Child Custody

When is an Absence Temporary in Child Custody Disputes?

More and more often, child custody disputes in Montana involve multiple states or multiple countries. In this case, the central issue was whether Montana could (or should) exercise jurisdiction over a child. The decision turned on how long the child had lived in Montana and whether he was temporarily absent or had relocated to Canada.

The background is important to understanding the Montana Supreme Court’s decision:

Matthew and Michelle Sampley were married on January 23, 2010, in Alberta, Canada. In October 2010, they moved to Alaska, where their son, was born in 2011. Michelle and Matthew moved to Washington in October 2011 and then to Billings, Montana during the end of September 2013.

In October 2013, Michelle and [their son] travelled to British Columbia, Canada to stay with Michelle’s parents. They were scheduled to return to Montana on November 1, 2013. After Michelle’s father was diagnosed with cancer, Michelle and [their son] extended their stay until the end of December 2013. Matthew visited Michelle and [their son] in Canada for five days in November and for ten days in December. During Matthew’s December visit, Michelle told Matthew that she and [their son] would stay in Canada through March 2014. In February 2014, Michelle travelled to Billings to retrieve her and [their son’s] personal 3 belongings. She removed these items without Matthew’s knowledge and returned to Canada.

Marriage of Sampley, ¶¶ 3-4.

Matthew filed for divorce with the Yellowstone County District Court in May of 2014. Michelle then asked the District Court to dismiss all matters relating to parenting and custody because Montana was not the “home state” of the child. The District Court agreed and Matthew appealed that decision.

Montana, like many other states, has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). It says that Montana courts can only exercise jurisdiction over parenting and custody issues if Montana is the “home state” of the child which requires that the child has lived in Montana for at least six months at some point in the past.

Michelle argued that their son only lived in Montana for a day. Since he had not lived here the required six months, Montana did not have jurisdiction to decide the child custody issues. Matthew argued that the trip to Canada was a temporary absence from Montana, that this was his home the entire time.

The Supreme Court’s decision looked at what the law means by “temporary absence” and found that it is not defined. After reviewing the approach of other states, and the legislative history here in Montana, the Court ultimately focused on a totality of the circumstances test. They found that the law’s purpose “was to create a bright-line rule based on the assumptions that a state is the established home of a child after the child is integrated into a community of the state and that such integration usually occurs after six months of living in a community.” Based on that, the Court made the following statement:

We, therefore, conclude that an absence is not temporary if the character of the absence would make it unreasonable to assume that a child would integrate into a community of Montana during the portions of the six-month period when the child is not absent from the state.

This included a footnote with an important disclaimer: We do not decide whether the contrapositive is true. As the state conclusion is sufficient to resolve the present appeal, we need not consider whether all absences that do not render the integration assumption unreasonable are necessarily “temporary.”

The decision went on to find that the child only lived in Montana for either one or four days before relocating to Canada. That he stayed in Canada temporarily until February 2014, at which point Michelle retrieved his things from Montana and fully relocated him. Even if his absence was temporary until February, it ceased being temporary after that point. This means that, at most, the child resided in Montana for five months and did not meet the six month mark. Therefore, the District Court was correct when it dismissed the custody related claims.

As a side note, I think it’s interesting that the Supreme Court went to the trouble of defining temporary absence here. Usually, appellate courts limit themselves to only deciding issues that are necessary to resolve the conflict. Here, the ultimate decision was factual: that the child fully relocated to Canada in February. Even if the absence was temporary, we don’t get to five months. So it didn’t really matter what the definition of temporary absence was – at least to this case.

Appealing Divorce Decisions in Montana

Unlike many other states, Montana does not have an intermediate appellate court and, instead, district court cases in Montana are appealed directly to the Montana Supreme Court.  If you have had a divorce or parenting trial and believe that the result was improper under the law, your remedy is generally to initiate an appeal to the Montana Supreme Court.

The Montana Supreme Court is located in Helena, MT.   All appellate proceedings take place in Helena (except in a few limited circumstances), regardless of where you live in the state and regardless of where your district court case took place.  The beauty of the appellate court being located in Helena is that parties have an entire state of attorneys to choose from.  You can easily hire an appellate attorney on the western half of the state, even if you live in Eastern Montana.

After having been through months of litigation in district court, you will find that appellate procedure is a lot different than trial court procedure.  Generally speaking, the Montana Supreme Court decides issues of law, not issues of fact.  In other words, appellants argue that the district court made the wrong decision as a matter of law.  This means that you cannot necessarily appeal just because you were unhappy with the result at district court.  Instead, you have to have a legal basis for your appeal.  Unlike district court, the Supreme Court will never hold a hearing where the parties tell their side of the story.  Instead, the Supreme Court sees a transcript of the trial, along with the district court file.   Most family law litigants never even see the Supreme Court.  Instead, the parties submit briefs and the case is generally decided based on those briefs only.

