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Woman in Custody Case Flees to Native Reservation

The Associated Press reports that a retired high school teacher has fled into the Northern Cheyenne Indian Reservation in Montana in order to avoid sharing custody of her two grandsons with her son-in-law.

Patsy Fercho and her husband cared for their daughter’s two sons after their daughter, who had allegedly been facing addiction and legal problems, handed over custody to them under the guidance of Montana’s Division of Child and Family Services. After three years, Patsy Fercho’s son-in-law, the boys’ father, was awarded custody by District Judge Richard Simonton. Patsy Fercho claimed that the boys should not be relinquished to their father’s care, alleging that the boys’ father was abusive. However, the judge’s order continued to stand, and when Fercho refused to turn the boys over to their father, Judge Simonton issued a $25,000 warrant for her arrest.

In response, Fercho allegedly left her husband and took the boys 180 miles away to the Northern Cheyenne Reservation. While Fercho is not a tribal member, her (adopted) daughter and therefore the boys are members, and reservation authorities granted their entrance as well as emergency guardianship and custody of the children to Fercho on the grounds that they allegedly faced a danger of bodily injury.

Tribal Courts and State Law

Tribal courts exist parallel to state courts. By law, tribal courts may intervene in child custody cases, and federal law requires state courts to recognize tribal court orders. Therefore, to resolve the custody conflict, it must be decided which court has jurisdiction over the case; the boys’ father will need to appeal the tribal court’s ruling through the tribal court system, as Fercho will need to appeal Judge Simonton’s order through the state court system. Eventually, it is possible that a federal court will be needed to resolve the issues of federal law involved.

The case highlights two different points of contention in state family law. First, Montana’s Division of Youth and Family Services has been receiving numerous complaints from critics, who claim that siblings are often split up, children are being placed with abusive parents, licensed experts’ opinions on cases are being ignored, and misconduct and abuse reports are going uninvestigated. Second, the case is bringing light to instances of custody evasion through invoking tribal privileges. Maylinn Smith, associate professor and co-director of the Indian Law Clinic and the University of Montana, claims that Fercho’s flight to a reservation to avoid giving up custody is not actually an uncommon tactic, particularly in cases in which one family member is a tribal member but others are not.

Governor Steve Bullock in September announced a new initiative to improve Montana’s Division of Youth and Family Services. He also announced the development of a new commission to study the child protective system in the state and to provide recommendations for new oversight provisions.

Custody cases can be highly contested. But at Schwartz | White, our experienced and qualified Boca Raton family law attorneys are ready to fight for your custody rights. Call 561-391-9943 to speak to an experienced family lawyer today.

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