(Jan 22, 2015, North Dakota) In a rare and extraordinary move, the North Dakota Supreme Court removed district court judge, Cynthia Feland, from a child custody case after it was determined her custody order was not in the best interest of the child, and that she ignored significant evidence of domestic violence.

In their Jan. 22, decision, the justices, ordered that Judge Cynthia Feland be removed from the custody and child support case of Nicholas Law and Danielle Whittet. The unanimous opinion signed by Justice Daniel Crothers read, in part, “A change of judge is ordered upon remand because of Judge Feland’s inability or unwillingness to follow our mandate, and out of concern for the tumult from and cost of litigation.”

Nicholas Law and Danielle Whittet began dating in 2010, they were never married. Ms. Whittet also has two older children from a previous relationship. In 2011 Ms. Whittet gave birth to their child. Mr. Law was proven to be the father through a DNA test.

In July 2012, Mr. Law filed a motion for custody and requested primary custody of the child. Mr. Law requested primary custody citing the Best Interest standards favored him, and a number of factors endangered the child if put in the care of Ms. Whittet.

Following a trial, Judge Feland granted joint custody to the couple and “ordered the parties equal residential responsibility for the child, each having the child on alternating weeks with exchanges taking place on Sunday”. (I will go into the evidence and arguments cited at trial, further in this article).

After the trial, in Nov 2012, Ms. Whittet plead guilty to disorderly conduct, assault and escape. The assault charge was later dismissed. The incident happened in September 2012. At 3 am, officers were dispatched to Ms. Whittet’s home because she was “very intoxicated” and was outside yelling and screaming at her boyfriend. When Ms. Whittet refused to stop screaming, the officers gave her the choice of going into detox or staying with a friend or family member. Ms. Whittet chose to go to her mother’s home for the night, where her 3 children were staying. At 4:30 am, officers were dispatched to the mother’s home. Ms. Whittet was screaming, throwing objects around the house, and had woken the children, who were witnessed to be crying. The screaming was so loud that a neighbor came to the home to investigate. The mother suffered an injury to her arm after Ms. Whittet pushed her against a bed. The mother requested that the officers take Ms. Whittet, and she was arrested.

Mr. Law then filed a motion based on the new evidence of the Sept. 2012 incident and conviction, requesting primary custody. Judge Feland denied Mr. Law’s motion and instead entered a permanent joint custody judgment.

Mr. Law appealed Judge Feland’s custody order to the Supreme Court, and won (Law v. Whittet, 2014 ND 69, 844 N.W.2d 885, filed 4/7/2014). The Supreme Court found that Judge Feland, “simply ignored the significant evidence that was favorable to Law and detrimental to Whittet” and “The district court in this case, without explanation, failed to acknowledge or address evidence which clearly indicated several of the best interest factors favored Law.”

The Supreme Court made its decision based on factors NOT considered in Judge Feland’s custody order, that were entered into evidence. Evidence included the following: Ms. Whittet lived in 10 different residences in the past 4 years, and was living with various men, at different times, who provided financial support. One of these men had physically abused Ms. Whittet’s older child. Ms. Whittet did not have stable employment.Ms. Whittet comes from a dysfunctional family background, and was found to have gotten into physical fights with her mother on several occasions; many of these fights happened in front of the children. In contrast, Mr. Law was found to have a stable job, owns his own home, and is soon to be married. Mr. Law was also has a supportive family and his parents share a close relationship with the child.

The Supreme Court struggled to understand how Judge Feland found these parents to provide an equal quality of care to the child, and struggled to understand how Judge Feland dismissed the Best Interest factors, “We are at a loss to understand or explain the court’s finding. On the basis of this record, Law has demonstrated a markedly stable home life and an extended family which has had a demonstrably positive impact on the child. Whittet’s home environment, however, demonstrates remarkable instability, averaging a move every few months, and has subjected the child to constant change and inconsistency. In addition, Whittet’s home environment subjected the child to a live-in boyfriend who physically assaulted one of Whittet’s other children, and her extended family life subjected the child to a physical altercation between Whittet and her mother requiring intervention by law enforcement and Whittet’s arrest. On the basis of the entire record, we conclude the district court’s finding that factor (d) was equal was clearly erroneous, and factor (d) favored Law.”

The Supreme Court was also troubled that Judge Feland ignored domestic violence happening in Ms. Whittet’s family, meaning the ongoing fights with her mother that the children were a witness to. (The record does not show, but evidence suggests, the children may have witnessed fights between the mother and her various live-in boyfriends).

