Domestic Violence

Appealing a Montana Divorce Case or Appealing a Montana Parenting Case

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.

Montana Supreme Court: Mediation not mandatory in divorce/parenting cases where abuse is suspected

In a case decided on April 12, 2011, the Montana Supreme Court ruled that domestic violence victims no longer can be forced into mediation over parenting plans in Montana divorce cases.

The case, entitled Hendershott v. Westphal, makes clear that MCA 40-4-301(2) “explicitly prohibits courts in family law proceedings from authorizing or continuing mediation of any kind where there is a reason to suspect emotional, physical or sexual abuse.”  In other words, a court can no longer mandate dispute resolution or mediation when abuse is reasonably suspected.

Perhaps more significant is the Court’s determination that the statute does not require proof of abuse “by clear and convincing evidence, a preponderance of the evidence, or even probable cause.”  Instead, a court must simply have a “reason to suspect” that emotional, physical, or sexual abuse has taken place.  If a reason to suspect is found, no mediation can be mandated.  

Read the full opinion of the case at the Montana Courts website

Montana Family Law Legislative Bill Update 2011 – Marriage Counseling

Rep. Tom McBillvray has sponsored a bill that could affect many Montanans that file for dissolution of their marriage in this state.  House Bill 438 was introduced on February 7, 2011.  If passed, the bill would require those with minor children to attend counseling before the district court could make a finding that the marriage is “irretrievably broken.”

The bill goes on to specify what type of counseling would be required, the topics that must be covered, the amount of counseling that must take place, and the type of counselor that must be utilized.

The most problematic aspect of the bill is the proposed subsection 5(b), which states that the counseling requirements do not have to be met “if there has been a claim of physical abuse of one of the parties by the other.  Corroboration is not required for a claim of physical abuse….”  Appropriately, the bill makes room for those that have been physically abused, as I think most would agree that forcing parties to undergo counseling when there has been physical violence is not appropriate.  My concern is that more and more claims of physical abuse will be made, just so that litigants are able to avoid the counseling requirement.  Since corroboration of the claim is not necessary, a litigant would understand that they do not need to have prove that physical abuse has occurred.

Another concern is how the court handles this statute if a party defaults.  If a party fails to respond to the petition for dissolution in an appropriate amount of time, the court may enter that party’s default and grant the dissolution according the petition.  If counseling is automatically required, how does the court grant the dissolution?  And more importantly, if a person does not even respond to a petition for dissolution, is it reasonable to think they will willing go to counseling?   I doubt it.

While I am not particularly a fan of the entire proposal, a better option may be to include a provision that allows the District Court to waive the counseling requirement if appropriate.  It would prevent litigants from being punished for their spouse’s refusal to participate.

Follow this bill here.

Libby MT Divorce Lawyer

One Aspect of my practice that surprises my clients is that I often represent clients in Libby, MT and the rest of Lincoln County.  Understandably, being over an hour away, it may seem like this would be a major inconvenience.  However, the nature of Montana divorces and family law cases means that most of them settle without ever setting foot inside a court room.  That, combined with the advantages and flexibility of technology like email, phone conferencing, and computer scanners allows me to work with out of town clients as easily and productively as those located more locally.

The end result is that many of my Libby clients see little or no extra charge.  Of course, each case is unique and, as I’ve discussed before, I make no guarantees or predictions about final costs.  That being said, many of my clients are from Libby and have decided that hiring me was their best option.

Whether you are from Libby or anywhere else in Montana, if you are facing divorce or any other family law issues, please consider calling myself or another attorney in order to discuss your case.

Safety Alert – Internet and Computer Safety

SAFETY ALERT – INTERNET AND COMPUTER SAFETY. When visiting this blog or any other website concerning domestic violence, it is possible for your abuser to find out you have been getting information. If you are in danger, please try to use a computer that someone abusive does not have direct or remote access to. Here are some suggested precautions from the MCADSV website:

  • If you think your activities are being monitored, they probably are.  Abusive people are controlling and want to know your every move.  You don’t need to be a computer programmer or have special skills to monitor someone’s computer and Internet activities – anyone can do it and there are many ways to monitor with programs like Spyware, keystroke loggers and hacking tools.
  • It is NOT possible to delete or clear all the “footprints” of your computer or online activities.  If you are being monitored, it may be dangerous to change your computer behaviors such as suddenly deleting your entire Internet history if that is not your regular habit.
  • If you think you may be monitored on your home computer, be careful how you use your computer since an abuser might become suspicious.  You may want to keep using the monitored computer for innocuous activities, like looking up the weather.  Use a safer computer to research an escape plan, look for new jobs or apartments, bus tickets, or ask for help.
  • Email and Instant/Text Messaging (IM) are NOT safe or confidential ways to talk about the danger or abuse in your life.  If possible, please call a hotline instead.  If you use email or IM, please use a safer computer and an account your abuser does not know about.
  • Computers can store a lot of private information about what you look at via the Internet, the emails and instant messages you send, Internet-based phone and IP-TTY calls you make, web-based purchases and banking, and many other activities.
  • It might be safer to use a computer in a public library, at a community technology center (CTC), at a trusted friend’s house, or an Internet Cafe.

If you are in danger, please:

  • Call 911
  • Call your local hotline
  • Call a national hotline
  • US National Domestic Violence Hotline at 1-800-799-7233 (SAFE) or TTY at 1-800-767-3224
  • US National Sexual Assault Hotline at 1-800-656-4673 automatically connect you to a local US rape crisis program near your phone number’s area code.
  • US National Teen Dating Violence Helpline at 1-866-331-9474

Remember that “corded” phones are more private and less interceptable than cordless phones or analog cell phones.

Be aware you may not be able to reach 911 using an Internet phone or Internet-based phone service.  So you may need to be prepared to use another phone to call 911.
Contact your local domestic violence program or shelter to learn about free cell phone donation programs.

Domestic Violence Resources for Flathead County

Unfortunately for many Montanans, domestic violence, or intimate partner violence, is a part of their everyday lives, as well as their divorce. The Centers for Disease Control have termed intimate partner violence as the number one health threat facing women in the United States today. In Montana alone, approximately 18,000 individuals seek direct assistance for issues related to domestic violence including shelter, legal advocacy and crisis counseling.

The Montana Coalition Against Domestic & Sexual Violence (MCADSV) was incorporated in 1986 and today has over 50 programs across the State of Montana that provide services to victims and survivors of violence and their children.

For those individuals residing in Flathead County, Lake County or Lincoln County, Montana, there are a number of domestic violence resources available.  These services help residents of Bigfork, Kalispell, Columbia Falls, Whitefish, Libby, Polson, Ronan, Pablo, and many more.

Violence Free Crisis Line
Office: (406) 752-4735
24-Hour Crisis Line: (406) 752-7273
Service Area: Flathead County

Lincoln County Help Line
Office: (406) 293-9141
24-Hour Crisis Line: (406) 293-3223
www.libby.org/~lcwhl
Service Area: Lincoln County

Lincoln County Victim Witness Program
Office: (406) 293-7781 ext. 276
www.lincolncountymt.us/victim_witness_advocate.htm
Service Area: Lincoln County

CSK Tribal Crime Victim Advocate Program
Office: (406) 675-2700 Ext.1180
Service Area: Flathead Reservation

SAFE Harbor
Office: (406) 676-0800
Service Area: Lake County and Flathead Reservation

DOVES (Domestic Violence Education & Services)
Office: (406) 883-3350
Toll-Free: (800) 831-9987
www.doveslakecounty.org
Service Area: Lake County and the Flathead Reservation