Child Custody

Kalispell Divorce and Parenting Resources – Family Concepts

For those going through a divorce with children or parenting action in Flathead County or the surrounding areas (Eureka, Polson, Hamilton, Libby, Helena and Thompson Falls), Family Concepts can be a wonderful resource for you and your chidlren.

Depending on your location, Family Concepts provides Supervised Visitation services, Parenting Education Classes, Drug Testing and Home Visitation/Education for families.

For those involved in Kalispell divorces or parenting cases, Family Concepts provides a Supervised Visitation facility to ensure parents and children can have healthy, safe contact.  The Kalispell Family Concepts office also provides Parenting Education Classes.

Learn more about Family Concepts by visiting their website at www. or by visiting the Kalispell office at 14 River Road, Kalispell, MT.

Upcoming Parenting Classes at The Nurturing Center for Kalispell Divorce/Parenting

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.

Kalispell Divorce Resources – Dr. Angela Jez

On March 26, 2011, I had the pleasure of presenting at a seminar for those going through the divorce process.  The seminar, entitled “Marriage in Crisis: What You Need to Know When the Bottom Drops Out,” featured several local attorneys, Judge David Ortley, mediator/attorney Brian Muldoon and Dr. Angela Jez, Psych D. from Integrative Clinical Service, P.C. in Kalispell, MT.

I was impressed by the information Dr. Jez provided at the seminar, as well as her experience in dealing with children and families in the divorce process.  Dr. Jez explained that children find their way to her office in a number of ways.  Often times, one or both of the child’s parents will find it necessary for their child to see a psychologist during the divorce process.  There are also times that Dr. Jez is appointed by the court in high-conflict parenting cases.  And, at times, Dr. Jez becomes involved through referral from Family Court Services.

In the event you have children and feel it would be appropriate for them to speak with a psychologist/therapist/counselor during your divorce conflict, consider contacting Dr. Jez.

Montana Family Law Legislative Bill Update 2011 – Marriage Counseling

Rep. Tom McBillvray has sponsored a bill that could affect many Montanans that file for dissolution of their marriage in this state.  House Bill 438 was introduced on February 7, 2011.  If passed, the bill would require those with minor children to attend counseling before the district court could make a finding that the marriage is “irretrievably broken.”

The bill goes on to specify what type of counseling would be required, the topics that must be covered, the amount of counseling that must take place, and the type of counselor that must be utilized.

The most problematic aspect of the bill is the proposed subsection 5(b), which states that the counseling requirements do not have to be met “if there has been a claim of physical abuse of one of the parties by the other.  Corroboration is not required for a claim of physical abuse….”  Appropriately, the bill makes room for those that have been physically abused, as I think most would agree that forcing parties to undergo counseling when there has been physical violence is not appropriate.  My concern is that more and more claims of physical abuse will be made, just so that litigants are able to avoid the counseling requirement.  Since corroboration of the claim is not necessary, a litigant would understand that they do not need to have prove that physical abuse has occurred.

Another concern is how the court handles this statute if a party defaults.  If a party fails to respond to the petition for dissolution in an appropriate amount of time, the court may enter that party’s default and grant the dissolution according the petition.  If counseling is automatically required, how does the court grant the dissolution?  And more importantly, if a person does not even respond to a petition for dissolution, is it reasonable to think they will willing go to counseling?   I doubt it.

While I am not particularly a fan of the entire proposal, a better option may be to include a provision that allows the District Court to waive the counseling requirement if appropriate.  It would prevent litigants from being punished for their spouse’s refusal to participate.

Follow this bill here.

What to do if you have been defaulted in a Montana divorce or parenting case

If you have ever been served with legal paperwork, you have likely seen and, hopefully, read a Summons.  Though drafted by opposing counsel or the opposing party, a Summons is actually issued by the Clerk of Court.  The Summons announces the deadline by which to respond to the paperwork you were served.  In a divorce/dissolution or parenting plan case, you are allowed twenty days from the date of service to respond to the Petition.  If you fail to respond in twenty days, the opposing party may request the court enter your default.