Judge Feland found that neither party engaged in domestic violence and ignored Ms. Whittet’s troubled history with her mother. The Supreme Court argued that domestic violence statutes (N.D.C.C. § 14-09-06.2) require the Court to consider violence on a family or household member and that “the legislature intended the factor to apply whenever violence is directed at any member of the household or family, and domestic violence is not confined to instances in which the child or one of the parties is the direct victim of the violence.” Further, “A trial court cannot simply ignore evidence of family abuse, but must make specific findings on evidence of domestic violence in making its decision on primary residential responsibility.” Which means that even if the statute did not apply, Judge Feland should have considered the violent altercations between Ms. Whittet and her mother when making a custody determination. Also supporting this argument, is that the children were being cared for by their maternal grandmother at different times, and Ms. Feland’s acts of violence directly impacted the well-being of the children. Clearly, the children were put in the middle of these disputes, and had suffered emotional distress–and were at risk for real physical harm. (Just my thoughts–if the mother has this chaotic of a lifestyle, she should be required to sober up, and demonstrate stability before having any extended visitation with the child. This is clearly a case where supervise visitation is warranted).

The Supreme Court found that Judge Feland’s ruling was “clearly erroneous” and remanded with instructions that Ms. Law be “given primary residential responsibility of the minor child and to consider limited parenting time for Whittet”. The safety of the child was a major factor in the ruling, the Supreme Court writes, “In determining a parenting time schedule for Whittet, the court must bear in mind the presumption that any domestic violence, even if not directed at the child, negatively affects the best interests of the child. Accordingly, the court should consider limited parenting time for Whittet.”

Instead, Judge Feland drafted an order that required Mr. Law to pay child support, and gave Ms. Whittet parenting time with the child every other week. “Primary custody” means one parent has custody of the child more than 50% of the time. Further, Judge Feland issued an award of child support, with Mr. Law paying the majority of support, which did not support the fact that he has been awarded primary custody. The Supreme Court found that, “The child support was not calculated in proper consideration of the primary residential responsibility award to Law. The district court did not carry out the terms of this Court’s mandate.” In essence, Judge Feland’s custody order did not truly reflect primary custody, and continued to put the child at risk.

Mr. Law then went back to the Supreme Court, seeking relief because Judge Feland had not followed the ruling (Law v. Whittet, No. 20140268, filed 1/22/2015). The Supreme Court sided with Mr. Law, and ordered the removal of Judge Feland from the case, “A district court amended judgment will be reversed and remanded for failure to follow the mandate of the Supreme Court. A change of judge may be ordered on remand when a judge is unable or unwilling to follow the mandate of the Supreme Court.”

Ms. Whittet has two older children, it has not been made public if those children remain in her care.

About Judge Feland: Cynthia Feland is a judge for the North Dakota South Central Judicial District seat 5. Her current term will end on January 1, 2017. Prior to her election to the court in 2010, Judge Feland was an assistant state’s attorney for Burleigh County for 11 years. She was the Grant County State’s Attorney from 1992-1998, also worked in private legal practice in Mandan.

Prior Misconduct: November 2011- The disciplinary board of the Supreme Court investigated Judge. Feland and determined misconduct for an incident that happened when she was as an assistant state’s attorney. Judge Feland did not reveal a document during the prosecution of the director of the North Dakota’s Workforce Safety and Insurance agency, Sandy Blunt, who was accused of misspending funds. Blunt was convicted of a felony which was upheld by the North Dakota Supreme Court. Blunt says that Judge Feland withholding the document contributed to his conviction.

The North Dakota Supreme Court ordered that Judge Feland be admonished and that pay half of the expenses of the disciplinary investigation (about $5.600). Judge Feland denies any wrongdoing.

Sources: Law v. Whittet, North Dakota Supreme Court Opinions, No. 20140268, 1/22/2015 : http://www.ndcourts.gov/court/opinions/20140268.htm

Law v. Whittet, North Dakota Supreme Court Opinions, No. 20130241, 4/7/2014 : http://www.ndcourts.gov/court/opinions/20130241.htm

Judgepedia: Cynthia Feland: http://judgepedia.org/Cynthia_Feland

“N.D. Supreme Court removes judge from custody case” by Andrew Sheeler, 2/3/2015, The Bismark Tribune: http://bismarcktribune.com/news/local/crime-and-courts/n-d-supreme-court-removes-judge-from-custody-case/article_1e441522-d7d4-503c-a399-fa1adf646c54.html

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