get a court order from the Zuni Children’s Court that makes your custody arrangements with your ex, official.  You can use this packet if (a) you and your ex agree on who has the right to make decisions about where your kids spend their time and who will make decisions about your kids, (b) your children are enrolled members of the Zuni Tribe or are eligible for enrollment, and (c) both parents live in Zuni or agree to let the Zuni Children’s court.  Before filing a custody petition, you should always try to make an agreement with your ex unless (a) you are worried that your ex will be abusive toward you if you try to talk over custody or (b) if there is a domestic violence order of protection which prevents you from talking to your ex.  If you are eligible for services from New Mexico Legal Aid and your ex is not one of our clients, we can advise you on representing yourself and can consider requests for representation in court.  To see if you’re eligible for services at Legal Aid, schedule an intake appointment by calling the Zuni Senior Center at 782 5541.  If you are a victim of domestic violence, you may also be able to get help filing a Petition at New Beginnings.  Their number is 505 782 4600.

These are the papers that you will find in this packet:

  • Informational papers:
    • “Basics of Zuni Custody Cases” - Read this for some basic tips on custody cases in Zuni.
  • Papers to Use in Your Court Case:
    • Uncontested Petition for Custody and Timesharing
    • Parenting Plan Agreement
  • Filing Checklist - Use this checklist for instructions on how to file (get copies to the court) and serve (get copies to both parties) everything.

If you use this packet and have suggestions for how to improve it, please let us know!

 

Checklist for Filing in Zuni Tribal Court

(Uncontested Custody Petition and Parenting Plan for Unmarried Parents)

  • Review the papers carefully and decide what you think is the best plan for how much time the child/ren will spend with each parent and the other issues discussed in the Parenting Plan. Once you have decided what you think is the best plan, sit down with the other parent and see if you can come to an agreement. Fill out every item carefully. This pro se packet contains two possible forms for a timesharing or visitation plan – one that provides a two week repeating schedule (this is better if the child/ren will be spending time with each parent regularly), and one that only lists planned visits (this is better if the child/ren will spend most of the time with one parent and only occasionally visit the other). You should only attach one schedule, as Exhibit A to the Parenting Plan. If neither of the forms works, you can just write your schedule on a piece of paper the way you want it. Remember that once The Parenting Plan is signed by a Judge, you cannot make any changes unless you both agree. It is very important to think carefully about what you both want before submitting these papers to court.
  • Find a Notary. Each of you needs to sign the Verification section on the Parenting Plan Agreement and Pro Se Petition for Custody and Timesharing in front of a notary.
  •  Each of you needs to sign every other place on all the papers that have a line for your signature.
  • Make three copies of each paper.
  • Bring these things to the Tribal Court:
    • A money order for $25, payable to the Pueblo of Zuni (this is the filing fee);
    • Pro Se Petition for Custody and Timesharing (3 copies);
    • Parenting Plan (3 copies)
  • Ask the clerk to stamp a copy of each of the papers you filed. You leave the original with the clerk, and each of you keeps a copy.
  • Ask if the Judge can sign the Order without holding a hearing. The judge may want to have a hearing, to make sure the plan is in the child/ren’s best interests or may sign the Order without a hearing. If the judge signs the Parenting Plan, you will be required to follow it. If you change your mind about something in the Parenting Plan, you must still follow it unless the other parent agrees to a change. If the other parent doesn’t agree, follow the Problem Solving steps in the Parenting Plan. If the other parent does agree, try to get it in writing, or at least write a letter or a text after you agree orally, confirming what your agreement is.

 

Stipulated Parenting Plan -  Zuni

IN THE ZUNI CHILDREN’S COURT

PUEBLO OF ZUNI

ZUNI, NEW MEXICO

In the Matter of the Custody of:

 

______________________________, Census No. ___________, DOB ______________

 

______________________________, Census No. ___________, DOB ______________ a minor child/minor children, and involving            

 

______________________________________

                                                            Petitioner,

 

and                                                    Cause No.: ____________________

 

________________________________________

                                                             Respondent.

 

 

PARENTING PLAN AGREEMENT

Petitioner and Respondent are the parents of the following enrolled Zuni child/children:

Name                                                   DOB                                       Census No.

 

We both agree to the terms of this parenting plan agreement.

1. Residence of the child/ren.  _____________________ has primary physical custody of the child, and the child shall live with ________________at the following address:

2. Review of plan. We understand that the needs of the child/ren will change with time. The plan may also change because either parent's employment or other circumstances change. We agree to meet every year to make sure this plan continues to work well.  If an in-person meeting is not feasible, we agree to discuss it by phone.

CUSTODY OF THE CHILD/REN

We have joint legal custody of the child/ren and will make important decisions about the child/ren together. No change regarding an important decision will happen unless we both agree to the change in writing or the court changes it.

