Child Custody

Online Montana Divorce Forms – BEWARE!

Even though I am a Montana attorney, I certainly do not in a fantasy world where everyone can afford to hire an attorney to assist them with their divorce.  Unfortunately, hiring an attorney can be incredibly expensive and not everyone has the means to hire one.  Lately, however, I have noticed a troubling influx of do-it-yourself divorce forms online promising things like a start-to-finish divorce for $200.00.   Before you drop several hundred dollars on online forms, I urge you to keep a few things in mind.

First, you will recall from previous posts on this blog that there are several options for those that plan to handle their case on their own.  See Divorce Options for information and links to divorce forms created by Montana attorneys specifically created for use by Pro Se litigants (a person without an attorney).  These forms are featured on the State of Montana’s government website, so I find that they are reliable and based on Montana law.

Next, if you are looking into using online forms from a do-it-yourself divorce website, determine whether or not your case is “contested.”  I have looked through numerous on-line pay sites and it is clear that most of those websites are designed for people who have uncontested cases.  Uncontested means that both parties involved in the divorce are in agreement about ALL issues in the case: property division, parenting, child support, etc.  If your case is contested, a few fill-in forms will probably not cut it.

Rather than pay $300 to a random online site, I suggest you first look into divorce resources in your city.  For example, Kalispell has a fantastic Self-Help Law Center at the county courthouse.  Second, you may want to take your few hundred dollars and set up an appointment with a local family law attorney, so you can be sure you are getting information specific to Montana law and your own circumstances.

When One Parent Refuses to Follow the Parenting Plan

One of the most frustrating situations I see clients dealing with is the situation when one parent refuses to follow the parenting plan. Often this occurs with small things. The other parents cancels scheduled visits at the last minute, or habitually returns the children late. It may come in the form of repeated requests to meet somewhere more convenient for the other spouse. But whatever form it takes, it breeds frustration and anger.

A violation of the parenting plan is punishable by contempt of court and can be a criminal offense. This is a very severe punishment and means that the offending parent can be arrested and fined up to $500 or imprisonment in the county jail. As you can imagine, given the severity of what I just described, taking such action is a major step. But it does provide a powerful stick to use against the other parent.

If your child’s other parent has kept him for longer than is allowed by the plan, you can ask the court for an order holding that parent in contempt of court. With that order, it should be possible to get the police involved who can help return your child to you.

Whenever a client tells me of situations like this, I always recommend that they start keeping a diary of all such events. Recording what the parent did, and in what way they violated the plan. If you do end up asking the court for a contempt order, being able to show that this behavior is a pattern and not just a single incident can go a long way to returning your children to you. As always, if you have any questions about your specific situation, please call me today and schedule an appointment so we can discuss your difficulties.

Paternity in Montana

Montana law presumes that a child born during the marriage is the biological child of the husband. Sometimes this is not the case, but as a general rule it works fairly well. If you believe someone else is the father, you can establish paternity by a court or administrative judgment, decree, or order.

Likewise, if the parents of a child are not married, and one of the parents questions or denies paternity – you will need to bring an action to establish paternity. Establishing paternity can be very important for child support and (when questioned or challenged) an important fact to establish. And, aside from child support reasons, simply knowing the true biological father of a child can bring certainty and security that is worth the effort.

If you are unsure of a child’s father, or interested in pursuing an action for paternity, please call me today to schedule an appointment.

Dispute Resolution

Most parenting plans include a dispute resolution provision. This means that if there is a disagreement about the plan, the parties need to engage in the dispute resolution process before proceeding to Court. Even if your parenting plan does not have this, in Montana the judge can order you to try dispute resolution before returning to Court. In most family law disputes, you will need to at least try dispute resolution before a Judge will hear your case.

Dispute resolution can take many different forms. You can ask a friend, pastor, or any agreed-upon third party to mediate. You may try mediation or a settlement conference, or something even more informal. However you do it, remember the that purpose of dispute resolution is so that you and your child’s other parent can solve whatever problem exists on your own, without brining in a Judge to make major life decisions for your family.