Because appellate procedure can be very different from regular district court rules, many litigants choose to use a different attorney for appellate work than for district court/trial work. It can often be beneficial to have a fresh set of eyes look at your case or prepare it for appeal. Most importantly, you want to be sure to utilize someone with appellate exprience and with experience in research and brief writing.

Alternatives to a Litigated Divorce in Montana

When I sit down with a client for the first time, very few say to me, “Marybeth, I want this to be expensive, take forever, and be a generally horrible experience for all involved.”  Instead, most clients hope their divorce can be like ripping off a bandaid – quick, easy, and with minimal pain.   While we cannot always accomplish that goal, the way we start a case can have a dramatic effect on the cost, time frame and overall experience.

Before diving into divorce litigation, consider your alternatives to “regular” divorce litigation.  If you have an ex that wants to make it a less painful process, you may find that you can get in and out of the divorce process with minimal scar tissue.

Do-It-Yourself Divorce

Divorce can be very complicated, both legally and financially.  If not handled correctly, you can make mistakes that will have major consequences.  Generally speaking, I discourage most people from trying to do their divorce completely on their own.  It is well worth the few hundred dollars it will cost to at least sit down with an attorney to evaluate your case.

However, there can be cases where a Do-It-Yourself divorce makes sense.  For example, if you’re marriage was very short, you did not accumulate property or debts during your marriage and you don’t have any children.  In other words, if the only thing you are trying to handle is ending the marriage, a Do-It-Yourself divorce might be a possibility.

Mediation

In divorce mediation, rather than the parties retaining attorneys to fight, a divorcing couple works with a neutral mediator who helps both parties come to an agreement on all aspects of their divorce. The mediator may or may not be a lawyer (although I suggest you utilize a lawyer).  The mediator MUST be a neutral party and cannot advocate on the behalf of one party or the other.  They may, however, bring up issues you and your spouse hadn’t thought about and suggest that you and your partner work those issues out in mediation.

If mediation works, it can be fast, effective and affordable.  If it does not work, you may have spent time and money that would have been better spent on litigating your case.  Mediation is a good option in a large number of divorce cases.  If you have concerns about disclosure of assets/liabilities or there are abuse concerns, mediation probably isn’t for you.

If you do mediate, make sure that you have an attorney review any agreement BEFORE you sign it.  Once it is signed, it may be too late to make changes.

Collaborative Divorce

Although not particularly popular in Montana, collaborative divorce can be a great idea.  Basically a collaborative divorce is when a couple agrees to work out a divorce settlement without going to court.  During a collaborative divorce both parties retain their own attorney.  Instead of simply advocating for your position, the attorneys will assists their client in negotiating a settlement agreement. The collaborative process may also involve other neutral professionals such as an accountant or financial planner, who will help the parties work out agreements on financial issues.  You may also see a counselor or guardian ad litem involved to assist the parties in reaching agreements on parenting.

A collaborative divorce generally includes an agreement that the attorneys involved will only assist the clients during the collaborative process.  In the event an agreement cannot be reached and limitation ensues, the attorneys may have to withdraw and the parties may have to start from scratch with new counsel.

If a divorce is particularly heated, the collaborative process might not be very successful.  When financial issues are complex or there is a lack of disclosure, collaborative divorce may not be the thing for you.

In general, if there are concerns that your spouse is hiding assets/income, if there are abuse concerns or a history of domestic violence, or if there are drug or alcohol issues, see an attorney before initiating one of the divorce litigation alternatives.   As always, ensure that you speak with an attorney before you sign on any dotted line.

An Introduction to Calculating Child Support in Montana

Technically, child support is defined by Montana statutes. Really though, the statutes just assign the job of determining a formula for child support to the Department of Public Health and Human Services (DPHHS). The department is an administrative agency, tasked with maintaining a formula for determining child support and enforcing child support across the state. This does not mean that the Courts have nothing to do with determining child support, but that relationship is complicated and a topic for another day.

DPHHS is made of a number of different departments including the Child Support Enforcement Division (or CSED). CSED’s mission is to diligently pursue and ultimately achieve financial and medical support of child by establishing, enforcing, and increasing public awareness of parental obligations. Their services include: locating absent parents; establishing paternity; establishing financial and medial support orders; enforcing current and past-due child support; offering medical and spousal support; and modifying child support orders.

