A Seneca Peacemakers judge had no legal right to claim jurisdiction over a custody case involving a child whose mother is not a Seneca Indian because the case was already in Erie County Family Court, the Seneca Appeals Court has ruled.
The child custody case involving Koby Hammer Parker, the 4-year-old son of Katherine Hammer and Glenn Parker, a Seneca, properly belongs in the Erie County Family Court, the Seneca appeals judges ruled.
In ruling for the boy's mother, the Seneca judges sidestepped the issue of whether the Peacemakers judge who issued the original order transferring the case from Family Court, Joyce Gates, improperly claimed jurisdiction by citing the Indian Child Welfare Act.
The national law only covers Indian children who are members of a tribe or eligible to become one. Koby Parker is not a Seneca and can never be one because the Senecas trace their bloodlines and membership eligibility through their mothers, and his mother is not a Seneca.
The appeals court also avoided mentioning the fact that Gates, the judge in the lower court, had a conflict of interest because she is the aunt of the boy's father. Appeals judges had earlier taken the case away from her because of that conflict.
Instead, the four appeals judges ruled that because the custody case began in Erie County Family Court, when the court ordered a paternity test after Parker denied being the boy's father, that's where the case should have stayed.
"As this case was originally initiated in the Erie County Court system," the Seneca judges ruled in a March 27 decision, "this court finds that the Seneca Nations Peacemakers Court overstepped their authority in adjudicating a case that was already pending in another jurisdiction."
David B. Cotter, the attorney handling the case in Erie County Family Court, said he will seek custody for Hammer in a hearing Tuesday before Judge Kevin M. Carter.
He said the Seneca court's ruling never addressed the misreading of the law by Gates and the fact that Koby disappeared with his father for 40 days last summer after Parker's aunt granted him custody.
"I'm glad they did what they did; I wish they could have done it significantly earlier," Cotter said. "They just made the lady and the kid go through hell for seven months."
Michael Waterman, a Seneca who serves as a lay advocate in Peacemakers Court, obtained the appeals court ruling for Hammer after arguing that the Seneca courts had no legal basis to handle the case.
"I was encouraged by the appellate court decision finally recognizing and accepting responsibility for the tragedies that have happened to this woman and her child," Waterman said.
"And I'm encouraged now that the president [Maurice A. John Sr.] and the Tribal Council know of this," he added, "that we will move forward with judicial reform so that this never happens again."
The Seneca Nation, through its counsel Robert "Odawi" Porter, had earlier said it would not comment on the case, calling it a Seneca family matter.
Cotter said he will seek full custody, child support and what he said was a fairer child visitation policy for Hammer when he appears Tuesday before Carter. He said Hammer is currently receiving $20 a week support but has to drive 350 miles a week back and forth from her home in Collins Center to deliver Koby for Parker's daily visitation on the Cattaraugus Territory.
Carter, who retook jurisdiction of the case last month after Cotter argued the Seneca courts had misrepresented the law, adjourned the custody argument until Tuesday so Parker could hire a lawyer.