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.

Mediation Gone Awry, Marriage of Anderson

Viola and Gary Anderson entered into a mediated property settlement agreement as a part of their divorce. The district Court approved the property settlement agreement and decree of dissolution. However, afterwards, Viola was less than thrilled with the agreement. She appealed to the Montana Supreme Court raising two issues: 1) Whether the district court abused its discretion when it denied Viola’s Rule 59(e) and 60(b) motions based on the district court’s failure to consider whether the property settlement agreement was unconscionable; and 2) Whether the district court abused its discretion when it determined that the property settlement agreement was valid without a disclosure of assets.

Mediation is a common and important part of most divorce proceedings in Montana. In fact, I would say a majority of my cases are resolved either by formal mediation or by negotiation. Mediation usually results in a faster and more cost-effective resolution. It also produces an outcome that the parties themselves have proposed. This can be much better than a judge making those decisions. But, problems can arise if there wasn’t full disclosure before the mediation, or if the mediation wasn’t conducted properly. In this case, Viola challenged the mediation because she believed that she was going to receive a lump sum cash payment of $3,000,000, and realized belatedly that she was only to receive $300,000.

Viola’s first challenge to the property settlement agreement was that it was unconscionable. As I’ve discussed before, the allocations of marital assets much not be unconscionable, and the district court is required to make that determination prior to entering the decree of dissolution of marriage. However, Viola did not raise this objection at the decree hearing. It appears, that at the time of mediation and the time the decree was entered, she had no objection to the property settlement agreement. Regarding conscionability, the MT Supreme Court had this to say:

The District Court (Sandefur, J.) noted that although Gary received the majority of the real property from the marital estate, Gary also took responsibility for all of the debt owed by the marital estate. Gary estimated that this debt amounted to $500,000. Gary’s certified public accountant submitted an affidavit stating that the Heaven on Earth Ranch and the ranch business had suffered a net loss of $83,000 from 2006 to 2011, and an additional $61,491 loss for bills that should have been paid in 2011 but were not paid until 2012, for a total loss of almost $144,500.

Much like the spouse in In re Marriage of Lawrence, Viola received an upfront payment of cash and assets, and a guaranteed income stream. Viola received almost $900,000 in cash and assets and $24,000 each year for the rest of her life. Gary received more assets than Viola, but he also accepted the risk associated with those assets and the debts associated with those assets.

Based on that, the Supreme Court found that the district court did not abuse its discretion in determining that the property settlement agreement was not unconscionable.

Next, Viola argued that the parties’ failure to disclose assets made the property settlement agreement invalid. Section 40-4-254, MCA, provides that “[a]bsent good cause, the court may not enter a judgment with respect to the parties’ property rights” unless the parties have provided a full disclosure of assets. In this case it is undisputed that no asset disclosure ever took place. However, Viola acted a bookkeeper for the ranch and guest ranch business for a number of years. Further, she didn’t allege that Gary misled her about the existence of an asset, or the value of any asset. Because of all this, the Supreme Court found that Viola had failed to demonstrate that she suffered any prejudice from the district Court’s entry of judgment without a final disclosure of assets.

Marriage of Anderson, 2013 MT 238

Legal Separations

For people not wanting a full divorce (or dissolution as we call it in Montana) there is another option. The law allows you to obtain a legal separation instead. The differences are actually quite small, and in general this isn’t much of a solution for my clients. But, the option exists and people should be aware of it. Particularly for some religious faiths, this can provide an important alternative that makes the most sense in certain situations. If you find yourself wanting a legal separation instead of a divorce, here are some things to think about.

Legal Separations in Montana are governed by Section 40-4-104(2) which allows a District Court to enter a decree of legal separation (instead of a decree of dissolution) if one or both parties request it, and neither party objects. The requirements for getting a legal separation are the same as those for getting a divorce. Specifically, it is available if:

(a) the court finds that one of the parties, at the time the action was commenced, was domiciled in this state, as provided in 25-2-118, or was stationed in this state while a member of the armed services and that the domicile or military presence has been maintained for 90 days preceding the filing of the action;

(b) the court finds that the marriage is irretrievably broken, which findings must be supported by evidence:

(i) that the parties have lived separate and apart for a period of more than 180 days preceding the commencement of this proceeding; or

(ii) that there is serious marital discord that adversely affects the attitude of one or both of the parties towards the marriage;

 (c) the court finds that the conciliation provisions of the Montana Conciliation Law and of 40-4-107 either do not apply or have been met; and

(d) to the extent it has jurisdiction to do so, the court has considered, approved, or made provision for parenting, the support of any child entitled to support, the maintenance of either spouse, and the disposition of property.