 ______________________ has primary physical custody.

TIMESHARING/VISITATION

The child/ren will spend time with us according to the schedule attached as Exhibit A.

When the child/ren is/are going from Petitioner’s home to Respondent’s home, we will exchange the child/ren at (check one):

 

 

Petitioner’s home

 

 

 

 

 

 

 

Respondent’s home

 

 

 

 

 

 

 

Another location:

 

 

When the child/ren is/are going from Respondent’s home to Petitioner’s home, the parties shall exchange the child/ren at (check one):

 

 

Petitioner’s home

 

 

 

 

 

 

 

Respondent’s home

 

 

 

 

 

 

 

Another location:

 

 

The Parties may mutually agree to other arrangements.
 

Besides us, the following person/people may pick up or drop off the child: _________________________________________________________________________________________

__________________________________________________________________________________.

DETAILS ABOUT THE CUSTODY PLAN

1. Telephone and mail. The child/ren may call each of us and receive letters and packages from each of us.  We will not interfere with the child/ren's communication with the other parent.  When the child/ren is/are staying with one parent, the other parent may contact the child/ren by that parent's home phone.

2. Emergencies. If there is a medical emergency, the parent with the child/ren will try to call the other parent about the emergency. If the other parent cannot be reached, any decision for emergency medical treatment will be made by the available parent in the best interest of the child/ren.

3. Changes. We may ask each other for changes to this schedule. We each have the right to say "no". If one of us says "no", we will not argue or criticize the other parent's decision. If we don't agree, we will follow the "solving arguments" section of this agreement.

SOLVING ARGUMENTS

1. Dispute resolution. We will resolve any custody, visitation or time-sharing dispute

regarding our child in this way:

2. Solving problems. (steps continue until problem solved)

A. Talk together; or

B. Communicate through writing: requesting parent sends document listing the change and why; and answering parent sends response within 14 days. If the answering parent does not agree to the change, the response must say why, and, if possible, make a new proposal.

C. Take the following steps:

1. Go to couple, family or other counseling;

2.  Go to mediation with a neutral party;

3. Go to court.  If the court determines that a hearing was only necessary because one parent refused to follow the Problem Solving steps, that parent will be responsible for paying any court costs or attorney’s fees the other parent had to spend.

GENERAL AGREEMENTS; HOW THE PARTIES TREAT THE CHILD

1. We will both be actively responsible for and involved in the child/ren's life.

2. As children grow their needs change. We will talk about these changing needs.

3. We will support the child/ren's relationship with the other parent and not interfere in it. We will be positive about those relationships. We will not argue in the presence of the child/ren, and neither party will speak badly of the other parent in the presence of the child/ren.  To the extent possible, we will not discuss visitation or parenting in front of the child/ren.

4. Only the parents are parties to a custody case, and the parents are responsible for making decisions about the child/ren and caring for the child/ren.  Each parent is also responsible for fostering the child’s/children’s relationships with that parent’s own side of the child’s/children’s extended family.  Both of us will support the child/ren’s ties to the child/ren’s maternal and paternal extended family and clans, and to the Zuni Tribe.  If the child has ties to another tribe or culture, both of us will foster ties to the other tribe or culture as well.

4. We each have the right to information about the child/ren’s school, medical and dental care, child care, religious practice and extracurricular activities.  We will do our best to make decisions about these things together, but we will also try to respect the decisions of the other parent while the child/ren is/are in that parent’s home.  If either of us learns that the child/ren is/are involved in any other legal proceeding, we agree to notify the other parent.

5. We will consider the child/ren’s best interest when we make decisions about the child.  We will never ask the child/ren to make decisions that he/she/they is/are not old enough or mature enough to make. We will never ask the child/ren to choose between us.

7. Neither parent will use drugs or excessive alcohol in the presence of the child.

SO ORDERED THIS ____ DAY OF ________________ 20___ BY:

 

                                                                                    _______________________

                                                                                    Judge, Zuni Tribal Court                                

 

Respectfully submitted by:

Petitioner pro se                                              Respondent pro se

______________________________           ________________________________

signature                                                          signature

 

_____________________________              _______________________________         

print name                                                      print name

 

address:                                                           address:

           

           

 

                                   

phone:                                                             phone:

 

VERIFICATION OF PARENTING PLAN AGREEMENT

Each undersigned party affirms, under oath and penalty of perjury, that:

I have read this agreement and agree with everything in it;

I have read the warnings and cautions listed in this agreement;

I have gotten the help I needed before signing this agreement; and

This document and the statements in it are true and correct to the best of my knowledge and belief.

 

______________________________                                    ______________________________

Petitioner                                                                                 Respondent

 

STATE OF NEW MEXICO              )

                                                            )  ss.

COUNTY OF MCKINLEY              )

 

            SUBSCRIBED AND SWORN TO before me this      day of ________,  20____, by

____________________________________, the Petitioner.

 

__________________________________

Notary Public

My Commission Expires:____________

STATE OF NEW MEXICO              )

                                                            )  ss.

