Child Custody

Childhood Obesity and Child Custody

It’s hard to turn on the news without hearing a story about rising rates of childhood obesity across the country. And unfortunately, Montana is no exception. And following the rule that divorcing parents with turn everything and anything into a fight: it’s become a new hot topic in divorce cases.

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.

Montana Child Custody Question: What Do You Do if the Other Parent Does Not Follow the Parenting Plan?

One of the questions I am asked most often is how to enforce a parenting plan when the other parent is not complying with a plan.  Parenting plan violations range from significant (i.e. not returning the child when required to do so) to mild (i.e. taking the child too school late, refusing telephone contact, etc.).   Sometimes, parenting plan violations seem mild enough that seeking court intervention does not make a lot of sense.  In that circumstance, it may be best to keep track of the violations and notify the other parent that they are violating the plan and that if the violations continue, court intervention may be necessary.

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.

Kalispell Child Custody / Parenting Plan Resources – Attorneys, Mediation, Etc.

It has been several months since I have blogged about the resources available to those in the process of divorcing or dealing with child custody/parenting issues in the Kalispell area.  Whether or not you have a Kalispell attorney to assist you with your Kalispell child custody/parenting case, you may want to look into the following resources, many of which are at little to no cost.

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.


Whether or not you live in the Flathead, 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.

Missoula Divorce Lawyer

Anyone facing the end of a marriage wants a trustworthy, dedicated family law specialist who has experience with financial advisers, forensic experts and health care professionals. For residents of Missoula or Missoula County, Marybeth Sampsel of Measure Law Office is exactly that.

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.

Surviving the Horrors of Halloween After Divorce


Halloween is one of the more minor holidays that is often overlooked in a parenting plan.  When you have small children, however, Halloween can be one of the most fun and exciting holidays of the year.  If you are divorced or separated and you have small children, Halloween is an opportune time to work with your ex on co-parenting during the holidays.  Consider Halloween a “practice round” before Thanksgiving and Christmas roll around.

Here are some tips to keep in mind when making Halloween plans this year.

1.  Check your parenting plan, then consider scrapping it.

Some parenting plans do include Halloween.  Make sure that you check yours to see if there is a Halloween provision.  If there is, keep in mind that you are bound to follow the plan UNLESS you and the other parent agree otherwise.   If the Halloween provision already in place makes sense, there may be no need for you to communicate with your ex about changing Halloween plans.  If, on the other hand, Halloween was overlooked in your plan or your Halloween provision just doesn’t make sense, get in touch with the other parent to discuss a possible change.   Perhaps you can figure out a way to share time with your child on Halloween.  Maybe Dad can go to the school party and Mom can take the kids trick-or-treating.

Remember, you can’t change a parenting plan without the other parent’s agreement or the court’s consent.  Don’t unilaterally make a change to the plan without consulting with the other parent.

2.  Don’t put your children in the middle.

As with any parenting dispute, it is imperative not to put the child in the middle.  Make the decision as parents and do not force the child to take a side.  Don’t say, “don’t you want to spend Halloween with Mommy (or Daddy)?”  Asking the child means your child might spend Halloween concerned about which parent they chose to spend time with.

3.  Share Time.

If at all possible, try to figure out a way to share the holiday.  Long-distance between parents can make this impossible, but if it can be done, try and figure out a way.  Of course, both parents want to spend the holiday with the child. Just because parents are separated, does not mean that can’t be accomplished.

4.  Be Nice.

Whether or not you and the other parent are able to reach an agreement about Halloween, be nice!  Nothing will ruin your child’s Halloween like watching his/her parents fight.  Don’t use Halloween as an opportunity to tell your child about what a jerk their other parent is.

5.  Plan Ahead.

Make sure you have tackled a holiday issue before it hits you head on.  Don’t wait until October 29th to ask the other parent for time on a Halloween.  Planning ahead allows you to prepare your children for the upcoming holiday and to manage their expectations in advance.  Children need to know what to expect in the coming days, weeks, and even months.  By preparing them for Halloween in advance, you decrease the chances of a Halloween Eve meltdown when they realize they are spending the holiday in one place or another.

