ICWA Does Not Govern Parent-vs-Parent Custody; UCCJEA “Home State” Priority Prevails Over Nonconforming Tribal Jurisdiction

Case: Matter of Kody II. v. Shaunta JJ. (2026 NY Slip Op 03044)
Court: Appellate Division of the Supreme Court of New York, Third Department
Date: May 14, 2026
Author: Mackey, J.

1. Introduction

This custody dispute between two biological parents—an unwed father residing in New York and a mother who is a member of the Navajo Nation residing on the reservation—produced an issue the Third Department described as one of “first impression”: which forum has jurisdictional priority when (i) a tribal court asserts authority based on the child’s tribal status and (ii) a New York Family Court proceeds under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), all against the backdrop of the Indian Child Welfare Act (ICWA).

The mother obtained a domestic abuse protection order (“DAPO”) and, on default, a Navajo Court custody order granting her sole legal and physical custody. The father promptly filed in Columbia County Family Court, which initially granted him temporary custody on the view that the “Utah court” lacked jurisdiction. After extended jurisdictional litigation, Family Court abruptly transferred physical custody to the mother without a best-interests hearing and then dismissed the father’s custody petition “with prejudice,” reasoning that the Navajo Court had exclusive jurisdiction under ICWA—explicitly aiming to “make the appeal moot.”

The Third Department reversed: it held ICWA did not apply to this parent-vs-parent custody contest, held New York had jurisdictional priority under the UCCJEA because New York was the child’s “home state” and the Navajo Court’s asserted jurisdiction was not in “substantial conformity” with UCCJEA standards, and held Family Court erred by changing custody sua sponte without a hearing. The Appellate Division reinstated the father’s petition, ordered return of the child to New York, and directed reassignment to a new judge on remittal.

2. Summary of the Opinion

A. ICWA is inapplicable

Although the child is an “Indian child” under ICWA (25 USC § 1903[4]), the court held ICWA does not apply because the case is solely a custody dispute between the child’s parents. ICWA’s “child custody proceeding” definition covers foster care placement, termination of parental rights, preadoptive placement, and adoptive placement (25 USC § 1903[1]), and federal regulations exclude “[a]n award of custody of the Indian child to one of the parents” (25 CFR 23.103[b][3]). Accordingly, ICWA’s exclusive tribal jurisdiction provision (25 USC § 1911[a]) did not control this dispute.

B. New York has jurisdictional priority under the UCCJEA

The court held New York is the child’s “home state” (Domestic Relations Law §§ 75-a[7], 76[1][a]) because the child lived in New York with the father well over six months before the New York proceeding commenced. Even though the Navajo DAPO matter qualified as a custody-related proceeding for UCCJEA purposes, New York was not required to yield because the Navajo Court’s jurisdictional basis—status-based jurisdiction over Navajo children “wherever they may arise” (9 NNC 1055[d])—was not in “substantial conformity” with UCCJEA jurisdictional standards (Domestic Relations Law § 75-c[3]).

C. Family Court’s sua sponte custody transfer without a hearing was reversible error

Absent a genuine emergency or sufficient information allowing a comprehensive best-interests review, custody should not be changed without a “full and plenary hearing.” The Third Department reversed the January 13, 2026 temporary order transferring physical custody to the mother and remitted for a best-interests hearing.

D. Remedies ordered

  • Reversed dismissal for lack of jurisdiction; father’s custody petition reinstated.
  • Reversed the January 13, 2026 temporary custody order.
  • Remitted to Family Court for further proceedings before a different judge.
  • Kept the May 13, 2024 order (father’s immediate sole legal and physical custody) in effect pending remittal.
  • Ordered mother to return the child to father in New York within 20 days; father to reimburse transportation costs.

