Grandmother in custody case, boys hide on Indian reservation

HELENA, Mont. (AP) – A retired high school government teacher is hiding from the law, caught in a legal limbo between state and tribal courts as she tries to gain custody of her grandsons.

A $25,000 warrant has been issued for Patsy Fercho’s arrest for custodial interference involving the two boys, who are members of the Northern Cheyenne Tribe. The children lived with Fercho and her husband for three years in the eastern Montana town of Glendive before District Judge Richard Simonton ruled the boys’ father in Minnesota should have custody.

Fercho is not a tribal member but has taken the boys 180 miles away to the Northern Cheyenne reservation, where she is not under the state court’s jurisdiction.

“I have never in my wildest dreams thought I’d be in this predicament,” Fercho said.

The boys’ mother – Fercho’s adopted daughter – is a tribal member. She was battling addiction and legal problems and was unable to care for her sons when the Division of Child and Family Services got involved.

Fercho said she and others, including social workers, argued the boys should not be placed with their father because of abuse allegations. But after a hearing late last year, Simonton ruled they should.

The father has not been charged with any abuse, and his attorney, Rich Batterman, declined to comment, saying it was a confidential child custody case. Under federal law, a person has the legal right to parent their children unless they are found unfit.

While seeking custody of the boys in Minnesota, Fercho also sought an order in Northern Cheyenne tribal court. A tribal judge granted her immediate emergency guardianship and physical custody after finding the children were in danger of bodily injury.

Fercho took custody of the boys – now 8 and 5 – and returned to Montana.

On Oct. 5, the children’s father obtained an emergency order from Simonton requiring Fercho to return the children. Simonton signed the arrest warrant two days later.

Fercho, who feared charges would be filed against her, took the boys to the southeastern Montana reservation, said her attorney, Roberta Cross Guns.

During a hearing Friday, Simonton said his order to return the boys would stand, despite Cross Guns’ argument that federal law requires state courts to recognize tribal court orders. The law also allows tribal courts to intervene in child custody cases.

“Why would this judge insist on having Montana take any kind of jurisdiction when we have a valid order?” Cross Guns asked.

Maylinn Smith, associate professor and co-director of the Indian Law Clinic at the University of Montana, said cases such as Fercho’s happen frequently, especially when one parent is a tribal member and the other is not.

Ultimately, a decision must be made on which court has jurisdiction, she said.

Cross Guns said she is filing an appeal with the Montana Supreme Court challenging Simonton’s decision to take jurisdiction. The father would have to appeal the tribal court’s ruling with the tribal appellate court.

“These are the ones that get really complicated, real fast,” Smith said Monday. She has seen cases in which a tribal court made a ruling and the non-Indian parent then sought custody in state court, setting off the same type of jurisdictional battle.

A federal court might end up deciding the case, Smith said.

The case comes as Montana’s Division of Child and Family Services faces complaints from families of children in the system, including allegations of siblings being split up and children being placed with abusive parents. Critics also claim reports of abuse go uninvestigated, and recommendations from licensed counselors are ignored.

Fercho has joined other grandparents, counselors and others in picketing Child and Family Services offices around the state seeking fundamental change within the agency, including better training.

The agency hasn’t commented on specific cases due to confidentiality laws. But last month, Gov. Steve Bullock announced his Protect Montana’s Kids initiative to improve the effectiveness and oversight of Child and Family Services. The measure includes hiring 33 caseworker aides, improving their training and supervision, and upgrading the computer system. The plan also calls for creating a team to review incidents of serious injury or death of children involved with the agency and to recommend any necessary policy changes.

Bullock also created a commission to study the child protective system and recommend any improvements or legislative changes.