Following a legal separation, once the parties have been living separate and apart for six months, either party may ask to have the separation converted into a divorce – which essentially happens automatically upon that request. If the parties have only received a legal separation, they may not marry anyone else, but most of the other requirements of marriage are removed by the decree of separation.

Because of the ease with which a separation is converted into a divorce, it can be an attractive option for people unsure about the divorce process. However, remember that in order to get the separation you have to go through all the different steps that a divorce requires. And then six months later, either party can have it converted into a divorce. While it may seem like a less permanent step, often it just means ripping the band-aid off slowly instead of more quickly.

Estate Planning Considerations in Divorce

Far and away, the most common wills in Montana (and across America I would guess) say something like this: If I die before my spouse, all my property goes to him when I die. If my spouse dies before I do, my property goes to my children in equal shares. It’s popular for good reason: it works in a way most people think is fair. But here’s the catching point: the will doesn’t say “my spouse.” The will names your spouse. It says, “I’m married to Brad Pitt… If my husband, Brad Pitt, predeceases me…” So what happens if I’m not married to Brad Pitt at the time I die?

The good news is that Montana already thought of that. Our laws recognize that at the end of a messy and emotionally draining divorce the last thing you may feel like doing is having a new will drafted. So the law provides a sensible default. It says that if you named your spouse in your will, and executed a will at the time you were married, if you get divorced later we’re going to assume you meant for that to modify the will as well.

So, in the will discussed above, if I divorce Brad but don’t get around to having a new will drafted before I die – the Court is going to read my will as if all the parts included Brad had been deleted. Usually, this makes for a pretty good result. In the most-common scenario I started this article discussing, it would mean that everything would go to my children in equal shares. That’s probably what I would have done if I’d gotten around to making a new will anyway, so I’m happy with that.

But what if, after divorcing Brad, I’d married Ryan Reynolds? Wouldn’t I want my property to go to him? I might. But if I didn’t make a new will and specify that Ryan is going to be in a tough spot. This demonstrates that a sensible default is great, but it doesn’t cover all potential outcomes. I strongly recommend all my clients talk to an attorney about estate planning following a divorce. Whether that’s me or someone else isn’t as important to me, but you should know what will happen when you die. It may be that the default will cover you, but wouldn’t you want to know?

Montana Uniform Transfers to Minors Act

Imagine this situation: you want to give money or property to a young person in Montana, but you aren’t crazy about the idea of them having complete control over the asset right now. Later in life, your grandchild will surely be responsible and able to handle major life decisions very well. But at 16 years old, giving that same grandchild a huge chunk of money may be asking for trouble. What do you do?

A great option is to use the Montana Uniform Transfers to Minors Act which automatically creates a trust and allows you to name a custodian who is responsible for caring for the property until the grandchild (or whoever else is receiving the property) is old enough to handle it appropriately. It applies to anyone making gifts to minors – whether they’re children, grandchildren, nieces, nephews, other relatives or even people of no relation. The important part is that you specify when you give the gift that it’s made under the Uniform Transfers to Minors Act (UTMA).

You’ve always been able to create trusts and appoint a trustee to manage the assets (the same way that a custodian does under the UTMA). But there are some drawbacks to this approach. First and foremost, it is much more complicated that the UTMA. Along with that complication tends to come a higher expense as well. Meeting with a lawyer, having him draft up a trust, executing the trust, and then taking the steps to transfer the appropriate property into the trust (not to mention making sure that everything that should be in the trust stays in the trust) is cumbersome and expensive. The UTMA allows you to avoid all of that and accomplish many of the same things quickly and easily.

So why would anyone do anything else? One drawback to the UTMA is that it does not allow for as much control as a traditional trust does. A major advantage of a trust is that you can specify as much as you want about how the property it to be managed and how it is to be distributed. Another important difference is time frame. The UTMA only lasts until the minor turns 21. At that point, anything left of the gift is given to them in full. So for example, if Grandpa Joe dies and leaves Charlie $200,000 in a UTMA account when Charlie is 15 – whatever is left of that account will be given to Charlie when he turns 21. If there’s $150,000 left in the account at that time, Charlie is about to be a 21 year old with $150,000 in his account and there’s very little that can be done about it. A traditional trust on the other hand can temper that by moving the age of distribution back, allowing for incremental distributions of it over time, or most any other option that you can think of.