A final note: Mediation is not appropriate for cases where domestic abuse is involved. If there has been physical abuse, or the threat of physical abuse by one parent against the other, the requirement of mediation is waived and the dispute should be heard by a judge. This is a safety issue, and a way to protect victims of abuse from being bullied into accepting terms they would not otherwise agree to.

If you are unsure whether your parenting plan contains a dispute resolution clause, or would like to discuss dispute resolution with a Montana divorce attorney, please call me today.

Sample Montana Parenting Plan: Misc. Provisions

In keeping with the theme of a parenting plan in Montana being as comprehensive as possible, we have a number of provisions that don’t fit neatly into a category. Today’s post includes two of those sections from the sample parenting plan I’ve been posting on here.

  1. Designation of Custodian: Neither party is at this time designated the “custodian” of the child. Should any state or federal law or regulation require that a parent be designated as “custodian,” the parties agree that such a determination shall be made premised upon the best interests of the child at the time such designation becomes necessary, but both parties acknowledge and agree that such designation shall in no way affect either parent’s rights or responsibilities under this Parenting Plan or any Court Order or Decree approving the same.
  2. Option to Care for Child: In the event we cannot personally care for our child during the times allocated to each of us other than on an occasional basis, we shall contact the other parent to allow that parent first chance to be with our child before seeking a friend, baby-sitter, significant other, relative, or other care provider to watch our child in our absence.

Although many people still refer to it as custody, Montana is very adamant about referring to the process as parenting. For this reason, under state law no single parent has “custody” under ordinary circumstances.  Instead they have parenting time in varying quantities. However, the federal government and other states have not yet seen fit to change their laws to fit ours – meaning that the custodial parent can sometimes have important meaning. This provision states that while it may be necessary to refer to one parent as such, it in no way changes the actual relationship or the arrangement set forth in the parenting plan.

The second section is about practically planning for the future. As much as you want to spend time with your children, there will come an occasion when you cannot be present during your scheduled parenting time (the same applies to the other parent).  This section states that when that happens, the other parent has the option of caring for the child in your absence. This is based on the common-sense belief that a child is better off with his parent than with a baby-sitter. Unfortunately, there are situations where this is not the case – and in those cases we would probably not want to include this provision. But the divorce this parenting plan is based off of was fortunate enough to have two good parents (who unfortunately couldn’t get along with one another).

A Montana parenting plan is a flexible document that can say many many different things. Remember, just because I solved a problem in a certain way in this plan does not mean that things will always play out that way. There are as many different solutions as there are people trying to arrange parenting for their children. My time preparing parenting plans for the citizens of Kalispell, Montana has taught me that there are many paths to the top of the mountain.

Sample Montana Parenting Plan: Residential Changes

As we’ve discussed before, one of the primary goals of a Montana parenting plan is to craft an agreement that will grow along with the child. The process is lengthy, intensive, and expensive – ideally you will only need to do it once. One of the ways we can ensure that you do not have to reinvent the wheel each time is to include provisions that anticipate future events.

Although not something that always happens, often one parent will move from one location to another. They may just move across town, or they may cross Montana and move from Kalispell to Billings. For that reason, my parenting plans typically include the following language:

Residential Changes Significantly Affecting the Child: If either parent’s change of residence will significantly affect the child’s contact with the other parent, the parties shall follow the following procedure:

  1. The moving parent will:
    • Prepare a written notice of his or her intention to change residences;
    • Prepare a proposed revised residential schedule;
    • Serve the non-moving parent, personally or by certified mail not less than 30 days before the proposed change of residence, with the written notice of intention to change residences and with the proposed revised residential schedule; and
    • File proof of service upon the non-moving parent with the court.
  2. If the non-moving parent fails to respond to the written notice of intention to change residences and the proposed revised residential schedule, then the non-moving parent will be deemed to have accepted the proposed revised residential schedule. If the non-moving parent objects to the proposed revised residential schedule, the non-moving parent shall:
    • Prepare an alternative proposed revised residential schedule or state why the existing residential schedule should continue;
    • Serve the moving parent, personally or by certified mail within 30 days of receipt of the notice and proposed revised schedule from the moving party, with the alternative proposed change of residence or statement why the existing residential schedule should continue; and
    • File proof of service upon the moving parent with the court.
  3. If the parties cannot agree upon a revised residential schedule for the child, they shall promptly make arrangements to mediate their differences as provided below.
  4. If the parties cannot agree upon a revised residential schedule for the child after mediation, they may file appropriate motions with the court.

