Sarah Guy

10/14/15
FAM 411
Child Custody Analyzation
This particular custody dispute is between Patsy Fercho, grandmother of
the children in question, and an unnamed father. The dispute is over who should
have custody of two young boys, ages 5 and 8, who are members of the Northern
Cheyenne tribe. Fercho has had custody of the boys for three years after the boys
mother, Ferchos adoptive daughter, was found unable to care for them. Fercho,
family friends, and social workers advocated that the boys not be placed with
their father, due to allegations of abuse. At this time, Fercho sought for custody in
Montanas courts and the Northern Cheyenne tribal court. The tribal court
immediately granted Fercho custody after deciding that the boys were in danger
of bodily harm. Later, District Judge Richard Simonton granted custody to the
boys father and issued an emergency order for Fercho to return the children.
Two days later, Simonton issued a $25,000 warrant for the arrest of Fercho.
Fercho fled, taking the boys to the southeastern Montana reservation.
There are several perspectives at this point. One is of Fercho. Fercho is a
retired teacher who wants to be able to take care of her grandchildren. She
believes that if the boys are placed with their father, that they will be subjected to
abuse. She believes that she and her husband would be able to provide a better
home for the boys than they would have with their father. The father would have

a different point of view. At this point, the father has not been charged with
abuse. He would probably argue that it is irresponsible to base a child custody
decision on mere allegations. People will say all kinds of horrible things to keep
their children. Federal law states that a person has a legal right to parent their
children unless they are found unfit. Since the father has not been found guilty of
abuse, there is no reason to think that he is an unfit parent and custody should
logically be awarded to him. It is also worth mentioning that Fercho will be under
severe scrutiny because she ran and avoided the arrest warrant. In addition to
the two parties involved in this dispute, there are also two legal systems at work;
the tribal court system and the district court in Montana. The tribal court may
claim that their decision should hold for several reasons. First, the boys are both
considered members of that tribe. Second, the tribal court made its decision prior
to the Montana district court. Finally, federal law requires state courts to
recognize tribal court orders and it allows tribal courts to intervene in child
custody cases. Ferchos lawyer made this argument at a hearing with Simonton.
The district court might have a different point of view. I find their decision hard
to rationalize but it is possible that they will stick to the district court decision
because the father is not a member of the tribe and it is within his rights to be
able to parent his children unless he is found unfit. Without further evidence that
the father is abusive, there is no proof that he is unfit and the children should
default to his care. So, to summarize, Fercho and the tribal court are concerned
about the level of care that the children will receive and the honoring of the

tribal courts decision and the father and the district court are concerned with
upholding the fathers parental rights in the face of inconclusive evidence on his
ability to parent.
As of now, Roberta Cross Guns, Ferchos lawyer, is filing an appeal with the
Montana Supreme Court. Due to the intersection with the Northern Cheyenne
tribal code, it is possible that this may go to a federal court. At this time,
Montanas Division of Child and Family Services are facing many complaints such
as siblings being separated, children being placed in abusive homes, and licensed
counselors being ignored. Gov. Steve Bullock has announced plans to improve the
department.
I think that, if the state court takes this case, they will choose to give
custody of the two children to Fercho. They have several reasons for doing so.
Montana uses the following factors to determine child custody: the childs wishes;
the parents wishes; the mental and physical health of all involved parties; any
history of abuse; the childs adjustment to home, school, and community, the
needs of the child; the childs relationship with his/her parents, siblings, and
extended family members; and whether either parent has knowingly failed to
financially support a child. I can only speculate the wishes of these children, but
if a social worker has reason to believe their dad is abusive then it stands to
reason that they might not want to live with him. As each of these guardians want
the children to be in their own custody, the wishes of the parents do not really
belong here. Judging by the picture in the article, Fercho is still in a condition

where child rearing is within the realm of possibilities. In regards to history of

abuse, the father has allegations of abuse. Concerning the childs adjustment, the
two boys have been living with Fercho for the past three years so it would be
easier on them to stay with her and her husband still. We have no reason to
believe that either party is incapable of tending to the needs of the children.
Considering relationships with extended family, Fercho lives in Montana while
the father lives in Minnesota. These are far enough apart that one wont visit the
other often. However, the boys mother lives in Montana as well as their tribe.
They would be able to maintain these important relationships better from
Montana. As far as we know, neither party has knowingly failed to support the
children. That bring the score to eight to two in Ferchos favor. In addition to the
advantage given to Fercho in the child custody factors, she also has the tribal
court ruling on her side. Since the tribal ruling was made prior to the district
court decision and the federal ruling regarding deferring to these decisions on
child custody decisions was brought up at the district hearing, the ruling made by
Simonton should not stand. It violates policy and it places the children in a home
that is possibly unsafe. This decision would also be a win for those protesting that
Division of Child and Family Services and show that the governor was creating a
change in this system, so the ruling would generate public approval.

Works Referenced
Hanson, Amy Beth. "Woman in Custody Case Hides on Reservation with
Grandsons." Great Falls Tribune. A Gannett Company, n.d. Web. 14 Oct.
2015.
<http://www.greatfallstribune.com/story/news/local/2015/10/12/woman-cus
tody-case-hides-reservation-grandsons/73842914/>.