The UTMA is great, but it’s not for everyone. If you’re interested, I’d suggesting talking to an attorney or estate planning specialist who can walk you through the benefits and drawbacks as they apply to your situation.

Montana Step-Parent Adoptions

In most states, a step-parent adoption is an easier process than other adoptions, and Montana is no exception. For good reasons, the process is streamlined when a person already acting as a parent is looking to adopt a child. In Montana, if the court is satisfied that the adoption is in the best interests of the child, it can waive the preplacement evaluation and the six-month postplacement evaluation requirements.

After the adoption, the relationship of parent and child and all the rights, duties, and other legal consequences of the relationship exists between the adoptee and the adoptive parent. The former parents are relieved of all parental responsibilities and have no rights over the adoptee except for a former parent’s duty to pay arrearages for child support.

The adoption also has an immediate impact on probate law and the rules for intestate succession. This governs what happens to a person’s property if they die without a will. Although many people believe that the government will get their property and finances if they die without a will, that’s not the case. Instead, there are rules in the law for who the property goes to if you die without a will. For a parent who dies leaving children, his property goes to his children in equal shares. And an adopted child receives the same as any other child. In other adoptions, the adoptee child does not inherit from his former parent (if that parent does without a will), but in the case of a step-parent adoption that’s not the case. There are a number of small differences in this type of adoption, and it’s important that you’re aware of them all before pursuing this course.

If you decide to pursue a step-parent adoption, the first step is to file a petition with the District Court in the county where the child and step-parent live. This asks the court to create a parent-child relationship between the child and the step-parent. The process involves substituting one parent for another. In some cases, the other parent has died or completely disappeared and this isn’t an issue. In other situation, the parent is around but not very involved. Despite an apparent lack of interest, the original parent may still raise a ruckus when asked to give up his rights. Making the original parent aware of the step-parent adoption, and giving him an opportunity to participate in it is absolutely vital to a successful action. You can’t force the original parent to participate, but if you don’t give him a real option you’ll have problems later.

Montana Step-Parent Adoptions require a number of different legal documents: Petition for Stepparent Adoption; Agreement to Accept Temporary Custody; Waiver of Parental Rights; Consent to Stepparent Adoption; Child’s Consent to Stepparent Adoption (if the child is 12 or older). And then there are two orders from the Court: 1) an Order Setting Hearing; and 2) an Affidavit of Inability to Pay.

Do you need to get divorced after common law marriage in Montana?

Montana law recognizes common law marriage, which is a marriage formed without a license and solemnization.  In order to have a valid common law marriage, three elements must be present:

(1) The parties must be competent to enter the marriage.  The competency requirements for common law marriage are the same as those in a traditional marriage.  The parties cannot be related to a certain degree, cannot already be married, cannot be members of the same sex and must have the mental capacity to enter into a marriage relationship.

(2) The parties must have entered into the marriage by mutual consent and agreement.  This means that at the time the marriage relationship was created, both parties agreed and consented to be a part of it.  It does not mean, however, that a party can simply decide to no longer be common law married.  If you and your partner agreed and consented to common law marriage, you cannot just withdraw from the marriage after created.  Instead, the parties to a common law marriage must go through a divorce in the same way a couple that married through a ceremony would.

(3) The parties must confirm the marriage by cohabitation and public repute.  In other words, the couple must hold themselves out as a married couple.  To determine whether a couple has held themselves out as married, the Montana Supreme Court has considered a number of things including, but not limited to, exchanging rings, taking the partner’s last name, filing joint tax returns, referring to one another as “husband” and “wife,” and filing out documents or forms as husband and wife.

Contrary to popular belief, there is no magic period of time that people living together are automatically assume to be common law married.  Montana law requires the existence of all elements.  As such, living together for a number of years, but not holding yourselves out as married, will not automatically result in a common law marriage.

A Common Law Marriage is a REAL marriage, meaning it requires a divorce/dissolution to terminate the relationship.  The parties to a divorce based on common law marriage are dealt with exactly as they would be if they had a traditional marriage.  Occasionally, if parties disagree whether or not they were common law married, the court will have to make a determination whether or not a common law marriage existed.  Upon death of one party, the surviving party to a common law marriage has the same right with regard to inheritance than any traditional spouse would have.

In Montana, a couple can complete an Affidavit of Common Law Marriage to remove doubt as to whether or not a couple was common law married.   Completion of the Affidavit would provide presumptive evidence if the marriage were later disputed.

