Supreme Court removes Judge Christopher from child-custody case

Jan. 11—In a 5-0 opinion, the Montana Supreme Court took what justices describe as "an extraordinary remedy" of asserting "supervisory control" over a Lake County child-custody case. The decision, issued Jan. 2, returned a 5-year-old child to the custody of his mother, Shanna Spring ManyWounds of Elmo, and reassigned the case from District Court Judge Deborah "Kim" Christopher to Judge Molly Owen.

In the High Court ruling, justices write that Christopher "erred as a matter of law" and caused a "gross injustice" by abruptly removing the child from his mother's custody, giving full custody to the father for the next five years, and barring the mother from all contact with her son.

The case first entered the District Court system last April, when the little boy's father, Jonathan Whyte, who lives in Oregon, petitioned the court for a formal parenting plan. According to court documents, Whyte typically visited the boy at his mother's home in Elmo for four or five days a year, under the supervision of either ManyWounds or her mother.

He sought permission to take the child (C.L.W.) to Oregon and eventually, by 2025, allow the child to spend summer vacations and winter breaks with Whyte, as well as alternating holidays. He also wanted immediate "unsupervised" visits with his son in Montana for up to three days at a time, and to obtain a passport for his son so that C.L.W. could meet his father's extended family in Jamaica.

ManyWounds wasn't willing to "guarantee" that Whyte could take their son to Oregon until she was confident the little boy was comfortable in his dad's care; and she wanted their son to wait until he was 14 before obtaining a passport.

That impasse led them to an appearance in Judge Christopher's court Sept. 11.

According to court documents, ManyWounds told the judge she felt her son and his father had not established a strong bond. "I would like to see time spent developing the relationship ... before the child is taken away from everything he's ever known."

Throughout the proceeding, she pointed out that she had tried to encourage and facilitate Whyte's visits, allowing him to stay at her house, providing him with transportation while he was in Montana, and giving him regular updates on their son.

The judge initially seemed receptive to allowing the father to have his son on alternating holidays, with those visits occurring in Montana for the next two years, and then summers beginning in 2005.

According to court documents, Christopher also told ManyWounds that Whyte's proposal was "a better deal than you're going to get from me."

The tone of the hearing appears to have shifted at that point, with Christopher asking the mother, why "you feel like you have more rights to the child than he does?"

Christopher also told ManyWounds "that child should be with his dad," adding that the court could "send him home tonight for the next five years."

After a recess, Judge Christopher asked for testimony from Lake County Superintendent of Schools Carolyn Hall regarding child development. Hall testified that the "total absence" of a parent could adversely affect a child, and that it's difficult for children to switch custody too frequently. She also suggested that ManyWounds should accompany her son to Oregon initially to make the transition less frightening.

Christopher then related her own experience with joint custody, concluding that while the experience "was bad ... [her children are] better for it in the ability they have to deal with the world."

She continued, "if you can build a resilience, it doesn't come from the fun times, the opportunities where you don't have to assert or develop stress muscles, is what I call them."

She then announced she had decided to have ManyWounds immediately turn the child over to his father and said that while she had originally planned to support Whyte's parenting plan, she now believed that since ManyWounds had gotten C.L.W for his first five years, Whyte should have him for the next five years.

When ManyWounds asked the judge to reconsider and implement Whyte's plan, the judge replied, "Quite frankly, you are a grown adult. If you can't figure it out, now it's in front of me, now it's my call."

The judge insisted that the transfer of custody happen immediately, and told ManyWounds that "over protecting of kids results in kids that can't take care of themselves," again relating the case to her own experience. "So you're going to get a gift I don't think you ever expected the opportunity to have."

She told law enforcement to immediately deliver the child to Whyte, and ordered ManyWounds to bring the child's belongings to the courtroom for Whyte to pick up on his way out of town. She also advised the father to enroll the child in therapy and ruled that C.L.W. could have no contact with his mom until the therapist said it was appropriate to do so.

Whyte did not have a car seat, which ManyWounds volunteered to provide.

Christopher issued an order Sept. 19 giving full custody of the child to his father for the next five years. ManyWounds filed a petition for supervisory control Oct. 24, after no final parenting plan had been issued, and said she had not contacted her son, and didn't know if Whyte had taken steps to obtain therapy for the child.

In its ruling, the Supreme Court notes that "supervisory control is an extraordinary remedy," only invoked to resolve legal questions "or when urgent or emergency factors make the normal appeal process inadequate." Justices also noted the case must meet at least one of three other criteria including "the other court is proceeding under a mistake of law and is causing a gross injustice."

Since Christopher did not file a final parenting plan until Nov. 2, nearly two months after the initial hearing, and because at the time of the Supreme Court's opinion, "C.L.W. has been barred from any contact with his mother for over three and a half months," justices concluded that the case met the standard for "an urgent or emergency situation."

The High Court also argued that the lower court was operating "under a mistake of law and causing a gross injustice" by improperly considering "the best interest of the child," as mandated by Montana law.

The justices conclude that Christopher "failed to determine a parenting plan in accordance with the best interest of C.L.W.," and instead authored a plan "whose stated purposes were to punish ManyWounds for the court's belief that she had treated Whyte unfairly, to reward Whyte because she found him likeable, and to deliberately subject C.L.W. to potential traumas in a misguided attempt to 'develop the stress muscles' of a child that the court believed had been overly protected by his mother and grandmother."

The justices added that "one of the more disturbing aspects of Judge Christopher's rulings in this case is the damage likely caused to the largely amicable coparenting relationship that ManyWounds and Whyte had forged," and hoped that the parents could "repair that relationship and successfully coparent C.L.W in the future."

Christopher responded to ManyWounds request the Supreme Court issue a Write of Supervisory Control on Nov. 2, the same day she signed her final parenting plan. In her response, Christopher writes that she found the custody hearing "shockingly disturbing" and said ManyWounds' unwillingness to accept Whyte's "incredibly reasonable parenting plan, and "the control, power and authority" she allegedly wielded over the father's rights "has not been seen ... in almost 23 years on the bench."

Christopher also wrote that she had drafted a parenting plan "the very next day" after the hearing on Sept. 11 but recognizing "there was significant emotion in the draft" had not revisited the plan until Oct. 28. Then, she writes, over the course of seven hours she reviewed the case "with more judicial temperament."

In her response to justices, Christopher also accused the mother of violating the court order to have no contact with the child and stated that unless the father was allowed to bond with his son "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 her parenting plan, signed Nov. 2, she also cites the maternal grandmother, Tania Osborn, for contempt of court for "verbally attacking the father in the courtroom," and orders that the mother and "most especially" the grandmother could have no contact in person, in writing, by phone or via electronic devices with the child unless approved by a therapist.

While acknowledging that the case appeared to have "genuinely triggered distress for Judge Christopher," the justices opined that she then "had a duty to either resolve the dispute in a fair and impartial manner or recuse herself ..."

"Instead, she unfortunately rendered a decision that appears to arise from her desire to punish one parent and reward the other at the expense of a 5-year-old child's best interest ..."