If your default has been taken and you wish to continue with the case, you will be unable to do so until you first have your default set aside.  This means, you must prove to the court that the default was incorrectly entered against you or you have some reason that you were unable to respond in a timely manner.

Under the Montana Rules of Civil Procedure, the court may set aside a default for good cause.  In order to establish good cause, a defaulting party must show: (1) the defaulting party proceeded diligently; (2) the defaulting party’s neglect was excusable;  (3) the defaulting party has a meritorious defense claim; and (4) the judgment, if permitted to stand, will affect the defaulting party injuriously.  See Mountain Sports, Inc. v. Gore, 85 P. 3d 1286, 320 Mont. 196 (2004).

If successful in having the default set aside, a divorce or parenting case then proceeds normally, as if the default had never happened.  Setting aside a default can be complicated and I am not aware of readily available forms for pro se litigants to use in such a circumstance.  If you have been defaulted in a case, contact an attorney as soon as possible.  If you cannot afford an attorney, contact Montana Legal Services or your self-help law center.

Planning to Move After a Montana Divorce or Parenting Case

If you have minor children and had a Montana divorce or parenting plan case, you must be aware of the notice requirements under Montana law before you make a residential move that significantly affects your parenting plan.

Under M.C.A. 40-4-217, you MUST provide written notice to the other parent if you intend to make a residential change that will significantly affect the other parent.  Along with the written notice of your intent to move, you must supply the other parent with a proposed revised parenting plan, laying out how the residential schedule should work after your move.  Notice must be provided to the other parent no less than 30 days before you plan to move.  The notice must be provided either by certified mail or by personal service (i.e. served by a process server or sheriff’s officer).  Proof of services must be filed with the court.  Even if it has been many months or years since your dissolution or parenting case was completed, usually you may file the notice under the same cause number.

Once written notice and a proposed amended parenting plan has been supplied to the other parent, you must allow the other parent 30 days to respond to you.  If the other parent fails to respond in 30 days, it is deemed the parent accepted your proposed revised parenting plan.

If the other parent does not agree to your proposed revised parenting plan, the two of you would then need to follow the law for Amendment of a Montana Parenting Plan.

Modifying an Existing Montana Parenting Plan

Though Final Parenting Plans are designed to carry the parties to a dissolution or parenting action through the foreseeable future, there often comes a time when parents need to make changes to their Final Parenting Plan.  A parent may move, remarry, or obtain a new job.  Or as a child ages, their needs may change that make an old parenting plan impractical.  Occasionally, an emergency may arise with a child or parent that requires an immediate change to the parenting plan.

In order to modify a parenting plan, a parent must follow Montana’s statute governing the Amendment of Parenting Plans – M.C.A. 40-4-219.  Under Montana law, a parenting plan can be modified anytime both parents agree to the amendment.  If one parent does not agree, the other must prove that there has been a change in circumstances that makes an amendment necessary to serve the best interest of the child.  The change in circumstances must be based on facts that were unknown to the court when the prior plan was ordered or new facts that have arisen since the prior plan was put into place.

Many parenting plans include a “built in” review date.  In the event a parenting plan has a built in review date, a party may not need to show that a change in circumstance has occurred, provided the review date has passed.

Often parenting plans include a Dispute Resolution section which requires the parents attempt mediation before either of them can ask the court for an amendment of their parenting plan.   If that is the case, you may obtain names of mediators in your area from the Montana Mediation Association on their website.

If a modification of your parenting plan is appropriate, the court will consider the factors in Montana’s Best Interest of the Child statute.  Read the full text of the Best Interest of the Child statute.  The court may also consider the following:

– whether the parents agree to the amendment;

– whether the child has been integrated into the family of the petition with consent of the parents;

– whether the child is 14 years of age or older and desires the amendment;

– whether one parent has refused contact between the child and other parent or denied/frustrated contact between the child and the other parent; and

– whether a parent has or intends to change residences in a manner that will significantly affect the child’s contact with the other parent.

If you wish to modify your parenting plan, the first is to review your existing parenting plan for a review date and/or Dispute Resolution language.  If you do not have a copy of your parenting plan, you may obtain one for the clerk of court in the county your parenting plan was filed in.  Once you have a copy of your parenting plan, I encourage you to speak with an attorney about the modification process.