COUNTY OF MCKINLEY              )

            SUBSCRIBED AND SWORN TO before me this      day of ________,  20____, by

____________________________________, the Respondent.

 

__________________________________

Notary Public

My Commission Expires:____________

This pro se form was prepared by New Mexico Legal Aid.

 

Timesharing Schedule

PARENTING PLAN EXHIBIT A:

TIMESHARING SCHEDULE

Same plan (circle one) each week / every two weeks.

(Write the times that the child/children will be with each parent for each day.  For example, if the child/children will be with Mother until 5pm Monday and then with Father for the rest of the day, write 12am-5pm for Mother’s time on Monday and 5pm – 12am for Father’s time on Monday.  If the child/children spend all day with one parent, write 12am- 12am under that parent for that day.)

Week 1           Mother's time             Father's time

Monday           ____________            ______________

Tuesday           ____________            ______________

Wednesday     ____________           ______________

Thursday         ____________           ______________

Friday             ____________            ______________

Saturday          ____________           ______________

Sunday            ____________            ______________

 

Week 2           (If you want the same plan every week, leave this blank)

          Mother's time             Father's time

Monday           ____________            ______________

Tuesday           ____________            ______________

Wednesday     ____________           ______________

Thursday         ____________           ______________

Friday              ____________            ______________

Saturday          ____________           ______________

Sunday            ____________            ______________

 

THE VACATION AND HOLIDAY PLAN

1. Vacations. We will each have ____ [days] [weeks] (circle one) of uninterrupted time with the [child] [children] each year. We will give each other at least ____ (days) (weeks) notice of the vacation time. Any dispute will be resolved in the manner agreed to in the "Solving Arguments" section of this parenting plan.

2. Holidays. Regardless of the day of the week, the [child] [children] will spend:

Holidays:                    Even year                   Odd year                                Times (if split)

Mother's Day              Mother                        Mother

Father's Day                Father                          Father

Child's Birthday          _________                  __________                            __________________

Halloween                   _________                  __________                            __________________

Thanksgiving break     _________                  __________

(From _________________   To ___________________)

Shalako and Winter Fasting

                                     _________                 __________

(From _________________   To ___________________)

Spring Break               _________                 __________

(From _________________   To ___________________)

July 4th                       _________                  __________

Summer Fasting and Solstice

_________                  __________

Others: _______________________________________________________________________

______________________________________________________________________________

_____________________________________________________________________________.

The Monday of a 3-day weekend is the same as the Sunday schedule unless we agree

differently.

3. Write in any other information regarding the plan or the vacation schedule

here:___________________________________________________________________

_______________________________________________________________________.

 

 

Uncontested Custody Petition Zuni

 

IN THE ZUNI TRIBAL COURT

PUEBLO OF ZUNI

ZUNI, NEW MEXICO

In the Matter of the Custody of:

 

______________________________, Census No. ___________, DOB ______________

 

______________________________, Census No. ___________, DOB ______________

a minor child/minor children,

and involving            

 

______________________________________

                                                            Petitioner,

 

and                                                                              Cause No.: ____________________

 

________________________________________

                                                             Respondent.

 

 

UNCONTESTED PETITION FOR CUSTODY AND TIMESHARING

  1. Petitioner and Respondent are the parents of the following enrolled Zuni child/children:

Name                                                   DOB                                       Census No.

 

  1. This Court has subject matter jurisdiction over this case because the child is an enrolled member/children are enrolled members of the Zuni Tribe.

 

  1. Both Parties submit to the personal jurisdiction of this Court.

 

  1. The Parties have entered into a Parenting Plan Agreement which sets forth the legal and physical custody of the child/ren as well as timesharing and other agreements.  The Parties request that this Court order our Parenting Plan Agreement to be put into effect.

 

Respectfully submitted by:

Petitioner pro se*                                           

______________________________           

signature                                                         

 

_____________________________                         

print name                                                     

address:                                                                                   phone:                        

           

VERIFICATION

Petitioner affirms, under oath and penalty of perjury, that:

I have read this agreement and agree with everything in it;

I have read the warnings and cautions listed in this agreement;

I have gotten the help I needed before signing this agreement; and

This document and the statements in it are true and correct to the best of my knowledge and belief.

 

______________________________                                   

Petitioner                                                                                

 

STATE OF NEW MEXICO              )

                                                            )  ss.

COUNTY OF MCKINLEY              )

            SUBSCRIBED AND SWORN TO before me this      day of ________,  20____, by

____________________________________, the Petitioner.

 

__________________________________

Notary Public

My Commission Expires:____________

*These pro se pleadings were prepared by New Mexico Legal Aid, 211 West Mesa Ave, Stes. A & B , P.O. Box 1475, Gallup, NM 87301.

 

 

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