3. Analysis

3.1 Precedents Cited

ICWA purpose and scope

  • Haaland v Brackeen, 599 US 255 (2023): Cited for ICWA’s congressional findings—addressing the high rate of removal of Indian children by nontribal agencies—and for framing ICWA as a statute aimed at governmental or agency-driven disruptions of Indian families and tribes. The Third Department used this to reinforce that ICWA’s core concern is not ordinary parent-vs-parent custody litigation.
  • Matter of Dupree M. [Samantha Q.], 171 AD3d 752 (2d Dept 2019): Cited alongside Brackeen to echo ICWA’s protective purpose and the context in which ICWA typically operates.
  • Mississippi Band of Choctaw Indians v Holyfield, 490 US 30 (1989): Quoted for the proposition that “at the heart” of ICWA are jurisdictional provisions over Indian child custody proceedings. The court invoked Holyfield to emphasize that ICWA’s jurisdictional rules matter when (and only when) the dispute is an ICWA-defined “child custody proceeding.”
  • Adoptive Couple v Baby Girl, 570 US 637 (2013) and Cherino v Cherino, 143 NM 452 (NM Ct App 2007): Used to support the categorical point that ICWA does not apply to custody awards between parents, as distinct from foster/adoptive placements or termination proceedings.

UCCJEA treatment of tribal court determinations

  • Matter of Kawisiiostha N. v Arthur O., 170 AD3d 1445 (3d Dept 2019): Cited for the rule that, under Domestic Relations Law § 75-c(3), New York affords recognition to tribal custody determinations made in “substantial conformity” with UCCJEA jurisdictional standards—even where the tribe has not adopted the UCCJEA.
  • Matter of Michael McC. v Manuela A., 48 AD3d 91 (1st Dept 2007), lv dismissed 10 NY3d 836 (2008): Cited in applying “substantial conformity” analysis and addressing the consequences for simultaneous proceedings when the other tribunal’s jurisdictional basis does not align with UCCJEA standards.
  • Miles v Chinle Family Court, 7 Am Tribal Law 608 (Sup Ct, Navajo Nation 2008): Cited to explain Navajo law’s jurisdictional theory: jurisdiction flows from the child’s Navajo status, not physical presence within the Navajo Nation. The Third Department used this to demonstrate the divergence from UCCJEA’s home-state/presence-based jurisdictional structure.

Hearing requirement for custody changes and temporary orders

  • S.L. v J.R., 27 NY3d 558 (2016): The central authority for the “full and plenary hearing” principle and the limited exception where no hearing is requested and the court has sufficient information for an independent best-interests review.
  • Matter of Matthew TT. v Erin TT., 222 AD3d 1242 (3d Dept 2023): Cited for the general rule that custody determinations should follow a full hearing.
  • Matter of Michael A. [Patricia A.], 79 AD3d 1230 (3d Dept 2010): Cited to acknowledge Family Court’s “broad discretion” for temporary emergency placement decisions—while underscoring this case was not an emergency.
  • Matter of Martin R.G v Ofelia G.O., 24 AD3d 305 (1st Dept 2005) and Matter of Kenneth J. v Lesley B., 165 AD3d 439 (1st Dept 2018): Cited to distinguish nonemergency temporary changes (hearing required) from emergency situations (limited ability to act quickly).
  • Matter of Schroll v Wright, 135 AD3d 1028 (3d Dept 2016): Cited for the narrow “sufficient information” exception to the hearing requirement.

Reassignment to a new judge; jurisdiction cannot be stipulated into existence

  • Matter of Nicole TT v David UU., 174 AD3d 1168 (3d Dept 2019) and Matter of Angela F. v St. Lawrence County Dept. of Social Servs., 146 AD3d 1243 (3d Dept 2017): Cited to support reassignment to a new judge on remittal where circumstances warrant.
  • Arnold v Harari, 4 AD3d 644 (3d Dept 2004): Cited for the proposition that subject matter jurisdiction cannot be conferred by waiver or stipulation—yet a stipulation may still be relevant in confirming the appropriate forum when jurisdiction otherwise exists.
  • Matter of Mahoney v Hughes, 227 AD3d 908 (2d Dept 2024): Cited alongside Arnold to show how party conduct/stipulations can support a forum determination without “creating” jurisdiction.
  • Matter of Audreanna VV. v Nancy WW., 158 AD3d 1007 (3d Dept 2018): Cited in rejecting the claim that the Attorney for the Child improperly substituted judgment for the child given the child’s young age and communication limitations.

3.2 Legal Reasoning

A. The court’s “first impression” holding: ICWA’s inapplicability to parent-vs-parent custody

The opinion’s first key move is definitional and structural. Family Court treated ICWA as conferring exclusive tribal jurisdiction. The Appellate Division instead asked the threshold question ICWA itself demands: is this case an ICWA-defined “child custody proceeding”?