Tips on Navigating Your Child’s First School Year After Divorce or Separation

Whether your child is five of fifteen, going back to school after parents divorce can be awkward for all involved.  Who chaperons school trips?  Who takes care of science projects and book reports?  Who buys school supplies?  The questions go on and on.  Navigating school issues is just one of the many things divorce parents must work out.  Before we dive in, some good news:  the first year will be the most complicated, but it is (almost) all uphill from here!

Before reading any further, I suggest you review your Parenting Plan.  The “Decision Making,” “Residential Schedule,” and “Child Support” sections will be invaluable when determining how your child’s school schedule fits into your new life as a divorcee.   Depending on your parenting plan, you may find that you have the right and authority to make some decisions without involving your ex, or you may discover that the two of you will need to be in constant communication throughout the year.

In the Decision Making section of your parenting plan, you should find how educational decisions will be made.  In Montana, our courts generally prefer that the parties make educational decisions together.  Where your child will go to school, whether or not your child should be held back, how special education will be handled, and so on, are all issues that would likely be considered “educational decisions.”   If your parenting plan provides for joint decision-making, you and your ex must discuss and agree upon those major educational issues.   I know, I know…if you could agree upon everything, you probably wouldn’t be divorced, right??!?  Well, your parenting plan probably anticipates there could be disagreements.  See your mediation or dispute resolution section.  Normally, a parenting plan will require parties mediate disagreements.  If you can’t decide where junior will go to school or whether or not your daughter will skip the 5th grade, mediation is your next stop.

In your Residential Schedule, you may find some information about how school activities will be shared.    Including this detail is fairly rare, so if you don’t see a provision about school activities, don’t panic!  Generally, both parents are allowed to participate and attend the child’s school activities: plays, sporting events, field trips, etc.  In some families, mom and dad simply cannot interact with each other.  If that is your circumstance, I suggest working out a schedule where you and your ex share school activities.  If dad is more into science, maybe he can help with the science fair while mom volunteers for reading group.  For younger children who have field trips, taking turns chaperoning might be an option.  This sort of thing will require some work on both parent’s part – hopefully the parties can set differences aside to make junior’s first school year after the divorce a smooth one.

You may also find a section in your parenting plan about how to share your child’s extracurricular expenses.  Many parenting plans split the cost 50-50, though that isn’t always the case.  As such, be SURE to check your Parenting Plan.

Finally, a few things to remember this school year:

– While both parents have the right to receive the child’s school records, report cards, etc., they each have a responsibility to acquire that information.  I suggest each parent contact the school and the child’s teacher at the beginning of the year and request that all mailings go to both homes.  This way, both parents can stay on top of the school schedule.

– Both parents have the right to attend parent-teacher conferences (unless the court has specifically limited that right in your case).  If your relationship with your ex is extremely volatile, separate conferences can usually be accomplished.  Call your child’s teacher to find out.

– School issues are one of the most complex issues to deal with when co-parenting.  Figuring out how your new relationship will work takes time.  Always keep your child’s best interest in mind and keep the lines of communication as open as possible

Family Court Services in Kalispell, MT

If you are involved in a particularly complex parenting case in Flathead County or know someone who has, you may have heard of Family Court Services.  Much like a guardian ad litem (see my previous posts regarding GALs in divorce cases), Family Court Services is vested with the authority to investigate, report to the Court and make recommendations about parenting.   Though Family Court Services is often confused with the Department of Family Services, the two are entirely different.  While DFS might be involved in an abuse and neglect case, Family Court Services is strictly involved in cases regarding parenting disputes.

Think of it this way:  in a parenting case, there is only so much a judge can do.  A judge can’t visit your house, see what is in your cupboards or where your child sleeps.  Generally, a judge will never meet your child or see you or your ex-significant other interact with your child.  The law expects a Judge to make a decision about the parenting of a child they, frankly, know very little about.

Family Court Services (FCS) allows the Judge to be more informed about a case.  FCS can “investigate” a case by meeting with the parties, important witnesses (school teachers, grandparents, counselors, etc.), meeting the child in person, and visiting important places the child spends time (usually both parents’ homes).  After that investigation, FCS reports to the Judge, giving far more information to a Judge than he or she would normally see during a hearing.    This puts far more information at a judge’s fingertips, enabling he/she to make a more informed decision about parenting.