In order to determine what a parent may owe (or be entitled to) in child support, the department has created the Child Support Guidelines. This is a large formula that results in an amount owed by one parent to another. This amount is presumptively correct, and generally reflects what the actual payment in child support will be. The guidelines take into account a huge number of factors including all the income that both parents receive during a year from ALL sources. It also factors in deductions, time spent with the children, costs of the children, costs of travel to exercise visitation, and a huge number of different factors. You can see the worksheet by clicking on this link.

Like any formula, the result is only as accurate as the numbers you start with. And while you may have access to your own financial information, it may be difficult to find information about your co-parent’s financial status. Montana law mandates that all parents involved in a child support action complete a Child Support Affidavit under penalty of perjury. Theoretically, this document should supply the other parent with enough information to correctly complete the guideline calculation. If you believe that your co-parent is hiding information, assets, or income from you, the best course of action is to speak with a Montana child support lawyer. If you are representing yourself, it is also important that you draw these concerns to the Court’s attention.

Child support calculations are important, and unavoidable. A parenting plan action in Montana is required to also include provisions for child support and medical care. And, raising a child is expensive. While it may not seem like an important issue now – down the road it will.

Montana Divorce or Child Custody Appeal

Montana’s Constituion allows for direct appeals from Distrt Court judgments or orders (whether the case is civil or criminal), directly to the Montana Supreme Court.  Unlike many other states, Montana does not have an intermediate appellate court.  Instead, cases go directly from District Court to the state Supreme Court.

The party that initiates an appeal is called the “Appellant.”  The party responding is called the “Appellee” or “Respondent.”  Appellate is a very different animal than district court.  Appellate procedure has its own set of rules, separate from the Montana Rules of Civil Procedure.  The appellate rules are called the Rules of Appellate Procedure and can be found in Title 25, Chapter 21 of the Montana Code.

The Montana Supreme Court is located in Helena, MT.  This means that any documents filed in your appeal are filed in Helena and any oral argument would take place in Helena (except in a few very limited circumstances).  Oral argument does not happen in all cases.  In fact, many appeals never require an appearance in person at the Montana Supreme Court.   The great thing about that is Montana litigants have a much larger pool of attorneys to choose from.  You could easily hire an attorney at the other end of the state to handle an appeal.  All the documents go to the place regardless ofwhere you live!

If you are appealing a family law case from a Montana District Court to the Montana Supreme Court, you will likely have to head back to mediation.  Under Rule 7 of the Montana Rules of Appellate Procedure, domestic relations (divorce/parenting/child support/maintenance) cases are submitted to mandatory appellate alternative dispute resolution (i.e. mediation).

Because appellate procedure can be very different from regular district court rules, many litigants choose to use a different attorney for appellate work than for district court/trial work.  It can often be beneficial to have a fresh set of eyes look at your case or prepare it for appeal.   Most importantly, you want to be sure to utilize someone with appellate exprience and with experience in research and brief writing.

Surviving the Holidays After Divorce

Though many consider the holidays to be a time to celebrate peace and love, divorced couples can find it difficult to put down their swords.  The holidays can be difficult for divorced parents, but even more so for their children.  The following tips from licensed psychotherapist Donna Ferber should help such parents help their children have a better holiday season:

  1. Money, gifts, sweets and indulging don’t “make up” for anything. Your child is going to have TWO Christmases. No need to feel guilty. Most kids say the dual holidays are the best thing about being a divorced kid.
  2. If possible, make your plans with your ex-spouse ahead of time and stick to them. Let the kids know where they will be and when. It helps them feel in control. Let them make only age appropriate decisions. A good rule of thumb: if it is not a decision you would let your children make while you were married, then don’t let them make it now. Let your kids be kids.
  3. Be flexible. No, this is not a contradiction of #2. It means that stuff happens. So if your ex is two hours late because of an ice storm or because his cousin Joey showed up late, try to let it go.
  4. Keep your anger, resentment, annoyance, disgust about your ex, his sports car, his/her new love and his family, to yourself. Remember, your kids are part of both of you and when you slam your child’s other parent, your child feels slammed as well.
  5. Do not make your children responsible for your happiness. “Go have a good time with Dad in Jamaica, while I sit here miserable and all alone,” only breeds resentment and guilt in your child.
  6. Don’t compete. If he can afford more than you – fine. Rather than resenting his/her father( or mother), appreciate that your child can experience things you can’t buy him/her. Don’t overspend to keep up. Make memories by doing fun things together – bake cookies, read a Christmas story, build a snowman. Money does not buy love.
  7. The new girlfriend (or boyfriend) cannot and will not take your place.Children are unbelievably loyal. They can love many people, but the title and honor of parent is yours and will be only yours forever. So, relax. Deal with your jealousy without making your kid responsible for your feeling threatened. This is simply not the job of the child.
  8. Divorce is the severing of the adult relationship and should not be the termination of the parent-child relationship, no matter how much you really can’t stand him/her. If your child is not in harm’s way, the relationship needs to continue. This is the CHILD’s right. If you really feel the child is in danger, then get a lawyer, prove it and have supervised visitation. Never keep a child from being with a parent based on your own feelings!
  9. Lastly, remember that you are the adult. Suck up your anger toward your ex and make the holidays wonderful for your kids.

