Federal Court to Hear ICRA Habeas Claim in Child Custody Case at Absentee Shawnee

Here are the materials in Rosser v. Rosser (W.D. Okla.):

DCT Order in Rosser

John Rosser Motion to Dismiss

Jennifer Rosser Opposition to John Rosser Motion

Tribal Judge Motion to Dismiss

Jennifer Rosser Opposition to Judge Motion

Complicated, ugly case, like so many family law cases. An excerpt:

As noted above, Plaintiff seeks two forms of relief. First, a writ of habeas corpus ordering the return of her daughter, K.T., and, second, a declaratory judgment determining the jurisdiction of the tribal court. 25 U.S.C. § 1303 provides that a writ of habeas corpus shall “be available to any person, in a court of the United States, to test the legality of his detention by order of an Indian tribe.” Although as a general matter courts will not use this statute to intervene in child custody determinations, the facts as alleged in this case warrant a departure from the usual practice. According to the allegations in Plaintiff’s Complaint, the tribal court has ordered custody of K.T. be awarded to a person who has no legal status to her. Thus, this case is distinguishable from the typical child custody dispute where the losing party is simply seeking a different court’s take on a custody determination between two parties.  Because Plaintiff has set forth allegations which state a plausible claim for relief under § 1303, Defendant Rosser’s Motion to Dismiss pursuant to 12(b)(6) will be denied.

This entry was posted in Author: Matthew L.M. Fletcher, Research, tribal courts and tagged , , , , . Bookmark the permalink.

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