• June 2014
  • Vol. 15, No. 6

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Using Expert Witnesses in ICWA Proceedings

The Federal Indian Child Welfare Act requires that courts consider the testimony of qualified expert witnesses in all proceedings for the foster care placement of an Indian child or the termination of an Indian parent's parental rights. The challenge for States is that the term "qualified expert witness" is not defined in the law, and policy guidance from the Bureau of Indian Affairs can be ambiguous.

In codifying Federal requirements into State law, Wisconsin identified the need to more clearly define the roles and qualifications of the expert witnesses that could be called to testify in such cases. A new publication presents policy developed by the Wisconsin Indian Child Welfare Act (WICWA) State Advisory Board and the Department of Children and Families to provide guidance for consistent application of State qualified expert witness provisions.

In Wisconsin, qualified expert witnesses provide testimony to ensure that the norms, culture, or traditions of the Tribe are not used as a premise for removal of the child from his or her home and to aid the court's determination as to whether continued custody of the child by the parent or Indian custodian is likely to result in serious physical or emotional harm. In addition, Wisconsin's law creates a "tier" system that provides a clear definition and distinction between "types" or orders of preference of qualified expert witnesses.

Qualified Expert Witness: Wisconsin Indian Child Welfare Act Implementing Guidelines 2013 is available on the website for the Wisconsin Department of Children and Families:

http://dcf.wisconsin.gov/memos/num_memos/DSP/2013/2013-05attach.pdf (74 KB)

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