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.

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.

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.

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.

A 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.

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?

According to the CDC, childhood obesity is determined by comparing the BMI of a child to the corresponding BMI-for-age and sex percentile. For children aged 2-19 years, overweight is defined as a BMI at or above the 85th percentile for children of the same age and sex. Obesity is defined as a BMI at or above the 95th percentile for children of the same age and sex.

The consequences of childhood obesity can be severe and range from high blood pressure to high cholesterol to insulin resistance to type 2 diabetes. It can cause breathing problems such as sleep apnea and asthma and lead to joint problems and musculoskeletal discomfort. And those are just some of the immediate risks.

Long term, those who are obese in childhood are more likely to become obese adults, which is associated with a number of serious health conditions including heart disease, diabetes, and some cancers. Also, if children are overweight, obesity in adulthood is likely to be more severe.

With all that to consider, it’s no surprise that the blame game for parents of an obese child is common and contentious. But, given the many possible causes of childhood obesity, which range from genetic to environmental, it’s very difficult to prove one parent was at fault. And that’s where things can get ugly.

At this point, judges have been very reluctant to make parenting determinations based on accusations related to childhood obesity. Absent clear proof of neglect or disregard for a child’s well being, courts have steered clear of this issue. But that hasn’t stopped divorcing parents from dragging their child’s weight into the spot light and trying to use it. And, that hasn’t stopped some states from considering redefining the best interests of a child to include things like diet and obesity.

In other circumstances, however, parenting plan violations are significant enough that a parent feels it is necessary to get the court involved to enforce the parenting plan.  This process is often called a “contempt action.”  Contempt is a finding by the court that someone willfully violated a court order.  When your parenting plan is ordered by the court (either through a trial/hearing or by approving an agreement), it becomes a court order.  As such, violations of a parenting plan are punishable by contempt.

If you file a motion or petition for contempt against the other parent, you will need to give the court information about what violations have occurred.  Because the information needs to be provided, it is important that you keep track of parenting violations in a parenting journal or catalogue.  With good record keeping, you will be able to inform the court about the exact date and time an incident happened, rather than a general “well…this one time…I don’t remember when” situation.

After a motion for contempt is filed, the court will give the other party an opportunity to respond and, eventually, set the case for a hearing.  If the court finds the other person in contempt, that parent can be punished with fines, a money judgment (in circumstances involving failure to pay) and, in very extreme cases, jail time.  Additionally, the court will likely require the parent to comply with the parenting plan going forward.

Filing for contempt can be fairly complex, so it is best if you see an attorney to assist you.  Of course, that isn’t always a financial option.  If you are not able to afford an attorney, consider meeting with an attorney for an hour consultation, so that you can seek advice about your particular case.

REMEMBER:  One parent’s failure to follow the parenting plan does not excuse the other parent from complying.  Even if your ex never follows the parenting plan, it is important that you still comply with the plan.  If you’ve been violating the plan, you will have a heck of a time forcing the other parent to comply.

1.  Kalispell/Flathead County Self Help Law Center

If you are able to visit the Flathead County Justice Center in Kalispell, you can find the Self-Help Law Center on the third floor.   The Self-Help Law Center is open from 9:30 a.m. to 5:00 p.m. on Monday, Tuesday, Thursday and Friday.  There is generally a resource officer on staff and can help you locate the documents needed to file for divorce or parenting on your own.

2.  Nurturing Center

From supervised visits to parenting education, the Nurturing Center provides comprehensive support to families in the Flathead Valley.  Located at 146 Third Avenue West in downtown Kalispell, the Nurturing Center can provide valuable parenting resources to those involved in Kalispell child custody/parenting cases, whether or not an attorney is involved.

3.  MontanaLawHelp.org

Whether or not you live in the Flathead, MontanaLawHelp.org offers free fill-in-the-blank dissolution and parenting plan forms.  While I highly recommend all people looking into filing for a dissolution or parenting plan at least meet with an attorney to discuss their legal options, the Montana Law Help forms can keep the overall cost of your divorce down.

As always, I encourage anyone going through a child custody or parenting case to meet with an attorney to discuss their options.  Even when you may not be able to afford an attorney to assist you throughout your case, an hour consultation is likely worth your time and money.

Not only is divorce incredibly difficult, but it’s also emotional. This is an explosive combination that can make everything worse. An experienced divorce lawyer, in Missoula or the rest of the country, understands that burden and represents all your needs. Sometimes, a guiding hand is as important as technical legal advice. This is the philosophy I bring to all my divorce and child custody cases, and it’s one I know my clients appreciate.

When children are involved, a deft touch is even more important. In cases of child custody or parenting plan modifications, I pride myself on representing my clients by also representing their children. While some lawyers build a reputation on being adversarial “trial lawyers,” I see no reason to create conflict and strife unnecessarily. A good lawyer can be a zealous advocate without adding stress and aggression to an already tense situation.

Although my office is located in Kalispell, I represent divorce clients across the state. Modern technological developments make it as easy to communicate and share documents with clients in Missoula as anywhere else. If you need a Missoula divorce attorney, please call me today at (406) 752-6373 to schedule a consultation.