By SCOTT MCKIE BP
A feather asst. editor
CHEROKEE, NC — The Tribal Council has passed legislation allowing evidence of past violence against children or in the family when handling custody cases. Order no. No. 448 (2022), filed by the Eastern Band of Cherokee Indians (EBCI) Office of the Attorney General and Sheyahshe Littledave, was unanimously adopted during the Council’s regular meeting on Thursday morning, January 12.
“What this law does is modeled after the Domestic Violence Act,” Hannah Smith, EBCI’s Attorney General’s Office, told the council during Thursday’s discussion on the issue. “In our law, in the Domestic Violence Code, we looked at what Evidence Rule number 404 was and decided that this Evidence Rule should never be an obstacle in our court system, our legal system, to introducing evidence of past violence against children for the purpose of identifying issues in domestic violence cases. We’re basically mirroring the same concept, but for regular custody cases.”
She added, “So if you find yourself in a custody battle in our court, the rule of evidence, which could be an impediment to presenting evidence of a person’s past abusive violent behavior, will not be an impediment.”
Painttown Assemblyman Dike Sneed filed the application for approval. It was supported by Birdtown MP Boyd Owle and passed unanimously.
Littledave, an EBCI tribesman, said after the bill was passed: “I came here today as a survivor of domestic violence and as a mother. In the six months to this moment I have learned a great deal about the law – by no means an expert. I’ve learned enough to know that it’s not always black and white. There are many gray areas.”
She thanked those responsible for supporting the change in the law. “I’m really grateful to Hannah and the DA’s office for their support. It wasn’t an easy road to get here and I had to face a lot of cold hard truths because Hannah will tell you straight. But I am grateful because it has really given me a clearer head as to what the larger purpose here is. And the larger purpose here is to protect our children and to ensure that in any custody case, if they go home unsupervised with a parent, safety precautions are in place and that we understand that when they leave, they will be safe and secure.”
Littledave added: “Of course I’m speaking from personal experience. As a mother, I’ve sat in that tribal courtroom and can attest to what it feels like to let go of your children and send them to their abuser and just pray they come back safe. I have to do this every other weekend and it’s the worst feeling ever. So if we can do that and you passed, I am grateful that this will help ensure the safety of our children in the future.”
Order no. No. 448 states in part: “…in private custody disputes in Cherokee Court, the North Carolina Rules of Evidence shall apply unless the tribe expressly dictates otherwise, and Rule 404 of the Rules of Evidence should never be a bar to evidence prior Violence by children or in the family when the question in court is whether someone is suitable to be a parent or what is in a child’s best interest.”
The state law to which the ordinance applies is North Carolina Penal Code 703.4, Other Crimes, Wrongs or Actions [Rule 404(b)] It states: “No evidence of crime, wrong or action is admissible in proving the character of a person, in showing that he has acted in accordance therewith. However, it may be permissible for other purposes, e.g. B. Evidence of motive, opportunity, intention, preparation, plan, knowledge, identity or accuracy, captivity or accident. Admissible evidence may be evidence of a crime committed by a juvenile where it would be a Class A, B1, B2, C, D or E crime if committed by an adult.”
Order no. Item 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 determining whether a party in the present action is eligible and eligible to have legal or physical custody of or visitation with the minor child who is the subject of the present action Complaint, and such evidence is also relevant in determining the best interests of the minor child that is the subject of the present Complaint. Rule 404 of the Rules of Evidence does not prevent the Court from examining this evidence:
(i) any abuse as defined in Chapter 78 of the Cherokee Code, whether the alleged abuse was committed against a party to the present lawsuit, a minor child who is the subject of the present lawsuit, or a former close partner or family became , or household member, or minor child, and
(ii) any crime of domestic violence or similar wrong, act or pattern of conduct, whether or not the alleged crime of domestic violence or similar wrong, act or pattern of conduct was committed against a party to the present lawsuit who is a minor child the subject matter of the present Complaint is, or a former intimate partner, family or household member, or a minor child.
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