Child Custody

Part 2: Advice from a Kalispell Divorce Lawyer: What Happens at a Hearing/Trial for a Montana Divorce?

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.


Advice from a Kalispell Divorce Lawyer: What Happens at a Hearing/Trial for a Montana Divorce?

There is a great deal of valuable and reliable information available for divorce litigants regarding how 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.

Over the next several weeks I will blog about Montana divorce and parenting hearings and trials – how they work, what happens, and how to prepare.  Because the bulk of my practice is in Flathead County District Court in Kalispell, this series is most relevant to my local court.  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 Kalispell, 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.

Upcoming Divorce Titles

As a lawyer practicing family law in Kalispell and primarily handling divorce and parenting cases, I do my best to keep up to date on the literature available to my clients.  Going through the divorce process or a heated parenting battling can be extremely isolating and it seems clients often feel as though no one understands what they (or their kids) are going through.  Over the next several months, there are literally dozens of books being published about divorce, parenting, children and the like.  There are several titles I am most excited about and I would like to share them with my readers.

Joint Custody with a Jerk: Raising a Child with an Uncooperative Ex: A Hands-On, Practical Guide to Communicating with a Difficult Ex-Spouse

Author: Julie Ross and Judy Corcoran

Release Date: August 2, 2011

I have literally dozens of clients that have an incredibly difficult time dealing with their ex-spouse when it comes to parenting issues.  While I can give some practical advice and explain their legal options, so much of this communication issue is outside of my expertise.  In an ideal world, all my clients would have income sufficient to allow them to have a therapist on call.  But that’s not reality and most people are forced to figure out how to deal with this on their own.  Ms. Ross and Ms. Corcoran’s book (which is a revised edition of an already bestselling classic) is a great read for those that find themselves with an uncooperative ex and kids stuck in the middle.   With a revised edition being released later this summer, this is a great late-summer read for those hoping to change things before the school year begins again!

Divorce Stinks

Author: Paul M. Kramer

Release Date: July 16, 2011

While I find divorce titles aimed at adults incredibly helpful, children’s books about divorce and coping with divorce are truly my favorite.  Parents reading to their children can be incredibly beneficial and if parents are able to utilize books on the very delicate subject of divorce – all the better.   According to the description for “Divorce Stinks,” the book is aimed at children ages 4 to 8 and is intended to send the message that parents may divorce each other, but do not divorce their children.  Though I am not entirely sold on the name of the book, it looks like Mr. Kramer may have a winner.

The Ultimate Divorce Organizer

Author: Laura Campbell and Lilli Vasileff

Release Date: May 25, 2011

“The Ultimate Divorce Organizer” is a 160 page three-ring binder intended to help someone stay organized through the divorce process.  The book covers everything from the emotional aspects of the breakdown of a relationship to gathering and keeping your financial information organized.  In addition to the text, the book is literally a binder to stay organized during the process – folders and all.   The book is available on for $29.95, which seems like a deal given the amount of time you and your attorney will spend discussing organization of your financial information.  What time and money it would save if clients had already organized their information using this book!


Part 3: Appealing a Montana Divorce Case or Appealing a Montana Parenting 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.

Part 2: Appealing a Montana Divorce Case or Appealing a Montana Parenting Case

This week, I’ll be blogging about appealing decisions in Montana divorce cases or Montana parenting cases.  See Part 1 of this series here.

One of the most important things to understand about filing an appeal with the Montana Supreme Court is that timing is everything.  In civil cases (including divorce/parenting/child support/maintenance), a notice of appeal must be filed in the district court where the case originated within 30 days of the date of the entry of judgment or order being appealed.  If you blow that deadline, an appeal may be impossible.   In the event your case involves the State of Montana as a party or a political subdivision as a party, you may have a 60 day deadline.

When you begin reviewing the Montana Rules of Appellate Procedure, you will notice that there are many specific requirements for the pleadings.  Word limits, paper color, cover pages, font/size…it can get pretty confusing if you are not familiar with the rules or do not know where to look.  Luckily, the Montana Courts website includes an Appellate Filing Guide for guidance.

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

Want to File for a Montana Divorce Without an Attorney? Visit!

This article is part three of a series specifically aimed at those Montanans who are unable to afford an attorney for their Montana Divorce or Montana Child Custody/Parenting case.  Read the other parts in the series here and here.

Today’s topic:  Much like the State Law Library of Montana Forms Library, has a large forms website, which includes forms and information for Montana Divorce and Montana Child Custody/Parenting cases.  A great deal of the information available on is created by the Montana Legal Services Association, which provides legal assistance to low income Montanans.   Much like the Forms Library, the information available on is entirely FREE and does not require that you financially qualify.

If you plan to use either forms library ( or the State Law Library Forms Library), I suggest using them both in conjunction with one another.  Review both sets of documents and both sets of instructions.

Want to File for a Montana Divorce Without an Attorney? Use the Montana Courts Website!

As I mentioned in my previous post (read it here), I will be reminding my readers about the variety of FREE legal resources available for unrepresented litigants involved in a Montana Divorce or Montana Parenting/Child Custody case.

This article is dedicated to a the Forms Library on the Montana Courts website.  The forms library is a service provided by the State Law Library of Montana.  Aside from forms for Montana Divorces or Montana Child Custody cases, the State Law Library Forms Library includes forms for a wide variety of legal topics:  civil actions, estate planning, evictions, small claims, etc.

In addition to fill-in-the-blank forms, the Law Library provides practical information about how to file for divorce – how many copies of documents to make, where to file them, etc.   Because they are drafted by the folks at the State Law Library (and not some fly-by-night internet scam), you can be sure they are up to date and that they will be accepted by all Montana District Courts as forms appropriate for filing.

Best of all, anyone can access the State Law Library Forms Library.  You do not have to financially qualify to use this fantastic service.

Now that I have waxed poetic about the amazing resource the Forms Library provides, I must give you a warning.  Remember that the information found at the Forms Library is NOT legal advice.  The forms are fantastic, but are truly designed for fairly basic, uncontested cases.  If your case is complex, you really should see an attorney to ensure that things are being done correctly and legally.

Want to File for a Montana Divorce Without an Attorney?

As I have mentioned before on this blog, it is fantastic to be able to hire an attorney to represent you throughout your Montana Divorce or Montana Parenting/Child Custody case.  For a significant number of Montanans, this is simply not a financial option.   Many Montanans cannot afford to pay an attorney to assist them from start to finish.   There are often ways to utilize an attorney while keeping your costs down.  I have blogged about the issue before – see a recent post here.

The purpose of this series of articles, however, is to remind my readers about the variety of FREE services available to help them through their Montana Divorce or Montana Parenting/Child Support case as an unrepresented litigant.

Over the next few days, I will discuss the services that are available for low income Montanans and the way they can be utilized.  I will also discuss how you may be able to use an attorney to maximize results.