19.14Qualified Expert Witness

“If the testimony of a qualified expert witness is required, the court shall accept either of the following in the following order of preference:

(a) A member of the Indian child’s tribe, or witness approved by the Indian child’s tribe, who is recognized by the tribal community as knowledgeable in tribal customs and how the tribal customs pertain to family organization and child rearing practices.

(b) A person with knowledge, skill, experience, training, or education and who can speak to the Indian child’s tribe and its customs and how the tribal customs pertain to family organization and child rearing practices.” MCL 712B.17(1).

Note: “The social worker regularly assigned to the Indian child may not serve as a qualified expert witness in child-custody proceedings concerning the child.” 25 CFR 23.122(c).

The state has the burden to obtain qualified expert witness testimony. See In re McCarrick/Lamoreaux, 307 Mich App 436, 465-467 (2014) (state must provide a qualified expert witness in order to place an Indian child in foster care); In re Payne/Pumphrey/Fortson, 311 Mich App 49, 62 (2015) (state must provide a qualified expert witness in order to terminate parental rights).1

“A party to a child custody proceeding may present his or her own qualified expert witness to rebut the testimony of the petitioner’s qualified expert witness.” MCL 712B.17(2).

“The court or any party may request the assistance of the Indian child’s Tribe or the BIA office serving the Indian child’s Tribe in locating persons qualified to serve as expert witnesses.” 25 CFR 23.122(b).

“[The] qualified expert witness must be qualified to testify regarding whether the child’s continued custody[2] by the parent[3] or Indian custodian[4] is likely to result in serious emotional or physical damage to the child and should be qualified to testify as to the prevailing social and culture standards of the Indian child’s Tribe. A person may be designated by the Indian child’s Tribe as being qualified to testify to the prevailing social and cultural standards of the Indian child’s Tribe.”5 25 CFR 23.122(a).

“[T]he qualified expert witness [should] be someone familiar with that particular child.” Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act, 81 Federal Register 96476, G.2 (2016).

1    For a detailed discussion on involuntary foster care placement, see Section 19.12(C), and on termination of parental rights, see Section 19.12(D).

2    “Continued custody means physical custody or legal custody or both, under any applicable Tribal law or Tribal custom or State law, that a parent or Indian custodian already has or had at any point in the past. The biological mother of a child has had custody of a child.” 25 CFR 23.2. For purposes of custody, “[a] party may demonstrate the existence of custody by looking to Tribal law or Tribal custom or State law.” Id.

3    “Parent or parents means any biological parent or parents of an Indian child, or any Indian who has lawfully adopted an Indian child, including adoptions under Tribal law or custom. It does not include an unwed biological father where paternity has not been acknowledged or established.” 25 CFR 23.2.

4    “Indian custodian means any Indian who has legal custody of an Indian child under applicable Tribal law or custom or under applicable State law, or to whom temporary physical care, custody, and control has been transferred by the parent of such child. An Indian may demonstrate that he or she is an Indian custodian by looking to Tribal law or Tribal custom or State law.” 25 CFR 23.2.

5    For a discussion on an Indian child’s Tribe, see Section 19.4(A)(2).