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.
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.
Over the next several weeks, I will be posting a series of entries regarding what occurs at Montana divorce or parenting trials and hearings. For more information, see Part 1 of this series. Today’s blog post focuses on the UNCONTESTED HEARING, also know as the SHOW CAUSE HEARING.
Uncontested or “show cause” hearings are very brief hearings that allow the court to determine what other procedural steps may need to be taken and to put short-term relief into place. There are two divorce/parenting situations where uncontested/show cause hearings are most often seen, though a show cause hearing could be held on nearly any motion. The first common reason a show cause hearing is held is in cases where an Order of Protection is sought. In Flathead County (and this generally should happen throughout Montana), a show cause hearing is set within twenty days of issuance of a temporary order of protection. Show cause hearings are also scheduled any time an ex parte motion is filed – often seen when one party is seeking an ex parte interim parenting plan. ”Ex parte” is fancy Latin term, which really means that one side is seeking a decision from a judge before the judge has the opportunity to hear from both parties. Ex parte matters should be reserved for emergency situations, thoughthat is not always the case.
If both parties appear at the hearing, the Judge will first determine if the matter is “contested.” Contested means that the parties do not agree on what the Judge should do. For example, one party may have asked for a temporary order of protection, but the other party denies that an order of protection is necessary. Because the parties do not agree, the matter is considered contested.
If it becomes clear that the matter is not contested, the Court will generally put into place what the parties agreed upon. If a party contests a matter but does not show up to the hearing, the Court will generally grant the relief requested by the moving party (i.e. the person that filed the motion).
If the matter is contested, the court generally has three options available:
(1) If the court has already granted some sort of short-term relief (i.e. a temporary order of protection or interim parenting plan), the Judge may decide to keep that relief in place. Then, a contested hearing will be scheduled so that the parties can present evidence and testimony to the court; or
(2) The court may change the short-term relief that had previously been requested. For example, if the court issued a temporary order of protection on an ex parte basis, but then became aware of additional information that changes the court’s opinion, the Judge may put different short-term relief into place. Then, a contested hearing will be set; or
(3) The court could also order the parties to engage in some sort of dispute resolution before a contested hearing will be set. For example, the Judge could require the parties attend mediation, obtain a guardian ad litem, etc. Generally, the court will require that order be complied with before a contested hearing will be scheduled, but that is not always the case.
Because show cause hearings are scheduled very quickly and often on an emergency basis, the Judge will likely not have the opportunity to have a full-blown hearing. In other words, the show cause hearing is to put a band-aid in place until the Judge has the opportunity to have a hearing where evidence can be submitted and testimony can be heard. Show cause hearings are very brief and are simply not lengthy enough for a party to present their entire case. Even though show cause hearings are generally very short, I strongly urge anyone attending a show cause hearing to be prepared and have all their information and evidence available in the event the Judge has time to hear the case.
This is Part 3 of a series dedicated to appealing Montana divorce cases or Montana parenting cases. See Part 1 and Part 2 for more information.
Though there are several other documents that are required in throughout the appellate process, the “guts” of the case is set forth in a brief filed by each party. A brief is a written argument filed by each party that explains why that party should win. The brief explains to the Montana Supreme Court the facts of the case, the procedural posture (what happened at district court) and the argument of law.
Once the Supreme Court has made their decision, it will be set forth in an opinion. The opinion is a written explanation of the Court’s decision. Past decisions by the Montana Supreme Court can be located at the Montana Courts website. The Montana Courts website also provides copies of the briefs filed by each party.
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.
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.
On May 9, 2011, and May 16, 2011, the Nurturing Center is offering a two-part class entitled “After the Storm: Surviving High Conflict Divorce.” The class is aimed at those parents who have already completed the Flathead County District Court required class, “Children in the Middle,” and are in need of additional education regarding shielding children from conflict between divorced or divorcing parents. According to the Nurturing Center website, the course will “help you problem-solve parenting issues and communicate your needs without conflict.”
