with whom
CARPENETI, Justice, joins, dissenting in part.
I respectfully dissent from Part IV.B of the court's decision today holding that the Indian Child Welfare Act (ICWA) applies in the present case. The court is correct to discuss J.W. v. R.J.1 at length but misinterprets its precedential value for P.C., grandmother of J.P.C. is placed in substantially the same position as was the stepfather in J.W. *674Thus, the case cannot be distinguished in the manner that the court suggests. Because P.C. is an "Indian custodian" under the requirements of ICWA,2 there is no reason to favor awarding legal custody to D.J., the child's father, over P.C. In other words, P.C. and D.J. are on equal footing with regard to the custody of J. Consequently, the heightened proof requirements found in ICWA do not apply. I would apply the court's decision in J.W. to the present case and affirm the superior court's determination that ICWA does not apply to this case.
The court does not dispute the assertion that P.C. is J.'s Indian custodian. ICWA defines an "Indian custodian" as "any Indian person who has legal custody of an Indian child under tribal law or custom or under State law or to whom temporary physical care, custody, and control has been transferred by the parent of such child."3 By virtue of his birth to a mother who is a member of the Devil's Lake Sioux Tribe and a father who is a member of the Native Village of Barrow, J. is an Indian child under ICWA.4 P.C. is an Indian member of the Spirit Lake Sioux Tribe. J.'s mother gave P.C. physical custody of J. on December 1, 1995; J. has been in the care of P.C. ever since. Consequently, P.C. is J.'s Indian custodian because she is herself Indian and has been granted physical custody of J. by his mother.
Because P.C. is J.'s Indian custodian, she has the same right to legal custody of J. as D.J. does. In J.W., we held that a parent and Indian custodian are treated as "co-
equals" under § 1912(e) of ICWA.5 Though § 1912(f) addresses termination of parental rights, as opposed to the requirements for foster placement found in § 1912(e) that were litigated in J.W., the only other difference between the wording of the statutes is found in the standard of proof.6 The majority interprets § 1912(f) to create an asymmetry in parental rights not found in § 1912(e).7 It concludes that § 1912(F) requires a finding only that continued custody by D.J. would likely result in serious emotional or physical damage to J. but that under § 1912(e) this question would have to be asked of both parties.8 This interpretation is incorrect. Just as in § 1912(f), § 1912(e) establishes the requirements for depriving an individual parent of custodial rights over a child. Contrary to the portrayal by this court in the present case, § 1912(e) is not the balancing of interests that might otherwise take place between two presumed-equal parties in a custody hearing. Instead, as J.W. held, this ultimate determination of custody between two parties claiming parental rights is to take place not under ICWA but under state law.9
In J.W., we held that in custody disputes between a parent and a stepparent, Alaska law gives preference to the custodial rights of a parent; the "best interests" of the child standard found in custody disputes between two parents does not apply.10 We could only reach this holding in J.W. under the presumption, to be determined upon remand, that the stepfather was the child's Indian custodian and so state law rather than ICWA applied.11 We held that if the trial court
*675determines on remand that the stepfather is the child's Indian custodian, then § 1912(e) will not apply and the superior court should instead apply the Alaska standard for custody disputes between parents and non-parents. If he is not deemed to be the Indian guardian, § 1912(e) would apply and the stepfather would have to show "by clear and convincing evidence" that continued custody of the child by the father would likely result in harm to the child.12 This contradicts the court's conclusion in the present case that this question would only be asked of D.J. in a hearing under § 1912(f) but of both parties in a hearing under § 1912(e6).13 The determination of likely future harm is asked in both instances only of the party whose rights are being terminated. In other words, J.W. cannot be distinguished from the present case in the way suggested by this court.
The court today concludes that there is a further asymmetry between § 1912(e) and § 1912(f) in the effect that each statute has on the parental rights of the parties involved. The court reasons that regardless of who prevailed in a § 1912(e) hearing in J.W., "the court would be effecting a removal of 'an Indian child from its parent or Indian custodian,'"14 whereas in a hearing for termination of D.J.'s parental rights, the parental rights of P.C. are not adversely affected. Again this court conflates state custody processes with those required by ICWA. The finding that "the continued custody of the child by the parent or Indian eustodian is likely to result in serious emotional or physical damage to the child"15 focuses on the future parental rights of only one parent in both § 1912(e) and § 1912(Ff). The statutory requirements of ICWA do not explicitly address the balancing of parental rights between two parties, which can only take place under state law, but rather establish the standard of proof for adjudication, be it of foster placement or permanent termination of parental rights.