Though Family Court Services makes recommendations to the Court, a Judge has the power to accept or reject the recommendation.  At times, a Judge might decide the FCS recommendation is great and put it into place.  In other cases, a Judge may determine that the FCS report was only partially correct or not at all correct.

Family Court Services also has the authority to make interim recommendations pending further order of the court.  For example, if there are alcohol/drug issues, FCS may recommend a party participate in random drug or alcohol screening.  If there are abuse issues, FCS may recommend parenting time be supervised for a period of time.   Because Family Court Services derives its authority from the District Court, parties have the option to have recommendations of FCS review by the judge in their case.

As a practical matter, FCS is largely funded by tax dollars.  Unlike a private guardian ad litem (who is paid for by the parties), persons who become involved with FCS generally are not charged for FCS work.  At times, FCS will make recommendations that do require payment (i.e. drug/alcohol testing, supervised visits, psychological evaluations, etc).   As is the case with so many legal organizations, FCS funding seems to be drying up year after year.  As such, FCS can only handle so many cases and our local judges refer cases there as judiciously as possible.  FCS often gets only the most complex and litigious of parenting cases.

If you have additional questions about Family Court Services, contact an attorney to schedule an appointment.  You can reach my office by calling (406)752-6373.

Is Summer the best time to file your Montana Divorce?

Let’s be realistic.  There is no “good” time to file for divorce.  It is never an enjoyable experience and could certainly not be described as fun.   It seems, however, that there are times of the year that are more popular to file for divorce.   Late summer is one of those times.  I figured it was just a coincidence, but when I started to look into divorce rates at different times of the year, I found that summer is a very popular time for divorce filings throughout the country, even the world.   Check out this story from ABC News “End of Summer, Time for a Divorce?

Though there are not any official statistics, other attorneys are experiencing the same late summer rush.  There are several theories as to why the end up summer is such a busy time.  Some suggest that individuals want to wait until family vacations are over and the children are back in school to get the process started.  Others suggest that the heat of late summer causes mood changes that could encourage filing for divorce.  Some attorneys have a more philosophical approach, suggesting that the end of a season could encourage self-reflection, causing an individual to take the step to start anew.

Whatever the reason, late summer in the Flathead is no exception.  I see a dramatic increase in work in the mid-to-late summer months, causing me to cram my summer fun into the early part of the season.   What does this mean to someone who may be considering filing for divorce in Montana?   Truthfully, a busier divorce season probably won’t affect you too much.  If you are considering filing for divorce and are planning to wait until late summer, you may find it more difficult to get an appointment with an attorney.   You may also see a bit more of a delay in getting your initial divorce paperwork filed and you may end up with a later trial date.   Those delays could extend your divorce process by several weeks to a few months.   In the grand scheme of the divorce process, a couple of weeks may not be all that long.  However, if you are particularly anxious to get the ball rolling and are hoping to move things along quickly, it may benefit you to get the divorce process started, rather than wait for the late-summer rush.

Part 4: Advice from a Kalispell Divorce Attorney: What is the difference between a Contested Hearing and a Trial?

Over the last several weeks I have been blogging about the different kinds of hearings one can expect if they are involved in a Montana divorce (dissolution) or Montana parenting case.  For more information, see Part 1 and Part 2 and Part 3 of this series.  Today’s blog is about the differences between a contested hearing and a trial.

When most people think of a trial, they picture an episode of Law & Order: a packed courtroom, a dozen jurors, as many lawyers and so on.  While some real-life trials really do look that way, divorce trials do not.  In Montana, divorce and parenting cases are always done in front of a judge (a.k.a. “bench trial”) rather than in front of a jury (a.k.a. “jury trial”).  There are occasionally friends or family members in the courtroom observing, but by and large, the spacious courtroom seems pretty darn empty.  Of course, the Judge will be there, as will a court reporter, a clerk and probably a bailiff.