If you are interested in the course, pre-registration is required. You can contact the Nurturing Center in Kalispell by calling (406)756-1414 or by visiting the Nurturing Center website.
This post is the fourth in a five part series on questions you should ask your divorce attorney before you sign on the dotted line. Check out Part I here, Part II here, Part III here – and look forward to Part V in the next few days.
QUESTION 4: WHAT ABOUT MEDIATION?
Mediation can be a great way to fast-track what is often an incredibly slow, arduous divorce process. If the parties agree to attend mediation early on and the mediation process is successful, it can be cheap (relatively), fast, and amicable. There are a number of attorneys that do a great deal of family law, divorce, or child custody mediation in the Flathead/Kalispell area. If you are looking for a mediator, consider the following Flathead/Kalispell mediators (listed in no particular order): Shelly Brander at Kaufman, Vidal, Hileman, P.C. in Kalispell, MT; Vanessa Ceravolo in Kalispell, MT; Mary Obermiller in Kalispell, MT; Randy Schwickert in Whitefish, MT; Brian Muldoon in Whitefish, MT; or Joyce Funda in Kalispell, MT. Choosing a mediator is as important as choosing a lawyer. Feel free to shop around for the attorney that fits your needs. I encourage clients to find out the hourly rate of the mediator, the mediators availability, and to make sure they are comfortable with the mediator.
While Flathead County District Court has a local rule that requires alternative dispute resolution (i.e. mediation or settlement conference) prior to trial, parties are not required to attend mediation early on in the process. In other words, the parties must agree if the mediation is to take place early on in the divorce process. Some couples go to mediation before either one has filed for divorce or even before they have separated. Luckily, it seems most family law attorneys in the Flathead/Kalispell area are in agreement that early mediation can be beneficial in many circumstances. There are some cases, however, that early mediation is not the best option.
If you are represented by an attorney, you may want to discuss how your attorney can be a part of the mediation process. Many clients choose to take their attorneys to mediation. While that is a great idea, it can also be expensive – a client is paying for the attorney and the mediator. Talk with your attorney about ways they can assist you in the mediation process, while also conserving your valuable resources. Many of my clients choose to attend mediation (though I prepare them for the process) on their own and simply check in with me before they sign any settlement agreement on the dotted line.
Part III – Five Questions Every Client Should Ask Their Montana Divorce Attorney
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Part I – Five Questions Every Client Should Ask Their Montana Divorce Attorney
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Saturday, March 26, 2011 – 9:00 a.m. at Whitefish Public Library
A panel of local experts will provide a free seminar on the emotional and legal aspects of child custody disputes, co-parenting and divorce at the Whitefish Public Library on March 26 from 9:00 a.m. until noon. “MARRIAGE IN CRISIS: What You Need To Know When the Bottom Drops Out” is sponsored by the HeartWorks Mediation Center in Whitefish.
The panel includes newly-elected District Court Judge David Ortley, Whitefish family mediator Brian Muldoon, Kalispell therapist Dr. Angela Jez, and divorce lawyers KayLynn Lee, Marybeth Sampsel and Kai Groenke. Jolie Fish, Director of Family Court Services, will explain how her agency helps the court decide difficult parenting issues.
The panel will discuss a wide range of topics, from deciding whether the marriage can be salvaged to knowing how to resolve parenting and financial issues raised by the divorce process. Following the panel discussion, lawyers will be available to provide free 15-minute consultations. These brief sessions will provide an opportunity to make initial assessments and get specific answers to legal questions. It is recommended that participants write down their questions in advance.
Divorce is an ordeal that challenges us in every way imaginable. Whether the conflict shows up around money, parenting or feelings of betrayal, few of us are prepared to deal with the fallout. It is vital to understand the emotional aspects of divorce as well as the legal part of the process. No matter what direction you go, getting the right information is a good place to start.
For more information, contact Brian Muldoon at HeartWorks Mediation Center at 406-862-9292
or heartworks@montanasky.com .
