Father's battle for custody continuesBISMARCK — The North Dakota Supreme Court made legal history last week in a child custody case, but that’s little comfort for the South Dakota man who prevailed.
By: Janell Cole , N.D. Capitol Bureau, Worthington Daily Globe
BISMARCK — The North Dakota Supreme Court made legal history last week in a child custody case, but that’s little comfort for the South Dakota man who prevailed.
Jessy Carlson, now of Belle Fourche, S.D., and formerly of Forbes, N.D., has not seen his young daughter and son, Vesta and Kaktis, for more than a year. Their mother, Lisa Colombe, absconded with them in August 2007 and remains in hiding despite a district judge’s order awarding Carlson full custody, despite Colombe being held in criminal contempt of court and despite state and FBI arrest warrants issued in the summer of 2007.
“It makes me sick,” Carlson said Friday. “I don’t know if they’re still alive.”
The children and Colombe have been featured by the National Center for Missing and Exploited Children as a family abduction case and their photos have been shown on Cashwise grocery bags.
They are believed to be on the Rosebud Sioux Indian Reservation, where Colombe is an enrolled tribal member. Carlson is white.
The Supreme Court opinion, released Wednesday, said Colombe can’t ask the courts to reverse the custody award she doesn’t like while also defying the court by absconding with the children and remaining out of reach.
Thus the justices, for the first time in North Dakota, extended a premise known as the “fugitive dismissal rule” to a civil lawsuit and threw Colombe’s case out without considering the merits of her arguments that she should have custody.
The Supreme Court wrote, “the connection between Colombe’s appeal and her fugitive status is direct and undeniable.”
The fugitive dismissal rules is a concept the court famously employed for the first time in 2000, in the criminal case of Kyle Bell, killer of 11-year-old Jeanna North of Fargo. Bell was then on the lam after escaping from a prison bus in New Mexico. The justices said Bell “forfeited and abandoned his appeal by escaping.” He could not simultaneously ask the appellate court to overturn his murder conviction and defy the court system by fleeing, they wrote.
Bell was captured later the same year and remains in prison today.
In Colombe’s case, the justices also criticized her appeal arguments that the Supreme Court should consider several other alternative solutions, such as appointing a neutral guardian for the children. These requests amount to demands that the court system “negotiate with a fugitive … something this court is not willing to do.”
There is no reason to believe Colombe would comply with those orders, either, they said.
CHILDREN BORN IN 2003, 2006
Carlson and Colombe were never married. Their relationship was intermittent from 2001 until late 2005. They lived together off and on in South Dakota and Forbes, N.D., Vesta was born January 2003. When Kaktis was born in June 2006, Colombe was on the faculty at United Tribes Technical College in Bismarck and Carlson had moved to Belle Fourche. Carlson periodically drove to Bismarck to visit the children, including after he married another woman in September 2006.
In 2007, Colombe sued in Burleigh County District Court in Bismarck for sole custody. Carlson answered demanding shared custody. The two reached an interim agreement, OK’d by a judge, that was to last until a trial in September 2007. In it, Colombe had primary custody and Carlson had visitation.
But, a few months before the trial, Carlson told a judge Colombe was not allowing him visitation and that she was threatening to move with the kids to the Rosebud reservation in South Dakota. He wanted her found in contempt.
When it came time for the contempt hearing in August 2007, Colombe didn’t show up, but sent the judge a message saying she didn’t have an attorney. The judge found her in criminal contempt. The order was never served because Colombe was on the reservation and out of state law enforcement’s jurisdiction.
Colombe also didn’t come to the custody trial a month later in Bismarck, despite a judge’s order that she appear and bring the children to the courthouse, so the judge awarded sole physical and legal custody to Carlson. However, he still does not have them and has not seen them since before the contempt hearing.
“I knew she had moved back down there (to the reservation), but I didn’t know I’d never see them again,” he said Friday.
MOTHER’S LAWYER ‘DISAPPOINTED’
After the trial, Colombe appealed to the Supreme Court with the aid of a Bismarck lawyer, Tom Disselhorst, who has worked on the case without pay. Disselhorst argues that by considering only whether Colombe showed up for court, the district judge and Supreme Court are neglecting the most important issue.
“I’m very disappointed because I think the court should consider the best interests of the children,” he said Friday. “I don’t think it’s fair.”
Colombe had accused Carlson or his hired man of molesting Vesta. Disselhorst said his client is a victim of “financial and factual circumstances” while “attempting to protect her children against further potential abuse.”
But Carlson’s attorney, Anne Summers of Bismarck, said a doctor examined Vesta immediately after one of the alleged assaults and found no evidence. Nor has any suspected abuse ever been reported to law enforcement, she said.
Disselhorst said he fears the Supreme Court has set a precedent that is going to create an insurmountable standard for other people who can’t afford lawyers. He said Colombe might get a better court decision if she appeals now to federal district court, to the U.S. Supreme Court or a tribal court, but it’s going to have to be done by another lawyer because he can’t afford to continue on the case unpaid.
Meanwhile, Carlson and Summers are frustrated that neither tribal police nor the FBI in South Dakota have picked up Colombe.
Summers thinks it’s ironic that Colombe can secret the children on the reservation, when they are below the threshold of the tribal law’s “blood quantum” to qualify for tribal enrollment.
“They’re white, under the law that makes these kinds of distinctions,” Summers said. “The father is really in agony about this. He hasn’t seen his children for over a year.”
Said Carlson, “The last time I saw my little girl, she said, ‘Daddy, I love my mommy, but I want to stay with you.’ ”
One the Web: See the Supreme Court opinion at www.ndcourts.gov/court/opinions/20080023.htm