34 Factors the Court must Weigh In Custody Matters Lente v. Notah, 3 Nav. R. 72 34 Factors the Court must Weigh In Custody Matters

The actual living or family situation of the child; Encouragement of the Navajo cultural upbringing of the child; Navajo custom and tradition, where appropriate to the case; The child's tribal enrollment situation and tribal benefits; The time the child has been in its present home; The ages of the child and persons who desire custody; Employment of the parties and income; Whether the individuals are absent from the home frequently; Arrangement for caring for children during absences; Dates of separations [sic] from the child; The date of divorce or the initial custody order; Prior divorces of the adults; Previous or present romantic or sexual involvement of he adults, including whether it happened while or while not married, and whether the child was aware of the involvement, whether it occurred in its presence and whether the involvement affected the child in any way;

Acts of cruelty, desertion, neglect, desertion or non-support toward the child; The relationship of the child with brothers and sisters or other children; The physical and mental condition of the child, including past and present illness, prior treatment history and hospitalization; The school history of the child, where applicable, including the child’s behavior, performance and grades; Any history of connection with social welfare agencies, including the reason for the connection and the findings by those agencies; Any behavior problems of the child, including emotional problems or physical disabilities; Juvenile Court history of the Child; The observations of neighbors and relatives about child’s situation; Contact and observation by clergymen or the child’s friends or adults who come into contact with it (e.g. social organizations, pow-wow activities, scouting);

The relationship to the paramour (lover) or new spouse of a party to the child; Condition and environment of the home and neighborhood of the parties; The emotional stability of the father, mother and other individuals directly connected with the child including, where it appears necessary, current psychological examinations and a review of past contacts with psychiatrists, psychologists and mental health workers; The education of the parties; The religion of the parties and their relation to religious training of the child; The race and culture of the parties; The drinking and drugs use habits of the parties as they might affect the child; The criminal history of the parties and individuals directly affecting the child, including the nature of offenses and time they occurred;

The desires of the child as to who he or she wishes to be with; Prior agreements of the parties as to the child’s custody; The arrangement the parties have made for the financial welfare of the child, including wills, trusts, savings accounts or insurance policies; The reasons of the parties (preferably given to the court in writing) why they feel they would be the best person to take care of the child and why the other party would not. Court: “[T]here are no fixed standards of what constitutes a substantial change of circumstances”; the same if true with the “best interests of the child” test. Trial court should consider competing factors in child custody; use the checklist.

Barber v. Barber, 5 Nav. R. 9 Change of Custody Dismissed pursuant to Rule 4 Default Judgment granted to Father

Court of Appeals issued Opinion Default Judgment for Failure to Appear for Trial: ==Once an answer on the merits is filed, a default judgment cannot be rendered for failure to appear at trial. ==BOP on appellee to prove a change of custody is necessary and in the best interests of the children. ==Reversible error.

Is District Court Order changing custody supported by evidence? ==Citing Lente, a “substantial change of circumstances must be alleged and the pleadings should show why a change of custody is better for a child as well as facts demonstrating a substantial change of circumstances”. ==There is “no evidence whatsoever to support the Court’s Order for a change of custody”. ==Reversed

Whether Court failed to act as parens patriae for the children. ==General Rule: Court must always act as parens patriae for minor children; that is, act as the “parent of the child” and act in their best interests especially where a change of custody is requested. ==Court failed to make findings as to whether a change of custody is in the best interest of the children which is nearly a “failure to act as a parent in the place of the parents for the minor children”. ==Reversible error.

Due Process Violation (ICRA) ==Children were removed from Mother’s custody via Navajo Police Officer; ==Children subsequently returned to Mother thus the issue is moot.

Pavenyouma v. Goldtooth 5 Nav. R. 17 “Split Custody” of 5 Children—an abuse of discretion??

Court of Appeals Decision Child Custody: ==“Split Custody” Order was improper ==Order was in effect, a modification of the prior custody order ==Lente procedure not followed (7 factors) of Appeals issued Order re ==Children live with Mother during school year and with Father summer months. ==Liberal access to and visitation during periods children with other parent.

Grass v. Yazzie, SC-CV-52-09 Court’s use of in camera testimony in a Change of Custody matter Court erred in modifying prior custody order without a showing of a substantial change of circumstances. Case remanded.

Mom filed Motion to Modify the Custody and Child Support Orders ==GAL recommended that children be “maintained in one household”. GAL’s second report stated “respect present environment and encourage parents to work cooperatively ==Court ordered children be brought to Final Hearing for in camera interviews ==Two years later, Court declared there was not sufficient evidence in 2007 to justify a change in custody yet changed custody after the in camera interviews in 2009 ==Appeal was based on use of the in camera testimony

Decision: ==Substantial change of circumstances required to modify prior child custody order. Platero v. Mike, 7 Nav. R. 130 ==Burden of Proof on requesting party ==GAL did not recommend a change in custody ==Court erred when it did not afford Father an opportunity to respond to new allegations revealed during in camera interview which by definition is confidential—the judge cannot reveal the details in court orders ==Case remanded so court can consider “overall circumstances”

PLATERO V. MIKE, 7 Nav. R. 130 Mother found in contempt for violating the visitation order and Court gave Father custody of the children as a result Court’s failure to follow proper procedure in modifying custody is grave error

Change of Custody ==Due process required ==No motion for change of custody was filed in this case and no facts alleged to show substantial change in circumstances ==Burden of Proof on moving party to show change is necessary ==One child had preference to live with Mother

==Not proper to entertain change of custody in the context of a contempt proceeding ==Award of attorney fees ($600 for 7 hrs work) is affirmed

Henderson v. Crownpoint Family Court, SC-CV-47-17 Egregious abuse of discretion and unlawful change in child custody Child custody was final in October, 2015 Order Motion before Court was Visitation

No Due Process Afforded to Mother ==No proper notice with opportunity to be heard extended to Mother pursuant to Lente ==Such notice should include there has been a substantial change in circumstances affecting current custody arrangement ==Motion before Family Court was for “Review Hearing Regarding Visitation” which did not include motion to change custody

==An order changing custody without notice is void and cannot be enforced (citing Lente) ==Court obligated to act as parent of child and to act in the best interest of the child (citing Barber) ==When faced with important matters, it is inappropriate to rush to conclusion … without explanation and consideration to those involved. Hazhó’ógo. ==Visitation eluded a final ruling

==Writ of Habeas Corpus issued for return of child to Mother ==Writ of Superintending Control is permanent ==Family Court has since closed case, visitation remains elusive QUESTIONS???