A new court document filed last week with the Montana Supreme Court describes irregularities in proceedings related to a child custody case and said the record raises serious concerns of “misconduct.”
In an unusual development for a child custody matter, a couple of lawyers earlier asked the Montana Supreme Court to take emergency control of the case from Christopher.
Both lawyers have said the case represents one of the most blatant miscarriages of justice they have witnessed in each of their respective 25 years of law.
The Daily Montanan reports in a brief phone call Monday, Christopher, first elected as judge in Lake County in 2000, said she couldn’t say much about the case but said the public record should illuminate it.
“There should be a pretty solid record,” Christopher said.
The judge also said when courts deal with individual parties who aren’t represented by lawyers, or when they are pro se, cases can be unpredictable.
“There is never anything typical about a pro se trial or hearing,” Christopher said.
In a hearing in September, contrary to any proposal from either parent, Christopher ordered a 5-year-old child to be immediately taken from his mother, who had raised him, and placed in the care of his father, who lives in Oregon and had visited the child only four days a year.
The lawyers for the plaintiff described the on-the-spot transfer as a “draconian transition.” They earlier alleged “gross negligence” in the request the Montana Supreme Court take emergency control of the case from Christopher.
In her own court filing, Christopher acknowledged being emotional in the case, but also said she corrected course after taking time to reflect on a parenting plan she drafted. Additionally, she said the mother unfairly manipulated the father in the case.
In an interview, the judge reiterated she regularly takes a step back in “hotly contested” cases and did so in this one. In her court filing, Christopher noted the Supreme Court requested her response on Oct. 26, and she revisited her drafted parenting plan on Oct. 28 and finalized it “with more judicial temperament.”
Late last week, citing a concern of “misconduct,” the lawyers requested the Supreme Court assign a new judge, refer the matter to disciplinary counsel, and also call a hearing.
“Petitioner respectfully requests that this Court … order all parties and court personnel to appear at a show cause hearing before this Honorable Court to explain and determine if any person is attempting to undermine or manipulate the justice system,” wrote lawyers for the plaintiff.
The plaintiff is Shanna ManyWounds of Elmo, mother of the 5-year-old child.
ManyWounds is represented by Spencer MacDonald of the MacDonald Law Office and Lance Jasper of Reep, Bell and Jasper, who also are asking the Supreme Court to return the child to his mother.
The court document filed late last week said ManyWounds still has not had the opportunity to talk with her child since the Sept. 11 hearing.
The document also describes oddities in court proceedings.
First, the lawyers discuss a document apparently emailed from the “respondent,” or the father, but unsigned by him or anyone else. The document doesn’t appear to be written by the father, said the lawyers, who compared it to a separate handwritten court filing that was signed by the father.
The unsigned document appeared in MacDonald’s email inbox on Nov. 13, according to court records. It discusses the case including the timeline of events leading up to the hearing, history of visitation, and steps father took to be a supportive parent.
A few things are noteworthy about the document, the lawyers for ManyWounds said in their court filing.
Those include the use of initials for the child, required by rule but unlikely known to the father, Jonathan Whyte, who was representing himself at the time, the lawyers wrote. They also include the writing style of the document, according to the lawyers.
“It is also written in a manner consistent with the district court’s filing … and not likely written by Respondent Whyte when compared to his Motion for Extension of Time,” the lawyers wrote.
By comparison, the father filled out the Motion for Extension of Time form by hand; it was dated Nov. 16 and does not reference the unsigned document emailed earlier.
In a brief phone call Monday, Christopher said she did not help the father with the paperwork, and she said doing so would be inappropriate: “We are precluded by law.”
Whyte did not respond to an email sent to an address listed on the pleading about the unsigned document.
After Whyte filed the handwritten document he signed and another document, court records indicate he hired a lawyer, David Diacon of Hrafn Law of Lolo, on Nov. 23. In a phone call Monday, Diacon said he does not comment on active cases.
In raising another irregularity, the lawyers also said a recording of the hearing — where the judge ordered the child removed from his mother and sent with his father to build the child’s “stress muscles” — disappeared.
On Nov. 10, Jasper asked the court reporter if she had an audio recording of the hearing, and she replied that she did, according to court documents. However, Jasper also asked why a transcript of the hearing appeared to be incomplete, with no conclusion.
The Missoula lawyers became involved with the case after the hearing.
“Counsel was told that the judge instructed her to stop the record as it was no longer needed, and to go home,” the court document said. “Further, when asked if the district court went off the record during the hearing at times and if she did so when instructing (the court reporter) to end the record, she stated yes.
“The horrible actions that took place after the court reporter was dismissed by the district court should have been included in the record as the hearing had not concluded, as evidenced by the transcript.
“Instead, Judge Christopher purposely ended the record to protect herself from judicial review by this Court.”
In a phone call, Christopher said by the time she ended the recording, it already showed the decision she had made at the hearing.
“I think that it’s fairly clear at the end of the hearing that the child was going to be transferred from mom to dad,” Christopher said.
She said the only thing left to do was the actual exchange, which took place under supervision of law enforcement: “So there wasn’t anything else that happened there other than what I’d already ordered.”
As for going off the record during the hearing, Christopher said she gives herself and the court reporter breaks to use the restroom and get water. In those cases, she said she takes a short recess until a stated time.
“When I say we’re adjourned, we’re adjourned,” Christopher said. “And in this case, all that happened after we were adjourned is the exchange of the child.”
In an email, MacDonald, who represents the mother, said the recording shouldn’t have stopped when the child arrived at court.
“That was a traumatic experience for him, and we have no record of it — only witness accounts,” MacDonald said. “The court was aware that it would be traumatic for him, and was wrong to intentionally hide it.”
Jasper said turning off the tape prior to the close of a hearing violates the client’s ability to have a record of the proceeding the court can review.
In a phone call, retired district court Judge James Manley said courts do go off the record for administrative matters, such as scheduling. He said it’s not improper if done for reasons unrelated to a trial or hearing or taking evidence or testimony.
Manley said the circumstances will dictate whether going off the record is appropriate, so lawyers who disagree will have to give their rationale because it isn’t automatically improper.
Another irregularity also appears in the court record. When Jasper asked his legal assistant to contact the court reporter and purchase a copy of the audio recording, she was told the audio file was gone, the court document said.
“This was only a few hours after counsel and Petitioner were told it existed,” said the court filing.
Monday, however, a new court filing from Diacon on behalf of Whyte said ManyWounds is trying to improperly file additional information with the court that goes beyond the matter before it.
The document also alleges ManyWounds is trying to circumvent investigation procedures of the Judicial Standards Commission and Office of Disciplinary Counsel.
“ManyWounds is improperly attempting to expand this proceeding beyond the parenting order and alleged emergency related to her child,” the court filing said.
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