Source:  “Children, Divorce & the Holidays: Making it Happy not Horrible!” by Donna F. Ferber, LPC, LADC, a licensed psychotherapist in Connecticut and the author of From Ex-Wife to Exceptional Life: A Woman’s Journey through Divorce, which won an Honorable Mention Award by the Independent Publishers Association. To read more about the author and her work, please visit www.donnaferber.com.

Top Five Questions About Montana Guardians ad Litem?

Now that I have expanded my practice to include guardian ad litem work, I am receiving dozens and dozens of questions about what guardians ad litem do and do not do.  The following questions seem to be the top five:

1.  Does a Guardian ad Litem have to be a lawyer?

Montana law does not require that guardians ad litem be licensed attorneys.  In fact, in dependency/neglect cases, many guardians ad litem are not attorneys.  In custody and divorce cases, I strongly suggest the parties utilize a guardian ad litem that is a licensed Montana attorney, well-versed in Montana family law.

While a GAL may be a lawyer, the GAL is not technically a lawyer for the children.  The distinction seems minor, but can be incredibly important.  A GALs’ job is to make a recommendation to the Court regarding what is in a child’s best interest, even if it is contrary to what a child desires.  A child’s lawyer, on the other hand, would be expected to advocate on behalf of the child’s desire, even if the desire were not in the child’s best interests.

2.  How much do Guardians ad Litem cost?

Because most GALs are license attorneys, the cost is similar to that of an attorney.  However, GAL fees are usually split between the parties.  Often times the cost is split equally, but if the incomes of the parties are very disparate, the court may order a different split of the GALs fees.

3.  How long does a GAL take to do an investigation and report?

Depending on how complicated the case is, how accessible the parties are and how many other professionals need to be consulted with, a GAL can take anywhere from a couple of weeks to several months to do their investigation and report.

4.  What determines whether a GAL becomes involved in the case?

There are basically two ways a GAL becomes involved in a case.  First, the parties might agree that the case is complex enough that a GAL should become involved.  In that circumstance, the parties will enter into a stipulation or agreement appointing a GAL.  In other cases, only one of the parties may feel a GAL is appropriate.  If the other disagrees, the party desiring a GAL will file a motion for appointment of a GAL with the Court.  The other party will have the opportunity to object and then the court will make a decision.

5.  What factors does the GAL consider during her/his investigation?

When investigating and reporting to the Court, the GAL should consider: the wishes of your child and both parents; the safety and well-being of the child; the child’s relationship with both parents and other family members; the cooperation and communication between parents and whether either one unreasonably refuses to cooperate or communicate with the other; a parent’s likelihood to interfere in the other parent’s continuing relationship with the child; any physical abuse or problems with alcohol or drugs; the reports of appropriate professionals (counselors, doctors, etc.); and other significant factors that would affect the child’s well-being.

 

Marybeth Sampsel now performing Guardian ad Litem Services in Flathead County, Lake County and Lincoln County

I have written several articles about guardians ad litem being utilized in Montana child custody/parenting case or Montana divorce cases.  There are several great attorneys doing guardian ad litem work in Flathead County, but it seems guardians ad litem are still pretty hard to come by.   After careful consideration, I have decided to expand my practice to include guardian ad litem services.  I will handle cases in Flathead County, Lake County or Lincoln County.

For those of you unfamiliar with guardian ad litem work, a guardian ad litem (also referred to by the acronym “GAL”) acts as a quasi-representative for minor children involved in custody/parenting cases or divorce cases.   GALs report and recommend to the court what they think would be the best parenting plan for a child.  GALs generally do a thorough and independent investigation prior to making a report and recommendation to the court.  The GAL meets with the minor child(ren); meets with both parents; speaks with other family members, teachers and providers; and visits the parents’ homes.  In other words, the GAL has the opportunity to speak with and see a lot more than a judge is able to see when sitting on the bench.  After reading the report and recommendation from a GAL, the judge has the opportunity to put the GALs recommendation in place, approve it in part or reject it entirely.