Learning about courtroom procedure in a Montana divorce or custody case

There is a great deal of valuable and reliable information available for divorce litigants regarding Montana family law works and where to find forms to file.  However, there seems to be a lack of information on how divorce procedure works.  This leaves many litigants, particularly unrepresented litigants, completely terrified of walking into court.  Though it is impossible to convey the finer points of trial advocacy through a blog, some basic tips about what to expect when you walk in to court can help ease some of that anxiety.

Scheduling, practice and procedure can very from county to county and even from judge to judge.  Because of that, I strongly urge anyone with a hearing/trial to go and observe their local court and the judge specifically assigned to their case.  In Flathead County (where I the bulk of my practice takes place), you can access each of the Judges’ court schedules (also known as the “docket”) online.  Nearly all court proceedings are open to the public, so do not hesitate to go see the courtroom, watch your judge in action, and become familiar with how your judge runs her/his courtroom.  I find that seeing where your hearing/trial will take place and watching how your judge works calms a massive amount of those pre-hearing jitters.

If you are involved in a divorce case, you can pick out a hearing for another divorce case.  You will know it is a divorce case because the case will be called “In re Marriage of____.”  For parenting cases, find a case called “In re Parenting of ______.”   Though the online docket does not tell you what kind of hearing it is (i.e. child support, contempt, interim parenting, etc.), you can always contact the Clerk of District Court to find out what kind of motion the hearing is about.

Spending some time in the courtroom is one of the easiest ways to learn about court procedure.  Pay attention to where the parties sit, how witnesses are sworn, and what kinds of questions the witnesses are asked.  Taking this simple step will ease a lot of your concern about heading into a courtroom for your own hearing or trial.

Appealing a Child Custody Case in Montana

While appealing a child custody or parenting case in Montana can be just like any other appeal, there are a few important things litigants need to know when considering whether or not to appeal the district court’s decision.  Parenting/Child Custody cases can be a bit different than other appeals, even divorce appeals.   Here are few things to consider before diving in to an appeal:

1.  You’ll Have to Head Back to Mediation.

That’s right, even though you likely attended mediation prior to going to trial, the Montana Supreme Court will make you take another stab at resolving your case.  If the parties cannot agree on an appellate mediator within 15 days of filing the Notice of Appeal, the Montana Supreme Court will simply assign you an appellate mediator.  You could end up with a mediator on the other end of the state – although the Clerk of the Supreme Court does his best to nominate someone in close proximity to the parties.  Your appellate mediation has to be accomplished within 75 days of the filing of the Notice of Appeal.  If you settle the case, the appeal is dismissed.  If not, you proceed like any other appeal.

2.  You’ve Got to Have a Final Order.

Generally speaking, in order to file an appeal with the Montana Supreme Court, you have to have a final judgment or order from the district court.  Aside from some extraordinary remedies, the Montana Supreme Court is not there to deal with interim issues.  If you have an interim parenting plan you are dissatisfied with, you probably cannot appeal the district court’s decision.  Instead, you will have to wait until you get the court’s final parenting plan.  If there are still problems, an appeal would be initiated at that point.

3.   It Can Get Expensive.

Think your trial was expensive?  Wait for an appeal.  While the overall cost will probably be less than your district court case, the cost of an appeal can rack up pretty quickly.  Your appellate attorney will have to do a huge amount of research and briefing to adequately prepare your case for the Montana Supreme Court.   When it comes to parenting and child custody cases, there is often no cap on the amount of money a parent will spend.

4.  It Can Take Time.

You have probably already experienced a fairly slow moving district court case.  Depending on the county you live in, it may have taken well over a year for your case to get to trial.  In recent years, the Montana Supreme Court has made it a point to clear up their backlog and push cases along as quickly as possible.  They have truly succeeded and the time cases spend at the Supreme Court is often much shorter than the time spent in district court.  Still, litigation just takes time.  For litigants it can feel like forever.  Plan on your appeal taking at least 6 – 8 months.

5.  Its Tough to Do-It-Yourself.

While there are many family law proceedings that parties can handle on their own (particularly if the case is uncontested), an appeal is not really the time to try your hand at lawyering.  Because appeals involve a great deal of legal research and briefing, it is important that you find someone with experience to help you.  In particular, you want to find a lawyer that has experience with appeals and enjoys doing them.  Your trial lawyer might be great, or they may refer you on to someone else.  Either way, if you are going to go to the time and expense of appealing, make sure you find someone to help.

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.