ICWA expressly limits “child custody proceeding” to four categories (25 USC § 1903[1][i]-[iv]) and, importantly, excludes “an award, in a divorce proceeding, of custody to one of the parents” (25 USC § 1903[1]). Federal regulations and BIA guidance generalize the exclusion beyond divorce to parental custody awards “in a divorce proceeding or otherwise” (25 CFR 23.103[b][3]; 81 Fed Reg 38800 [2016]). On that basis, the Third Department treated this case—competing custody claims by two parents with no foster-care placement, adoption, or termination request—as outside ICWA altogether.

B. Paternity and the attempted “legal stranger” characterization

The Navajo Court labeled the father a “legal stranger,” apparently due to noncompliance with a tribal requirement to submit a “declaration of paternity.” The Third Department declined to import that approach into ICWA’s federal definition of “parent” (25 USC § 1903[9]), emphasizing the record evidence that the father was listed on the child’s New Mexico birth certificate and that paternity was not meaningfully disputed. The court’s reasoning implies a functional rule: where paternity is already established and undisputed, ICWA does not permit reclassification of a biological father as a non-parent solely by reference to additional, tribe-specific acknowledgment formalities.

C. The UCCJEA supplies the priority rules—and the “substantial conformity” gatekeeper matters

Having held ICWA inapplicable, the court confronted the real-world problem that both sovereigns could still claim jurisdiction: the Navajo Court under tribal law and Family Court under New York law. The opinion resolves that clash through the UCCJEA’s priority structure.

Under the UCCJEA, New York’s authority to make an initial custody determination turns primarily on “home state” status (Domestic Relations Law § 76[1][a]), defined by six consecutive months of residence with a parent immediately before commencement (Domestic Relations Law § 75-a[7]). New York was plainly the home state.

Simultaneous proceedings rules (Domestic Relations Law § 76-e) can require a New York court to stay, communicate, and potentially dismiss in favor of another forum. But that obligation hinges on whether the other forum’s proceeding was commenced in “substantial conformity” with UCCJEA jurisdictional standards (Domestic Relations Law § 75-c[3]).

The Third Department found the Navajo Court’s asserted jurisdiction was not in substantial conformity because Navajo law allows the tribal court to hear custody matters involving Navajo children “wherever they may arise” (9 NNC 1055[d])—a status-based approach the opinion deemed incompatible with the UCCJEA’s home-state-centered model. Therefore, New York was not required to cede jurisdictional priority, and Family Court’s dismissal for lack of jurisdiction was error.

Notably, the court also referenced the parties’ stipulated motion in the Navajo Court that custody issues “shall be addressed [and] resolved exclusively” in Columbia County Family Court. While not jurisdiction-creating (Arnold v Harari), this stipulation reinforced the appropriateness of New York as the forum.

D. Due process and best-interests procedure: sua sponte custody transfer without a hearing

Independently of the jurisdictional rulings, the Third Department identified a serious procedural defect: Family Court’s abrupt, unrequested custody shift—transferring primary physical custody to the mother—without conducting a best-interests hearing and without an emergency record.

Applying S.L. v J.R., the court held that the general requirement of a full hearing applies to nonemergency temporary custody changes, especially where the record includes unresolved factual disputes bearing on best interests (here, the father’s alleged health and safety concerns about the mother’s living conditions, and the mother’s “cultural differences” response). The “sufficient information” exception did not apply.

E. Structural remedy: remittal to a new judge and child’s return

The directive that proceedings be reassigned to a different judge is an institutional safeguard. The opinion highlights Family Court’s expressed intent to “make the appeal moot,” a statement that can reasonably be understood as reflecting a departure from ordinary judicial neutrality about appellate review. The Third Department used reassignment precedents (Matter of Nicole TT v David UU.; Matter of Angela F. v St. Lawrence County Dept. of Social Servs.) to protect the integrity and perceived fairness of the remitted hearing.

The return order—requiring the mother to return the child to New York within 20 days—operationalizes the court’s jurisdictional priority holding and preserves the status quo ante under the May 13, 2024 temporary custody order, while allocating transportation costs to the father.