Both § 1912(e) and § 1912(F) result in removal of a child from unrestricted access by the parent. Under 25 U.S.C. § 1903(1)6), "foster care placement" is defined as "any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated." This section therefore contemplates the deprivation of parental rights, albeit in a less severe form than outright termination of parental rights. However, there is nothing in the language of § 1912 to suggest that foster care placement is to have any different procedural treatment than the termination of parental rights Indeed, both are treated the same under $ 1912(d), which requires the state "to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family" for both foster care placement and the termination of parental rights. By implication, if the two statutes are to be treated the same procedurally, there should be no difference in the way the parental rights derived from them are construed.
Contrary to today's holding by the court, the parental rights of P.C. are no less deprived by losing a § 1912(f) hearing if ICWA is found to be applicable, than would be the rights of the stepfather in J.W. under ICWA § 1912(e) if he is not able to show that he is the child's Indian guardian. The court notes that ICWA addresses legal custody and that P.C. does not have legal custody of J.16 Yet,
*676it was precisely legal custody of the child that was at issue in J.W.17 Consequently, losing her case would deprive P.C. of her rights to legal custody in just the same way as the stepfather's legal custody rights would be affected in J.W. In short, there is no analytical difference between § 1912(f) and § 1912(e) that would preclude application of J.W. to the present case.18
We held in J.W. that "[nlo section of ICWA indicates that Congress preferred a parent to an Indian custodian if the parent did not previously have physical custody."19 The language of § 1912(f) requires a finding of likely damage to the child if "continued custody" is allowed to the parent or Indian custodian.20 The use of the word "continued" implies some pre-existing relationship between the parent or Indian custodian and the child, though not necessarily physical custody at the immediate time of the custody hearing. This is the interpretation implicitly adopted in J.W. Inasmuch as ICWA is meant "to promote the stability and security of Indian tribes and families,"21 there must be reasonable grounds for believing that the parental relationship is worth promoting. Limiting the application of this exception to ICWA to disputes between a parent and an Indian custodian ensures that the child's Indian her-
itage will be protected and thus brings these situations within the goal of ICWA to promote Indian tribes. The foeus of the exception to ICWA that this court established in J.W. is not so much cultural as it is an examination of the specific parent-child bond at issue. This court should follow J.W. to hold that where a parent has no pre-existing relationship with the child, other than some default form of legal custody,22 that parent cannot be entitled to the protections of ICWA so long as the child resides with an Indian custodian.
D.J. does not have the type of parental relationship that ICWA was meant to protect. It is certainly the situation that D.J. has not previously had physical custody of his son. D.J. has never resided with J. and has had only sporadic contact with J., never for more than forty-five minutes. Furthermore, D.J. will remain incarcerated for the entirety of J.'s minority. As we pointed out in J.W., the preference in § 1912(e) is for custody "by the parent or Indian custodian" and does not differentiate between the two.23 The same language is contained in § 1912(f), implying that there is equal preference expressed there as well for both a parent and an Indian custodian. P.C. has been the Indian custodian for J. since he was three and *677had helped care for him practically since his birth, The best way to further ICWA's expressed purpose "to promote the stability and security of Indian tribes and families"24 in the present case is to instruct the trial court on remand to consider as equal, at least for the purposes of ICWA, the legal rights to custody of both P.C. and D.J. This was the conclusion reached in J. W.;
The purposes behind ICWA are consistent with restricting § 1912(e) to disputes between persons having favored status-parents and Indian custodians-and others who are neither parents nor Indian eusto-dians. There would appear to be no logical reason consistent with the statutory purpose to apply § 1912(e) in a contest between two equally favored contestants. We therefore hold that if the stepfather proves on remand that he is S.R.'s Indian custodian, § 1912(e) will not apply and the superior court should instead apply the Alaska standard for custody disputes between parents and non-parents. ... [25]
