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Date: 08-16-2022

Case Style:

Valerie L. Calf Boss Ribs v. Daniel J. Cornelius

Case Number: DA21-0441

Judge: Dierk Sandefur

Court: Supreme Court of Montana on appeal from the District Court, Glicier County)

Plaintiff's Attorney: "Dawn Gray, Blackfeet Legal Department, Browning, Montana Kelly M. Driscoll, Attorney at Law, Missoula, Montana

Defendant's Attorney:

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Description: Cut Bank, Montana, family law lawyers represented the parties seeking custody on a child of the relationship between the parties.

¶4 In October 2020, Father picked up L.D.C. from Mother in Browning. He did not return the child for Mother's next scheduled parenting time, however, and instead made multiple failed attempts to get Mother to submit to mediation. In February 2021, Mother responded by filing a new state court contempt motion against Father. He immediately filed a response in opposition and his own motion for amendment of the existing state court parenting plan.

¶5 At the ensuing state court hearing on May 17, 2021, Father testified to his various concerns regarding Mother's alleged substance abuse, non-compliance with various parenting plan provisions, her contraction of Covid-19 in regard to scheduled parenting time, and the severity of the Covid-19 outbreak on the Blackfeet Reservation. As additional justification for his failure to return L.D.C. to Mother, he cited national health
guidelines discouraging travel during the Covid-19 pandemic. In regard to his motion for a parenting plan modification, Father asserted that, as of January 2019, Mother had been temporarily staying at a multitude of places, been only intermittently employed, been difficult to contact due to her repeated phone number changes, and failed to keep him informed as required by the parenting plan. Father also testified that Mother called him at inappropriate times for harassing purposes, spoke of him in derogatory terms in front of L.D.C., failed to inform him of other people living in the home with her and L.D.C., failed to provide regular four-day-a-week phone contact with L.D.C., failed to return the child's clothing and personal effects when transferring custody, and refused mediation and third-party counseling-all allegedly in violation of the existing parenting plan.

¶6 Father further testified that, during telephone/video conferences with L.D.C., Mother was "not coherent," "clearly intoxicated or on drugs," had slurred speech, bloodshot eyes, and stumbled on words. He testified that in July 2019, as he was picking up L.D.C. from her, Mother "ripped" the child "out of [his] arms," avoided the responsive involvement of the Blackfeet tribal police, remained at large with the child without contacting him, and did not return the child until 30 days later. He testified to another similar incident that occurred in July 2020 in Browning when Mother entered his vehicle without permission and forcefully removed L.D.C. from his car seat, resulting in her arrest by the Blackfeet tribal police. Father described both incidents as "traumatic" to the child. Father's current girlfriend testified that she witnessed the July 2020 incident and corroborated Father's account. She also testified to witnessing Mother's slurred speech and efforts to belittle Father during calls with L.D.C. The girlfriend testified that the child had "very negative . . . reaction[s] after these phone calls" and became highly agitated as a result of observing Mother "yell at his father in front of him."

¶7 Father's girlfriend further testified to L.D.C.'s positive development and enjoyment of life on Father's farm, where Father is teaching him the Oneida Indian language. Father ultimately moved the Standing Master to amend the parenting plan to require Mother to receive substance abuse treatment, at Father's expense. In that regard, he testified that although Mother had previously obtained a substance abuse report from a provider on the Blackfeet Reservation (Crystal Creek) opining that she did not need substance abuse treatment, she tested positive for methamphetamine use shortly thereafter. Mother testified at the hearing, and provided third-party witness testimony, in opposition to Father's motion and testimonial assertions.

¶8 On May 21, 2021, the Standing Master entered a written judgment amending the parties' parenting plan regarding L.D.C., along with a corresponding amended parenting plan.[1] The amended parenting plan largely adopted Father's proposed plan and placed L.D.C. exclusively in Father's custody and care, subject to Mother's specified visitation, until she:

submits to a Chemical Dependency Evaluation by a Certified Chemical Dependency Counselor at a facility other than Crystal Creek Lodge, and that in the event that the evaluation comes back as having chemical dependency
issues, that [she] follows any and all recommendations resulting from the evaluation including but not limited to in-patient treatment.

In support of the amended parenting plan, the Standing Master found that Mother continued to engage in substance abuse, had been arrested following the violent July 2020 incident, and, in violation of the prior parenting plan, had refused mediation, failed to establish a permanent residence, maintain employment, and failed to maintain a consistent contact phone number since January 2019. The Standing Master thus found a substantial change in the circumstances of the child and that amendment of the prior parenting plan was in the best interests of the child.

¶9 That same day, Mother filed a state court motion for "transfer" of jurisdiction over the matter to the Blackfeet Tribal Court on the asserted grounds that the District Court lacked jurisdiction over her and the child and that Glacier County, Montana, was an inconvenient state court forum. On May 24, 2021, in conjunction with her state court motion to "transfer" jurisdiction, Mother filed a parallel child custody petition, and corresponding motion to accept jurisdiction, in the Blackfeet Tribal Court.

¶10 On June 11, 2021, the Standing Master issued a written order denying Mother's motion to "transfer" jurisdiction to the Blackfeet Tribal Court. On June 16, 2021, Mother filed an objection and motion for District Court review of the Standing Master's May 2021 parenting plan judgment and June 2021 denial of her motion to "transfer" jurisdiction to the Blackfeet Tribal Court. Following a hearing on July 8, 2021, and by separate written orders filed August 10, 2021, the District Court affirmed the Standing Master's May 2021 parenting plan judgment and subsequent June 2021 order denying Mother's motion to "transfer" jurisdiction over this matter to the Blackfeet Tribal Court. Mother timely appeals.

Outcome: ¶49 Based on the Standing Master's pertinent findings of fact and supporting evidentiary record presented by the parties, we hold that, as of May 2021, the District Court, through its Standing Master, had continuing state law child custody jurisdiction under § 40-7-202(1), MCA, to modify the parties' prior state law parenting plan regarding L.D.C., and conversely, that the Blackfeet Tribe, through its tribal court, did not have exclusive child custody jurisdiction vis-a-vis that continuing state jurisdiction. We hold further that the Standing Master did not abuse his discretion in exercising the District Court's concurrent continuing state law jurisdiction under § 40-7-202(1), MCA, in May 2021, nor in failing to earlier decline exercise of that jurisdiction as an inconvenient forum under the criteria specified in § 40-7-108, MCA, as tailored in Skillen and Bertelson to the state/tribal court child custody jurisdiction dynamic. We last hold that the Standing Master did not erroneously amend its prior state law parenting plan without the showing of a substantial change in the circumstances of the child required by § 40-4-219(1), MCA.

¶50 Affirmed.

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