When is an Absence Temporary in Child Custody Disputes?Marybeth Sampsel
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.