3.3 Impact

A. Clarifying the boundary between ICWA and ordinary custody disputes

The opinion’s most consequential clarification is that ICWA is not a general jurisdictional trump card in any custody contest involving an “Indian child.” Instead, ICWA’s jurisdictional provisions activate only for ICWA-defined “child custody proceedings” (typically foster care, adoptive contexts, or termination matters), not custody awards between biological parents. This sharply limits attempts to reframe parent-vs-parent litigation as ICWA-controlled simply because a tribal forum has issued an order or because a child is eligible for tribal membership.

B. Strengthening New York’s UCCJEA “substantial conformity” review of tribal orders

New York courts must respect tribal custody determinations made in substantial conformity with UCCJEA jurisdictional standards (Domestic Relations Law § 75-c[3]). This opinion underscores that “substantial conformity” is a meaningful screening mechanism, not a formality. Where a tribal jurisdictional statute is explicitly status-based and untethered to UCCJEA home-state concepts, New York may retain priority even if the tribe has a strong sovereign interest and even if proceedings began first in the tribal court.

C. Procedural discipline in Family Court: limits on sua sponte custody changes

The decision reiterates that even “temporary” orders shifting physical custody—when nonemergency and contested—require a hearing, and it signals heightened appellate scrutiny where a court acts abruptly without motion practice, without a developed record, and without engaging best-interests factors.

D. Practical implications for cross-sovereign family litigation

  • Forum strategy will hinge on UCCJEA home-state facts (where the child lived in the six months before filing) more than tribal-status arguments, unless ICWA truly applies.
  • Tribal protective-order proceedings that include custody components may still be “child custody proceedings” under the UCCJEA definition (Domestic Relations Law § 75-a[4]), but jurisdictional priority will depend on conformity with UCCJEA standards.
  • Courts and counsel should anticipate mandatory inter-court communication where simultaneous proceedings exist (Domestic Relations Law § 76-e), while still litigating “substantial conformity.”

4. Complex Concepts Simplified

  • ICWA (“Indian Child Welfare Act”): A federal statute designed primarily to curb unwarranted removal of Indian children from their families/tribes by nontribal agencies and courts. It creates minimum standards and, in certain covered proceedings, gives tribes powerful jurisdictional protections.
  • “Indian child” (25 USC § 1903[4]): Generally, an unmarried person under 18 who is a member of a tribe or eligible for membership and the biological child of a tribal member.
  • “Child custody proceeding” under ICWA (25 USC § 1903[1]): Not every custody case. ICWA is aimed at foster care, adoption-related placements, and termination of parental rights—not a custody award to one parent over another.
  • UCCJEA: A uniform law adopted by New York to decide which state has authority to make/enforce custody orders across borders and to prevent conflicting custody decrees.
  • “Home state” (Domestic Relations Law § 75-a[7]): Usually the state where the child lived with a parent for at least six consecutive months immediately before the case is filed. Home state typically gets first priority to decide custody.
  • “Substantial conformity” (Domestic Relations Law § 75-c[3]): New York will recognize and defer to a tribal custody determination only if the tribe’s exercise of jurisdiction aligns in substance with UCCJEA jurisdictional standards (especially home-state priority), even if tribal law differs procedurally.
  • Sua sponte: The judge acts on the court’s own initiative, without a party requesting the action.
  • Full and plenary hearing: A complete evidentiary hearing where witnesses can testify and be cross-examined and the court can make findings on best interests; generally required before changing custody absent a true emergency.

5. Conclusion

Matter of Kody II. v. Shaunta JJ. establishes two central, practice-shaping points for New York custody disputes involving tribal connections. First, ICWA does not apply to a straightforward custody contest between two biological parents; tribal-exclusive jurisdiction under ICWA cannot be invoked where the proceeding is not one of ICWA’s defined “child custody proceedings.” Second, when both a New York court and a tribal court can assert authority, the UCCJEA’s home-state framework governs priority, and New York need not yield to a tribal court whose jurisdictional basis is not in “substantial conformity” with UCCJEA standards.

The opinion also reinforces procedural due process in custody adjudication: nonemergency custody transfers require a hearing, and appellate courts will intervene where a trial court attempts to short-circuit jurisdictional review or best-interests adjudication. The ordered return of the child and reassignment to a new judge underscore the Third Department’s insistence on both correct jurisdictional analysis and the appearance—and reality—of fair process.