Read Sharing Our Stories of Survival: Native Women Surviving Violence Online
Authors: Jerry Gardner
Victims may gain significant advantages in tribal court custody cases when they allege domestic violence in their petitions. As a general rule, victims should state in their custody petitions that domestic violence has been perpetrated against the victim by the abuser and should supply specifics of the violence (injuries, arrests, hospitalization, and so forth). Victims should also state in their pleadings whether the violence occurred in the presence of the children, while they were pregnant, or against the children.
In addition to considering whether domestic violence has occurred in the relationship, tribal courts also consider which parent has served as the children’s primary caretaker when making custody determinations. A primary caretaker is the person who has physically cared for the children the majority of the time. Primary caretaking duties can include providing childcare, taking children to doctors, taking the children to and from school, bathing, feeding, and dressing the children, and so forth.
Many tribal courts decide custody along matrilineal or patrilineal lines. For example, the matrilineal Hopi Tribe traditionally gives custody of the children to the mother. If she is unfit or unable to care for the children, custody is then given to the father. If he is unfit or unable to care for the children, custody is then given to the mother’s female relatives. Similarly, in some patrilineal tribes it may be difficult for the mother, even if she and/or the children are victims of domestic violence, to obtain custody.
Victims should also suggest a reasonable schedule and plan for visitation in their pleadings. Native victims of domestic violence should be aware that they are at an increased risk of injury when custody of the children is exchanged. It may be important for the woman’s safety to request custody exchange through a third party such as social services or a mutually trusted friend or relative. Usually third-party custody exchanges are performed in public places with staggered drop-off and pick-up times for the victim and abuser. This may reduce the chances that the victim and abuser will meet face to face and may increase the victim’s safety at this dangerous time.
Victims can also request in their petition that the court order the opposing party into drug or alcohol treatment before they are allowed visitation with the children. Tribal courts can order an abuser to successfully complete parenting classes and/or batterer reeducation classes prior to being allowed visitation with the children.
In divorce cases, the petition for divorce should also contain a list of property acquired during the marriage (“marital property”), a list of each party’s separate property, and a list of separate and mutual debts. Generally, property or debts that each party possessed before the marriage are considered separate property. Property that is inherited or given by gift to one of the parties may also be considered separate property. All property otherwise acquired during the marriage is usually considered joint or marital property. However, tribal law, custom, and tradition may define “separate” and “marital” property and debts quite differently.
Property can include houses, land, livestock, furniture, money, retirement accounts, vehicles, stocks, jewelry, and other items. The victim should tell the court in her petition how she would like the property to be divided. She may also ask the court to issue a preliminary injunction forbidding both parties from disposing of any joint marital property before the court can formally divide the property. This may help to prevent an abuser from “looting” or disposing of all of the property to punish the victim for leaving.
Victims may petition the court to allow them to retain exclusive use of the family home. However, problems can arise when the victim is non-Indian or a member of a different tribe, the lease to the couple’s reservation home is held under the abuser’s name, or the family is residing on the abuser’s reservation. Some Tribal Housing Authorities allow a domestic violence victim to remain in a tribal home leased to a tribal member, especially if she has children who are enrolled or eligible for enrollment with the tribe.
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Victims seeking child or spousal support from tribal courts should include wage and employment information for themselves and for the abuser in the petition. Victims who do not know the exact wages of their abuser should make a good faith estimate of their abuser’s wages and submit that estimate to the court. They should also tell the court that they have submitted an estimate of the wages.
Many tribal courts have adopted formal child support guidelines. On the most basic level, these guidelines help the judge to decide how much money the noncustodial parent must pay to the custodial parent. The primary factors in many of these child support guidelines are the incomes of the parties, the number of children involved in the action, and the amount of physical custody or parenting time each party has with the child.
Courts must carefully weigh the abuser’s unemployment or underemployment status. Underemployment means that the person has the ability to work full-time but chooses to work part-time. It can also include circumstances when the person intentionally works in a low-paying position when they have the ability and skills to work at a higher-paying job. Some tribal courts compute child support using minimum wage figures when an able-bodied abuser is unemployed.
Some tribal courts may order the victim to attend mandatory mediation or couples counseling with their abuser during divorce or child custody actions. This practice can endanger victim safety and should not be used. During mandatory mediation or couples counseling the victim is forced to face her abuser. She may be intimidated by the batterer’s continuing tactics of abuse into relinquishing demands in her case. He may attempt to follow her after the hearing to locate her current residence or to perpetrate new acts of violence against her. There is often great discrepancy between an abuser’s public and private behavior. Many abusers know how to terrorize their victims with subtle words and gestures that may go undetected by others in the room. A victim may appear to be hysterical and irrational to a court-appointed mediator while the abuser may appear calm and rational. Abusers may use court-mandated mediation sessions as opportunities to regain control over the victim or to terrorize her. True mediation requires a level playing field between the parties. Domestic violence is a pattern of power and control. In cases of domestic violence there is always an uneven power differential.