A divorce or parenting trial looks almost exactly like a contested hearing, just longer and often dealing with several issues rather than one or two.  Much like a contested hearing, each side will put on testimony, witnesses and will submit evidence to the court.  At the end of the trial, the Judge has the option to take the matter under advisement or to issue a decision right there (a.k.a. “ruling from the bench”).

One of the biggest differences between a trial and a contested hearing is that the trial is intended to bring the case to a close and give the parties some finality.  While a contested hearing may have been held to deal with interim parenting and the parties continued to fight about interim parenting throughout the case, the trial will result in a Final Parenting Plan.   There may also be squabbling about interim property issues, but the trial determines the Final Property Distribution of the parties.  “Final” can be a bit of a misnomer in divorce and parenting cases, as we all know that parenting plans are often up for review as years pass.

If someone is unhappy with the results of a contested hearing, they may be able to seek relief through the district court at trial or at another hearing.  If a party is unhappy with the result of a trial, there only option (with some VERY limited exceptions) is to appeal to the Supreme Court.  If you need information about appeals, see my previous blog series all about Appealing Montana Divorce or Parenting Cases.


Part 3: Advice from a Kalispell Divorce Attorney: What Happens at a Contested Hearing?

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 and Part 2 of this series.  Today’s blog post focuses on the CONTESTED HEARING.

As I have mentioned in my previous posts, this series is geared specifically towards hearings and/or trials in Kalispell (Flathead County District Court).  Each Judicial District is different and I encourage all litigants to learn the local rules of their Judicial District (which can be found on the Montana Courts website).  I also strongly encourage litigants to visit the courthouse and sit in on a proceeding, particularly a similar case and with the same judge that is assigned to your case.   You will learn far more by observing your judge and seeing how your local court runs than I can explain in a blog post!

The contested hearing is what people really think of when they imagine going to court.  Basically a “mini trial,” the contested hearing is often several hours long and allows both parties the opportunity to present witness, present evidence, and give testimony about the circumstances of their case.  In Montana family law cases, contested hearings are often seen for interim matters – i.e. matters that need to be determined at the outset of a case, long before a final trial takes place.  You might have a contested hearing on an interim parenting plan, interim child support, interim maintenance and so on.   Contested hearings are also common after the divorce or parenting case is finalized, when new issues arise.  For example, a parenting plan that needs to be modified or child support modifications generally result in contested hearings.

In Kalispell family law cases, it is not uncommon to have a contested hearing last as little as one hour or as long as four hours.  Some cases take less time, some take more.  Our Judicial District is incredibly busy and the Court simply does not have the time or resources to give every case 4+ hours.  I encourage unrepresented litigants to be prepared enough to present their side of the case in 30 minutes, keeping in mind that they may actually be allowed an hour or more.  And be aware just because you are given more time, does not mean you HAVE to use it.

If a contested hearing has been scheduled in your case, chances are it will be scheduled at 9:00 a.m.  WARNING:  CHECK THE ORDER SETTING CONTESTED HEARING YOU RECEIVED FROM THE COURT!  Do not rely on this blog post as a means of determining what time your hearing will take place.  If you are unsure what time your hearing is scheduled for, call the court and find out.  I repeat – do not rely on this post to determine what time your hearing will take place.

With that warning out of the way, often times in Kalispell District Court, contested hearings are scheduled for 9:00 a.m.   When you get to court, you will notice that several other cases will likely be scheduled for 9:00 a.m. as well.  Obviously, you cannot all present your cases to the judge at the same time.  So, your judge might call the cases one by one (which will require you to hang out at the courthouse until it is your turn), or your judge might schedule the hearings throughout the day after taking “roll,” and determining how much time each case will need.

The most important thing to understand about scheduling, is that you MUST be at the courthouse at the time your hearing is set, even though your case may not be heard until later in the day.  Also, if you are employed, plan to miss the entire day of work.  Even though the Order setting your hearing says 9:00 a.m., you may not go in front of the judge until late afternoon.

In the following days/weeks, watch for additional posts on the contested hearing.  I will be explaining what order things happen in (i.e. who goes first); what to bring with you to court; and what the court/judge expects from you.