APPELLATE COURT OF THE HOPI TRIBE
HOPI JURISDICTION
KEAMS CANYON, ARIZONA
petition on July 15 and also sought sole custody. Appellee
filed a Motion for the Appointment of a Social Services
Evaluator to conduct a family home study/custody evaluation.
The court ordered the Hopi Tribal Social Services Program to
complete the study by October 27, 1994. The Hopi Social
Services consultant was unable to elicit Appellant's
cooperation in conducting the home study. As a result, its
report contained only information on Appellee.
The hearing on the divorce was held October 27 in the
absence of Appellee, whose attorney had requested a continuance. Appellant opposed the continuance on the matter
of the divorce, but agreed to postpone the consideration of
child custody. Appellee's request for continuance was denied
and the hearing proceeded on the dissolution of the marriage.
On November 1, the trial court granted the divorce and
awarded appellant temporary child support payments (without
explicitly awarding temporary child custody) pending a child
custody hearing scheduled for January 12, 1995.
Hopi Social Services submitted a final custody
recommendation to the court on December 12, 1994 without
having met with Appellant. The Social Services consultant
recommended that Appellee receive full custody of Chelsey and
that Appellant receive weekend visitations and phone calls.
Nevertheless, Appellee sought joint custody rather than full
custody when the trial finally began on May 1, 1995.
Appellee, having returned to Flagstaff, requested a joint
custody arrangement giving him physical custody of Chelsey
OPINION AND ORDER, Polingyouma v. Laban, (D-013-94), (AP-006-95*)
Page 2 of 8.
during the school year and giving Appellant physical custody
during the summers, but also expressed his willingness to
return to Hopi if the court determined that to be in
Chelsey's best interests. Appellant sought practically the
reverse. She wanted primary physical custody of Chelsey with
visitation to Appellee two weekends per month plus holidays,
school vacation periods and special occasions.
After three days of testimony concluding on June 29, the
trial court found both parents fit and ordered joint
custody of Chelsey with alternating six month periods of
physical custody during which the non-custodial parent would
have visitation rights every other weekend. Appellee was
given the first period of physical custody of Chelsey, from
July 1, 1995 through January 1, 1996.
Appellant filed a Motion for Stay of Execution of the
custody order and Notice of Appeal on July 18, 1995.
Appellee responded to the motion and Appellant moved to
strike the response.
Oral arguments were held March 28, 1995 before Chief
Justice Sekaquaptewa and Justice Abbey.
erred as a matter of law. In addition, she pleads customary
law directly to the Appellate Court. Under Appellant's view
of custom this Court should recognize a presumption of
physical custody with the mother because a Hopi child belongs
to the mother's clan and the mother's family has special
customary duties relating to the child's religious and
ceremonial upbringing.
Finally, she argues that the trial court applied Arizona
law incorrectly by devising a joint physical custody
arrangement that is not in the best interests of the child.
Appellant's claim that the trial court failed to consider
custom altogether is refuted by the record.
II. PLEADING CUSTOM
Even though the Appellant cannot show here that the
trial court failed to consider custom, she pleads custom
directly to this Court. Appellant's implicit claim is that
the trial court applied customary law improperly if it
applied it at all. We would require a trial transcript in
order to determine whether custom was propounded at trial and
whether it was properly considered. However, Appellant has
not supplied a transcript with this appeal. Consequently,
the record here is devoid of evidence of custom, except for
appellant's assertions on appeal.
While this Court may take judicial notice of custom, the
legal interpretation of custom should be resolved at the
trial court level. Id. Hopi Indian Credit Association
explains the process for introducing custom at trial. A party
who intends to raise an issue of unwritten custom, tradition
or culture must give notice to the trial court and to the
other party. Id. In addition, the party seeking to
introduce custom into the legal resolution must plead custom
with sufficient evidence so as to establish the existence of
1 The Hopi Indian Credit Association requirements for pleading custom
were established subsequent to
the trial
underlying this appeal. We
apply them retrospectively nevertheless because this is the only
reasoned and fair way to resolve claims currently on appeal involving
issues of custom.
OPINION AND ORDER, Polingyouma v. Laban, (D-013-94), (AP-006-95*)
Page 5 of 8.
the custom and show how it is relevant to the issue before
the court. Id.
Lacking a trial transcript, we proceed cautiously here.
while we cannot analyze the introduction of custom at the
trial level under the Hopi Indian Credit Association
standards, we may still take judicial notice of custom.
III. HOPI CUSTOM AND CHILDREARING
This Court is prepared to take judicial notice of three
aspects of Hopi custom concerning children. Under
traditional Hopi practice, a child is born into her mother's
clan, lives with the mother's household and receives
ceremonial training from the mother's household.
IV. CONSISTENCY OF THE CUSTODY ORDER WITH CUSTOM
The existence of custom relating to a child's
involvement with the mother's household does not end the
inquiry here. The traditional practice needs to be tested
for relevancy to this particular dispute over physical
custody in the context of modern Hopi life. Here we hold
that the customs we judicially notice today are relevant to
child custody arrangements because they impose specific
requirements for the child's presence in the mother's
household.
OPINION AND ORDER, Polingyouma v. Laban, (D-013-94), (AP-006-95*)
Page 6 of 8.
However, the relevance of custom does not necessarily
invalidate the custody arrangements ordered by the trial
court. Appellant's entire argument is based on the
presumption that Chelsey would reside in Flagstaff during the
period of her father's physical custody. The trial court
order clearly requires that both parents assure that Chelsey
remain enrolled at Hopi Day School, requiring her physical
presence at Hopi for the entire academic year and minimizing
the type of disruption to Chelsey's life that Appellant
purportedly seeks to avoid with this appeal. Furthermore,
the oral arguments and Appellee's answering brief confirm
Appellee's willingness to relocate to Hopi if the Court finds
that to be in Chelsey's best interests. No evidence in the
record suggests that the trial court order conflicts with the
custom as we have recognized it above.
V. STATE LAW CLAIMS NEED NOT BE CONSIDERED
We need not reach Appellant's remaining claim that the
trial court misinterpreted Arizona law by allowing "divided"
physical custody because state law does not control here.
Under Tribe v. Mahkewa, AP-003-93 (1996), "The Trial Court
[has] discretion to apply federal law, state law, a
combination of both, or neither. . . Under Resolution H-12-76,
federal and state law are persuasive, not mandatory,
authorities."
OPINION AND ORDER, Polingyouma v. Laban, (D-013-94). (AP-006-95*)
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