Grandparent Visitation Rights in Montana

In many families, parents and grandparents get along well and share time with minor children without issue.  Because that is not always the case, occasionally a grandparent will find themselves in the unenviable situation of asking a court to grant them time with their grandchild.
In Montana, third party contact is generally within a parent’s discretion.  Provided a parent is fit, the law generally allows a parent to determine whether or not their child has contact with grandparents, other relatives, etc.
Before a Montana court may grant a grandparent’s petition for grandparent-grandchild contact over the objection of a parent, the court must first determine if the parent is a fit parent.  When determining if a parent is fit, the court will examine whether or not a parent adequately cares for the child.

If the court determines the parent is unfit, the court then must make a determination if grandparent-grandchild contact would be in the best interest of the minor child.

If the court determines the parent is fit, a grandparent must show both: (1) grandparent-grandchild contact is in the child’s best interest; and (2) the presumption in favor of the parent’s wishes has been rebutted.

Occasionally,  parents and grandparents will enter into a specific visitation schedule.  Much like a parenting plan, a grandparent visitation schedule outlines specific dates and times the child is to spend with the grandparent.   In the event parents and grandparents make such an agreement, a drawn-out court process may be avoided.

Amending or Modifying a Montana Parenting Plan

Though the goal of a Final Parenting Plan is to provide for the care and support of a minor child for the foreseeable future, there often comes a time when it is necessary to revisit your parenting plan.  As time passes, circumstances sometimes change drastically in a way that your existing parenting plan is no longer in your child’s best interest.
Recognizing this issue, Montana law allows a parenting plan to be amended or modified when a substantial change in circumstances occurs such that a modified parenting plan is necessary to serve the child’s best interest.   In order to determine if a change in circumstances has occurred, the court will look at the facts of the case and determine if facts have arisen since the prior plan was put in place or facts exist that were unknown at the time the plan was put in place.
Many stipulated parenting plans (plans that were put in place upon agreement of the parties) include a provision that requires the dispute resolution process before either party can motion the court for a new parenting plan.  This means that parties must first attempt to mediate the issues and try to come up with an amended parenting plan without involving the court.
Additionally, many stipulated parenting plans include a built-in review date.  For example, your plan might say that the parenting plan can be reviewed “two years from the date of the agreement.”  If that is the case, a showing of substantial change of circumstances may not be necessary, provided that amount of time has passed.
In the event your parenting plan does not have a built-in review date and you have exhausted the dispute resolution provision of your plan, you may look to the court to amend or modify your parenting plan.  At that time, the party seeking to amend the plan must file the appropriate pleadings with the court.   If the court finds from your pleadings that amendment may be necessary, the court will likely schedule a hearing regarding your new parenting plan.
It is important to understand that parenting plan modifications are not simply an opportunity for a parent who did not get the the plan they wanted in the first place to re-fight their case.   Without some new and unforeseen facts, an amendment of your plan may not be appropriate.

Step-Child Adoption in Montana

According to the U.S. Census Bureau, step-parent/step-child adoption is the most common type of adoption in the United States.   Step-child adoption procedures can vary greatly from state to state, but Montana law allows a person to adopt their step-child if:

(1) The person is married to one of the legal parents of the child;

(2) The child has lived with the person and his/her spouse during the past 60 days;

(3) If the child is over the age of 12, the child states in writing that he or she would like to be adopted; and

(4) The other parent of the child agrees in writing to give up his or her parenting rights, or that parent’s rights have been terminated.

Depending on your circumstances, there may be additional considerations.  For example, if your spouse’s child has been living with you for at least 12 months and your spouse dies or becomes mentally incompetent, you may also be able to adopt your step-child.

As long as the child’s other parent is agreeable and willing to sign a consent to your adoption and relinquishment, the step-child adoption process can be straightforward and fairly quick.  If the other parent is not agreeable, step-parent adoptions can become incredibly complicated and can require termination of the other parent’s rights before the adoption can be completed.