September 12, 2003
 |
>ARTICLES | EDITORIALS | COMMENTS |
|
 |
from the
by Jeff Armstrong
In what may prove to be the final chapter of a wrenching three-year struggle of Leech Lake mother Jawnie Hough to decisively gain custody of her daughter, the Minnesota Court of Appeals this week affirmed a district court order granting Hough sole physical custody of Meghan Brun, now age five. Hough had been awarded custody of the girl in a 1999 state divorce decree dissolving a marriage marked by spousal abuse on the part of her husband, Donald Brun. Instead of returning Meghan to her mother after an agreed visit with Brun's parents after the divorce, the Bruns petitioned the Red Lake tribal court for custody of the girl without notifying Hough of the proceeding or informing the court of either the existing state custody order or of a domestic abuse restraining order against Brun. Brun then convinced a state judge to enforce the tribal court order at a hearing of which Hough was never notified. On Jan. 10, 2001, Meghan was seized by state police and Hough charged with parental kidnapping, a felony. After initially denying a motion to amend his court order, district judge Terrance Holter accused Brun of misconduct and ordered him to return Meghan to her mother on March 4, 2002. Brun openly defied the court order and his family did not file an appeal until Hough recovered her daughter in circumstances remarkably similar to those in which Meghan was taken from her -- with the assistance of law enforcement during a hospital visit. No member of the Brun family was ever charged with child abduction. In its ruling, the state appeals court held that Brun's challenge to the jurisdiction of the state court over the divorce proceeding and the consequent custody decision was both unfounded and several years too late. "Because the record adequately supports the district court's finding that Jawnie Hough was a Minnesota resident for purposes of dissolution jurisdiction, and because Hough and Brun's child was physically present in Minnesota and in the legal and physical custody of Hough at the time of the custody determination, we affirm," the court ruled. As to personal jurisdiction, the court held that "Brun did not contend that the motion to recognize the tribal court order should be granted because the district court had lacked personal jurisdiction when it made the initial Hough-Brun custody determination. By effectively asking the district court to modify its custody order, Brun accepted the validity of that order and thereby waived any defect in service of process." The appeals court distinguished the case from its finding in K.K.S., a 1994 ruling establishing concurrent tribal-state jurisdiction over a child removed from the reservation by a non-Native father. "First, the issue in K.K.S. was whether the district court had exclusive custody jurisdiction and not, as in this case, whether the district court had subject-matter jurisdiction at all. Second, unlike the circumstances in K.K.S., the district court was not confronted with a jurisdictional dispute before it issued its custody order," the court wrote. The appeals court also pointed out that the current state law governing recognition of child custody decisions of other states or tribes within the state was not in effect at the time of the initial ruling, but the court did not clarify whether tribal courts have reciprocal obligations to acknowledge preexisting state court orders in their deliberations.
|
|