As a GAL, I plan to provide thorough, efficient and timely services.  I understand the importance of resolving parenting cases as quickly as possible, while still taking the time to do a thorough investigation.  I also understand that by the time a GAL is involved, the parties may be feeling financially strained.  I look forward to serving the families of the Flathead, Lake and Lincoln counties.

For more information on guardians ad litem, read my blog over the next few weeks.

If you are interested in retaining me to act as a guardian ad litem in your case, please contact me at (406)752-6373.

Grandparents Rights in Montana

In Montana, grandparents can petition the Court for visitation rights with a grandchild, even over the objections of a parent. This is called third-party contact, and it is usually something a parent decides on. But sometimes, family situations require that the Court step in and make a decision that is in the child’s best interests. Obviously, the best result is when everyone can agree and get along, but the reality is that this isn’t always the way it happens. As a grandparent, taking the time to establish your rights can mean the difference between a life-long relationship and estrangement.

Grandparents Rights in MontanaA grandparent who wants the Court to order contact with his or her grandchild, must first have the judge determine if the parent is fit. If a parent adequately cares for her child, she is fit. If he does not, he is not fit.

If the parent is unfit, then the contact must just be in the best interests of the child. If the parent is fit, the grandparent needs to show that the visits are in the child’s best interests and also needs to rebut a presumption that the parent’s wishes are what’s best for the child. This is in keeping with the Unites States Supreme Court’s decision in Troxel v. Granville.

In Troxel, the father committed suicide in Washington state leaving behind two daughters and their mother (whom he had not married). The mother married and her new husband adopted the children and limited the father’s parents visitation rights. The US Supreme Court found that the Washington State law was too broad and said that it infringed on parental rights. This has become the standard that all the states must follow and which Montana does. If a parent is fit, the grandparent must overcome a significant burden.

If you are a grandparent who is being denied visitation with your grandchild, contact a montana family law attorney to learn more about your rights. If you’re not ready to take such a drastic step, there are other options to consider. Some families have had success with mediation (either with a trained mediator, or even a family priest or pastor). Sometimes, just sitting down as a family for a frank discussion about the problems can sometimes produce good results as well.

It’s also important to remember that law differ from state to state. While you may have a friend who went through the process in another state, their experience may have been wildly different from what you will experience here in the big sky state. Just remember, the best way to know what your rights are as a grandparent in Montana is to discuss the situation with a local lawyer.

Thanksgiving After Divorce

During and after a divorce, Thanksgiving can be a difficult hurdle. Especially the first time. A holiday meant to celebrate togetherness and family can be especially hard on children suffering the loss of exactly that stability. During your first Thanksgiving apart, you should expect to feel sad. More importantly, you should expect your children to feel sad. Emotions like sadness, confusion, and even anger are common and should be expected from children and yourself.

Some of my clients have developed different strategies to cope around Thanksgiving. One of my favorite is when the forge ahead and create new traditions. Some volunteer with community outreach programs like soup kitchens. Others visit a different relative for the Thanksgiving dinner. Whatever you do, take some time to imagine a new tradition. Even if you only do it for one year, the change can do everyone good.

Other family members are important too. You might feel like a burden, talking about your feelings and sadness. But, at the risk of being cliche, what are friends for? I’m not suggesting that you spend the entire Thanksgiving weekend in a fog of sadness, but allowing yourself to feel those emotions isn’t a bad thing. If you need a shoulder to cry on, let your friends and family be there for you. Get it out of your system, so that the celebration itself can be about a new beginning.

A new factor that can’t be avoided is scheduling. Odds are, your children will now have two different Thanksgiving dinners to attend. The best results I’ve seen come from families who recognize that Thanksgiving is just a day, it’s the celebration that is important. And that celebration can be repeated on any day. Scheduling Thanksgiving dinner for Friday doesn’t change the holiday, and with some flexibility like that – both parents can have a great holiday with the kids. After all, what’s more important: the day of the week or time with your children?

And whatever you do, don’t bring the kids into any scheduling conflicts with your ex. It’s not their fault. And frankly, there’s no reason they should even know about them. Finding time to sit down for the holiday meal is your responsibility. This is going to be stressful enough with all the changes. Don’t make things worse.

Even in the midst of divorce, there are still reasons to be thankful. That’s the reason for the holiday, and family disruptions or not — remembering that is beneficial for everyone. Take some time, and make a list of things that you are thankful for. It might be hard at first, but ultimately it could bring some perspective that will improve the day for you and your children.