By SCOTT MCKIE B.P.
One Feather Asst. Editor
CHEROKEE, N.C. – Tribal Council approved legislation that will allow evidence of past child or family violence when dealing with child custody cases. Ord. No. 448 (2022), submitted by the EBCI (Eastern Band of Cherokee Indians) Office of the Attorney General and Sheyahshe Littledave, passed unanimously during the regular session of Council on the morning of Thursday, Jan. 12.
“What this law is doing is taking a cue from the domestic violence law,” Hannah Smith, EBCI Office of the Attorney General, told Council during discussion on the issue on Thursday. “In our law, in the domestic violence code, we have looked at what evidence rule number 404 was and decided that that rule of evidence should never be a bar in our court system, our legal system, to introduce evidence of past violence against children for the purposes of determining issues in domestic violence cases. We’re basically mirroring that same concept, but for regular child custody cases.”
She added, “So, if you’re in a child custody suit in our court, the rule of evidence that could be a barrier for introducing evidence of someone’s past abusive violent behavior will not be a barrier.”
Painttown Rep. Dike Sneed made the motion to pass. It was seconded by Birdtown Rep. Boyd Owle and was approved unanimously.
Littledave, an EBCI tribal member, spoke following passage of the legislation, “I came here today as a domestic violence survivor and a mother. Over the last six months building up to this moment, I’ve learned a lot about the law – by no means an expert. I’ve learned enough to know that it’s not always black and white. There’s a lot of grey areas.”
She thanked those responsible for helping the law change come to fruition. “I’m really grateful to Hannah and the Attorney’s Office for their support. It’s not been an easy road to get here and I had to listen to a lot of cold, hard truths because Hannah will lay it right out to you. But, I’m grateful because it’s really given me a clearer head of what the greater purpose is here. And, the greater purpose here is to protect our kids and make sure in any child custody case that when they go home with a parent unsupervised that there are safeguards in place and that we have an understanding that when they go they’re going to be safe and protected.”
Littledave added, “Of course, I’m speaking from personal experience. As a mother, I have sat in that tribal courtroom and I can attest to how it feels to let go of your kids and send them off to your abuser and just pray that they come back safe. I have to do that every other weekend and it is the worst feeling ever. So, if this is something we can do, and you guys passed this, I’m thankful that this will help ensure the safety of our kids in the future.”
Ord. No. 448 states in part, “…in private child custody disputes in the Cherokee Court, the North Carolina Rules of Evidence apply unless the Tribe specifically legislates differently, and Rule 404 of the Rules of Evidence should never be a bar to evidence of any past child or family violence when the question before the court is whether someone is fit to be a parent or what is the best interest of a child.”
The state law referred to in the ordinance is North Carolina criminal law 703.4 Other Crimes, Wrongs, or Acts [Rule 404(b)] which states, “Evidence of crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment, or accident. Admissible evidence may include evidence of an offense committed by a juvenile if it would have been a Class A, B1, B2, C, D, or E felony, if committed by an adult.”
Ord. No. 448 adds the following language to Cherokee Code Sec. 50-12 Other family law issues.
(h) Evidence of the following is relevant and must be considered by the Court, in determine whether a party in the present suit is fit and proper to have legal or physical custody of, or visitation rights with, the minor child who is the subject of the present suit, and this evidence is also relevant in determining the best interests of the minor child who is the subject of the present suit. The Court shall not be barred by Rule 404 of the Rules of Evidence from considering this evidence:
(i) any maltreatment, as defined in the Cherokee Code Chapter 78, regardless of whether the alleged maltreatment was committed against a party in the present suit, a minor child who is the subject of the present suit, or any past intimate partner, family, or household member, or minor child, and
(ii) any domestic violence crimes, or any similar wrongs, acts, or patterns of behavior regardless of whether the alleged domestic violence crimes, or similar wrongs, acts, or patterns of behavior were committed against a party in the present suit, a minor child who is the subject of the present suit, or any past intimate partner, family, or household member, or minor child.