A decision holding that ICWA does not apply to situations where the parent has no pre-existing significant relationship with the child is consistent with decisions in other Jurisdictions. The Supreme Court of Kansas held in In re Adoption of Baby Boy L. that ICWA did not apply where the child in dispute had "never been in the care or custody of the putative father."26 The court concluded that the intent of Congress was the protection of Indian families and that the father, due to his lack of contact with the child, did not constitute an Indian family meriting protection.27 The Missouri Court of Appeals, following Baby Boy L., held in In re S.A.M. that a father who did not even know of the existence of his daughter until she was seven years old could not invoke ICWA because he did not have the "continued custody" of his daughter that ICWA was meant to protect.28 In a case with a fact pattern quite similar to the present one, a Michigan court held that ICWA did not apply; consequently, active efforts at rehabilitation did not need to be made under § 1912(d), where the children were living with their Indian mother and where the father did not engage in parenting the children.29 The father in that case had
*678moved away and had not provided any financial support for the children for almost two years.30 Furthermore, at the time of trial the father was imprisoned for four to ten years and could not participate in the upbringing of his children.31 As such, the family breakup that ICWA was meant to prevent "was already a fait accompli."32
These cases from other jurisdictions, along with our holding in J.W., support the conclusion that D.J. cannot invoke the protections of ICWA in his custody dispute with P.C.33 D.J. has never been a parent to J. Furthermore, his incarceration prevents the possibility that he will be a part of J 's life prior to J. reaching maturity. J. currently resides with P.C., the Indian custodian who has cared for J.'s needs for the last several years. Under these circumstances, D.J.'s right to legal custody of J. falls outside of anything that Congress could have meant to protect in passing ICWA. Consequently, the superior court decision to terminate D.J.'s parental rights on state law grounds should be affirmed.
. 951 P.2d 1206 (Alaska 1998).
. 25 U.S.C. § 1903(6).
. Id.
. See 25 U.S.C. § 1903(4).
. 951 P.2d at 1214-15.
. Compare 25 U.S.C. § 1912(e) ("No foster care placement may be ordered in such proceeding in the absence of a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.") with 25 U.S.C. § 1912(f) ("No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.").
. Op. at 671.
. Op. at 671-72.
. 951 P.2d at 1215. .
. Id. at 1211.
. See id. at 1215 n. 17 ("It is not inconsistent to apply the state law parental preference here, because we are simply reading the § 1912(e) standard to be inapplicable; ICWA does not *675clearly express a policy that forbids the state from applying a preference for the claim of the biological parent whose rights have not been terminated by the child's tribe."). ICWA gives parents and Indian custodians custodial protections in addition to those contained in state law: It requires proof of clear and convincing evidence that continued custody by a parent or Indian custodian would likely result in harm to the child.
. Id. at 1214.
. Op. at 671-72.
. Op. at 671 (quoting 25 U.S.C. § 1903(1)G)).
. 25 U.S.C. § l_912(e) & (B.
. Op. at 672. See also In re Adoption of a Child of Indian Heritage, 111 N.J. 155, 543 A.2d 925, 937 (1988) (refusing to limit ICWA to cover only parents who have had actual physical custody of an Indian child); J.W., 951 P.2d at 1213 (and the *676cases cited therein) (holding that ICWA refers to legal rather than actual physical custody).
. 951 P.2d at 1209, 1213.
. The majority asserts that "(ilt is highly unlikely that Congress intended 'Indian custodian' as used in § 1912(f) to refer to the party petitioning for termination." Op. at 673. No attempt is made to explain why this statement would not also apply to § 1912(e), in contradiction to the holding in J.W. If the court intends to overrule J.W. io some extent, it should state this clearly.
. 951 P.2d at 1215.
. 25 U.S.C. § 1912(f) (emphasis added); see also In re S.A.M., 703 SW.2d 603, 607 (Mo.App.1986) ("If it be assumed, arguendo, that appellant has acknowledged paternity and thus is a 'parent,' the instant facts would not support the determination required by § 1912(f) for the obvious reason that appellant has never had custody of S.A.M., so it would be impossible for appellant's custody to 'continue.' ").
. 25 U.S.C. § 1902.