The presence of a victim advocate in the courtroom can help provide important support for the victim throughout the legal proceedings, especially if she is unrepresented. It can be helpful for the victim to “practice” testifying and telling her story prior to the actual court date. Effective testimony by victims of domestic violence includes a clear and concise history of the abuse. Persuasive testimony of the abuse includes information about the type of abuse, the locations where the abuse occurred, a description of any injuries, and a listing of others who witnessed the abuse or injuries. Victims may also be able to introduce evidence of the abuse, such as photographs of their injuries, medical records, school records for the children, and police reports.
Sometimes expert witnesses are used in tribal court to explain the dynamics of domestic violence, lethality risk factors for the victim, self-defense claims of the victim, the effect of domestic violence on children, and other areas. An expert witness is any person who has a greater knowledge of the subject matter than the average layperson. Victim advocates and law enforcement officers with specialized domestic violence training can often qualify as expert witnesses in tribal court. The use of an expert witness in a tribal court custody, support, or divorce action can greatly assist a Native victim in fully presenting her claims to the court.
Enforcement of Tribal Court Custody and Support Orders
Abusers who violate tribal court custody, support, and visitation orders can be held in contempt of court for failure to comply with a valid court order. Some tribal codes include criminal penalties for willfully disobeying a tribal court order. Tribal members and nonmember Indians of federally recognized tribes can be criminally prosecuted in many tribes for failure to comply with a court order. Non-Indians cannot be criminally prosecuted for failure to comply with a tribal court order.
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Garnishment
proceedings are one means of enforcing a tribal court support order against an abuser who refuses to pay. Garnishment is usually an involuntary procedure whereby the opposing party’s employer deducts the amount of support from their wages before the employee receives his paycheck. The money is then remitted to the court.
Cases involving an abuser who works for the tribe or on the reservation are usually fairly simple to resolve. A victim or her attorney can usually provide a copy of the tribal court garnishment order to the employer and begin the garnishment process.
If the abuser works off-reservation, the victim must usually “domesticate” the order in state court by demonstrating to the state court that the garnishment order is a valid tribal court order. The victim must file a formal, written request with the state court and demonstrate that the tribal court had subject matter and personal jurisdiction over the abuser and that a valid support order has been issued. Generally, proof of subject matter and personal jurisdiction and the existence of a valid order are contained in the tribal court’s final order granting divorce, custody, and support. Under a federal law, the Full Faith and Credit for Child Support Orders Act, states must fully honor and enforce support orders issued by tribes or by other states.
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Notes
1
See
Williams v. Lee,
358 U.S.
217
(1959) at 220.
2
See
Whyte v
.
District Court,
140 Colo. 334, 346 P. 2d 1012 (1959), cert. denied, 363 US. 829 (1960).
3
See
Williams v. Lee.
4
See
Williams v. Lee.
5
See
In Re Marriage of Shane Colin Skillen,
287 Mont. 399, 956 P.2d I (Mont 1998),
Malaterre
v.
Malaterre,
293 N.W. 139, 1980 N.D. 240 (1980), and
Martinez v. County of La Paz,
152 Ariz. 300, 731 P.2d 1244 (1987 Ariz. App.).
6
See
In Re Marriage of Shane Colin Skillen,
287 Mont. 399, 956 P.2d I (Mont 1998).
7
See
White Mountain Apache Tribe v. Smith Plumbing
Co., 856 F. 2d 1301 (9th Cir. 1988)
8
See the residency requirements of the Uniform Child Custody Jurisdiction Act or Uniform Child Custody Jurisdiction Enforcement Act adopted by the state in question.
9
28 U.S.C. §1738A.
10
For a contrary view of the applicability of the PKPA to tribes, see an opinion of the Cheyenne River Sioux Tribal Court at
Eberhard v. Eberhard,
no. 96-005-A (Chy R. Sx. Ct. App. Feb. 18, 1997).
11
Cherokee Nation Judicial Appeals Tribunal v. Cherokee Nation,
No. JAT-01-13 3 (Nov. 26, 2002).
12
The Pascua Yaqui Tribe maintains this policy.
13
See
Oliphant
v.
Suquamish Indian Tribe,
435 US. 191, 98 S. Ct.
1011
, 55 L.Ed.2d 209 (1978).
14
28 U.S.C. §1738B.
Questions
In Your Community
Terms Used in Chapter 17
Exclusive:
Sole; excludes all others.
Garnishment
: A legal taking of the property or wages of another.
Paternity
: The legal determination of a man’s status as a father.
Pro se
: When someone represents him- or herself and appears in a legal proceeding without an attorney.
Tribal code:
The laws of the tribe.
The Deafness of Domestic Violence
Can you hear my fear when I stand in front of you,
the Judge, and lie?
what about when I say nothing at all?
If I wasn’t scared then I would talk
I would tell everything that’s true.
A lack of words becomes my downfall
and you take my abuser’s side.
Protection order denied!
Listen!
Listen when I say nothing at all
Listen when it sounds like a lie
Listen and understand
Educate yourself
and learn how domestic violence takes its victims by the hand
and makes them feel smaller than a grain of sand.
Listen and learn how victims’ fear of greater violence
keeps them silent, causes them to lie about the abuse
Listen before you choose.