Alleging ‘gross injustice’ by Lake County judge, lawyers ask MTSupCo to step in

By: - November 20, 2023 7:35 pm

(Photo illustration by Getty Images)

Two attorneys are asking the Montana Supreme Court to take over a case that resulted in a 5-year-old child being taken from his mother on the spot in a “draconian transition” the judge said would build the child’s “stress muscles” — despite no evidence she is “anything but a good mother.”

That’s part of the argument lawyers who represent the mother are making in an emergency request the state’s high court take control of the Lake County District Court case that placed the child in custody of the largely unfamiliar father in September.

The Missoula lawyers, Spencer MacDonald of the MacDonald Law Office and Lance Jasper of Reep, Bell and Jasper, said in their decades practicing law, this case represents one of the most blatant miscarriages of justice they have witnessed.

They are asking justices to correct the “gross injustice” by Judge Deborah Kim Christopher and order the child returned to his mother, Shanna ManyWounds of Elmo, who also has been his primary parent and caregiver since he was born.

“Twenty-five years of practicing law and this is the first time I’ve ever seen anything like this ever occurring,” Jasper said in an interview Friday.

In her own response to the Montana Supreme Court, Judge Christopher said the case is unusual in that the mother is overly controlling. Christopher is a former prosecutor first elected as judge in Lake County in 2000.

Other than an initial fee paid to MacDonald, attorneys MacDonald and Jasper agreed to represent ManyWounds pro bono, or at no cost to her, after reviewing a transcript of the court hearing where their client was prepared to discuss how to move forward with a parenting plan with the child’s father.

The parents, who represented themselves in court, largely agreed the child would continue to live with his mother in Montana and receive visits from his father, who works in Oregon. But they disagreed on details, such as whether visits should be supervised and how soon the child should be allowed to travel overseas to visit the father’s family.

In her decision, however, the judge “overreacted in extreme fashion” and ordered a plan “drastically different” than plans either parent proposed, said the Oct. 24 petition to the Supreme Court.

In a move the lawyers argue will cause trauma to the child, the judge granted the father the next five years of custody, equal to the “helicopter” mother’s first five years; the petition also said she did so without an analysis of Montana’s “best interest of child” statute.

In court at the September hearing, the judge instructed the father to prepare for an immediate transition, according to the transcript.

“My feeling as I was reading that (transcript) was that the judge took a lot of liberties that she would not have taken if one or both of the parties had been represented by an attorney,” MacDonald said in an interview.

However, in her own response to the Montana Supreme Court, Christopher said she, too, found the Sept. 11 hearing unusual in her nearly 23 years on the bench, so she drafted her own parenting plan “the very next day.”

But in her response, Christopher said she herself, “the undersigned,” admitted she was emotional and had to take a step back.

“The undersigned recognized there was significant emotion in the draft so the Court stepped back and let some time pass,” the judge said in a Nov. 2 response. “On October 28, 2023, the undersigned revisited the draft and over the course of seven hours was able to review the case with more judicial temperament.”

In defense of her decision, the judge argued the mother unfairly manipulated the situation to control her son, and the father failed to demand his rights as a parent despite the child’s need for a bond with his father.

In court in September, the judge facilitated a quick transfer. Toward the end of the hearing, the judge asked and answered questions about the transition she was ordering, according to the transcript.

“Do you have a car seat?” the judge asked the father in court.

The father said he could get one.

“Your Honor, am I allowed to say good-bye to my child?” the mother asked.

The judge said the mother could talk with her child sometime, but not right away so she didn’t interfere with the father’s ability to bond with the child.

“You are going to have to willingly say, ‘Hey, this is a great opportunity for you to get to go with your dad. I love you a lot and I’ll be talking to you, but it might be a little while,’” the judge said in the transcript.

The judge also said the mother could be in contact with him a lot sooner if she didn’t “lose it, fall apart.” However, the judge also said the child needed to build “stress muscles” to cope with challenges, and getting to know his father would help him grow strong.

In the transcript, neither parent alleged the other was harming or abusing the child.

Court records note the mother and child moved to Montana when he was an infant, and the child had lived with his mother the first five years of his life; the father stayed in Oregon because he had a good job there, and he visited the child in Montana roughly four days a year.

The father wanted to spend unsupervised time with his child so they could go camping, for instance, and the mother wanted them to first become acquainted in a supervised setting in order to build a relationship, according to court records.

But at the hearing, the judge quizzed the father about whether he actually wanted more time with his son, and the father said yes. She asked whether he had assumed he couldn’t ask and didn’t have rights, and he agreed.

The judge, who shared her own family experience with abuse, said the father had just as much a right to parent under Montana law as the mother did, and she said the child needed time with his dad to “develop the resilience he needs.”

“She (ManyWounds) refuses to allow the bond this child and his father need and deserve,” the judge said in her response to the Montana Supreme Court. “If this isn’t corrected, this child will likely end up in the criminal justice system given the warped upbringing engaged in by the mother and not stopped by the father.”

In further describing the shortcomings she saw in the mother, the judge said ManyWounds exerted “control so extreme as to be abuse and likely compromising the life experiences of the child.”

At the hearing, the judge scolded ManyWounds for referring to the child as “my child, my child, my child … Do you hear yourself?”

Said ManyWounds: “I apologize if that’s the way I come off. As a mother, I’m sorry, your Honor.”

The petition from ManyWounds said the court heard no evidence the child wasn’t “thriving” in his mother’s care, and it heard no evidence she is anything but a good mother.

The lawyers described the judge’s characterizations of the mother as controlling as “personal attacks,” especially given witness statements that she helped the father have a relationship with his son.

“In issuing the subject Order, the district court removed (the child) not only from his primary attachment figure, but also from his extended family and friends, his home, his community, and in general, from the life to which he was very well adjusted, and in which he was happy,” the petition said.

The judge said ManyWounds could contact her son after a therapist approved, but the lawyers said Friday the mother still has not heard any update on whether her son is seeing a counselor, and they said the mother and son have not spoken since the custody transfer in September.

“At age five years (the child) should be protected from trauma and abuse, not intentionally exposed to them,” the petition said, stating a risk of regression in his development.

Last week, MacDonald and Jasper also filed a motion with the Supreme Court to strike the judge’s parenting plan filed with her response because it isn’t based on the legal record. Additionally, they said examples of her “emotional dysregulation and lack of judicial temperament abound” in the transcript.

The motion said a district court can’t legally deprive a parent of their rights without abuse, neglect or dependence, so the judge acted without authority in taking away the child.

MacDonald said he has told ManyWounds the petition is a long shot and such requests are not often granted by the Montana Supreme Court. However, he and Jasper said they would like to see the mother reunited with her son as soon as possible.

1.2 Ex. B - Transcript, September 11, 2023 Hearing_Redacted

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Keila Szpaller
Keila Szpaller

Keila Szpaller is deputy editor of the Daily Montanan and covers education. Before joining States Newsroom Montana, she served as city editor of the Missoulian, the largest news outlet in western Montana.