. A natural parent will always have legal custody of a child absent legal termination of those rights. See In re Adoption of K.S., 543 P.2d 1191, 1194 (Alaska 1975). The parental rights adjudicated under ICWA always involve legal rights. J.W., 951 P.2d at 1213. Therefore, J.W. specifically addresses physical custody as the central determinant in the applicability of ICWA to a dispute between a parent and an Indian custodian because a dispute over legal custody is presumed. See 951 P.2d at 1215. Certain cases have interpreted the phrase "continued custody" as referring to legal rather than physical custody. See In re Adoption of a Child of Indian Heritage, 111 N.J. 155, 543 A.2d 925, 938 (1988); In re Adoption of Baade, 462 NW.2d 485, 490 (S.D. 1990). This is correct to the extent that ICWA addresses the termination of physical custody. However, because legal custody always exists prior to an ICWA hearing to terminate legal custody, the use of the word "continued" would be superfluous were it not to apply to some sort of pre-existing physical or emotional bond between parent and child.
. 951 P.2d at 1214-15.
. 25 U.S.C. § 1902.
. 951 P.2d at 1215 (citing 25 U.S.C. § 1921 (stating that the higher standard of protection between federal and state law is the applicable one)).
. 231 Kan. 199, 643 P.2d 168, 174, 176 (1982).
. Id. at 172, 175. This finding is different from the "preexisting Indian family" exception adopted in some states. That exception is applied to say that where the parent whose parental rights are in dispute does not have a strong connection to the Indian tribe or their customs, the parent cannot invoke the protections of ICWA. See In re Adoption of Baby Boy D., 742 P.2d 1059, 1064 (Okla.1985) (holding ICWA inapplicable where the child has never resided in an Indian family and has a non-Indian mother); Rye v. Weasel, 934 SW.2d 257, 261-62 (Ky.1996) (holding that the "existing Indian family" exception was not judicially created but in fact reflected Congressional intent). This court explicitly rejected the "existing Indian family" exception in In re Adoption of T.N.F., concluding that the doctrine undercuts the intention of Congress to protect Indian tribes. 781 P.2d 973, 977 (Alaska 1989) (citing Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 49, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989)). Other states concur with Alaska in its rejection of the "existing Indian family" exception. See, eg., State ex rel. D.A.C., 933 P.2d 993, 1000-01 (Utah App.1997) (declining to adopt the "judicially-created" "existing Indian family" exception); In re Baby Boy Doe, 123 Idaho 464, 849 P.2d 925, 931 (1993) (concluding that Holyfield "effectively undermined" the application of the "existing Indian family" exception); In re Adoption of Baade, 462 N.W.2d 485, 489-90 (S.D.1990) (holding that Holyfield precludes a focus only on existing families and that ICWA applies as long as the child is an "Indian child"). I am not advocating either an overturn of In re Adoption of T.N.F. or the establishment of the "existing Indian family" exception in Alaska. Denial of the applicability of ICWA to D.J.'s claims neither requires nor creates the exception.
. 703 S.W.2d 603, 605, 607-09 (Mo.App.1986).
. In re Dougherty, 236 Mich. App. 240, 599 N.W.2d 772, 775 (1999). ICWA § 1903(1) specifically exempts divorce proceedings from the requirements laid out by the statute. In Dough-erty, the two parents were in the process of getting a divorce, but it had not yet been finalized. However, the court did not use the logic of ICWA being inapplicable to custody disputes arising from divorce, so the holdings as to the parental deficiencies of the father are still applicable to the present case.
. Id.
. Id.
. Id.
. Even if this court applies ICWA to the present case, I question the conclusion in Part IV.B(2) that the requirements of ICWA were not met. First of all, it is not clear, in light of the statutory language of AS 47.10.086, that the State is required to provide the remedial services outlined in 25 U.S.C. § 1912(d) to a parent who will be incarcerated for the remainder of the child's minority. Second, the majority's contention that the superior court contemplated only physical and not legal custody in its summary judgment motion against D.J. seems to ignore significant portions of the record to the contrary. Finally, it is possible to conclude that D.J. waived the expert testimony requirement in 25 U.S.C. § 1912(F) when he failed to object, though further inquiry would be necessary into the issue of whether or not D.J. had a reasonable opportunity to raise this objection. See In re Riva M., 235 Cal.App.3d 403, 286 Cal.Rptr. 592, 597-98 (1991) ("there is no hint from the statutory language or cases construing it that the procedural standards [in ICWA] are constitutionally compelled").