This portion of the parenting plan creates a series of steps that must be followed before one parent may make a residential change that effects the child. It requires that the moving parent notify the other parent in writing at least 30 days before the move. The moving parent must also provide a new residential schedule for the child. Although we have not seen one yet, the residential schedule determines where the child is to be and when. I will provide an example of a residential schedule in a later article.

The non-moving parent may then object to the move or the proposed changes in the residential schedule by writing back to the moving parent. It should be noted that this is done outside of court, saving the parties the expense of having to litigate every dispute immediately. If the non-moving parent does not respond in writing, then we assume that he or she accepts the changes. If there is a dispute, the parties may try to resolve it themselves, but need to begin participating in the mediation process quickly. Again, this is an effort to help the parties avoid going back to court. If mediation fails, then the parties will need to go back to court and incur that substantial expense.

Sample Montana Parenting Plan: Parental Responsibilities

While a parenting plan describes how a child will be cared for by two separated parents, it really is a limitation on how the parents may behave and what they may do. In addition to limits on when the parent may see his child, or when he must deliver the child to the other parent, there are also more general restrictions. Again, this all comes down to the best interests of the child (the standard we’ve seen again and again in the parenting context).

The following are sections from an actual parenting plan prepared by my office outlining some general responsibilities of each parent and discussing how communication between the parents will take place in the future. I will note that the communication section in this plan is fairly vague. I usually recommend that my clients flesh this out more thoroughly. In this case, my client decided to ignore my advice and I know it has been the cause of some problems between them.

PARENTAL RESPONSIBILITIES

  1. Neither parent shall use illicit drugs or misuse prescription drugs while the child is in their care. Both parents shall refrain from the use of cigarettes or any tobacco products, or excessive alcohol during their time of residential care of the child and both parents shall do their best to prevent the child from being exposed to or around illicit drugs, cigarettes or any tobacco products, or excessive alcohol consumption, even if being used by other individuals.
  2. Both parents shall do their best to prevent the child from being exposed to profanity or sexually explicit material. The parents shall screen television shows, music, movies and video games to ensure they are age-appropriate for the child.
  3. Both parents shall provide their own supplies and necessities for the child when the child is in their home (i.e., clothes, food, et cetera).
  4. Both parents shall use appropriate child safety restraints when transporting the child, and will make the appropriate child safety restraints available to any third party they ask to transport their child.
  5. Both parents shall ensure the child always utilizes appropriate safety gear for any activity requiring such (e.g., bicycle helmet, life jacket).

COMMUNICATION BETWEEN PARENTS

  1. Each parent shall promote a healthy, beneficial relationship between the child and the other parent, and will not demean or speak or act out negatively in any manner that would damage the natural flow of love and care between either parent and the child. The parents shall communicate to implement the Parenting Plan and shall communicate only in positive ways. The parents shall not make and shall not allow others to make derogatory remarks about the other parent in the child’s presence.
  2. Each parent shall share important information with the other parent about the child’s physical and mental health, education, discipline and all aspects of the child’s upbringing.
  3. At least 24 hours notice of a schedule change shall be given to the other parent. The parent requesting the change shall be responsible for any additional child care that results from the change.

Again, this is only one section of a parenting plan. Hopefully this gives you some idea of the considerations that go into drafting such an agreement, but every situation is unique and requires a lot of time and thought to make sure all the important topics are covered.

Sample Montana Parenting Plan: Introduction

This is the first of a series of articles where I will show you parts of an actual parenting plan prepared by my office. I’ll also shed some light on the considerations that go into drafting each section to give you an idea of a few things that are important to keep in mind when approaching this topic. Because it is just not practical (or very beneficial) to do so, I will not be posting the entire parenting plan. Remember, these are just pieces of the picture and not a substitute for legal advice. If you are creating a parenting plan on your own, Montana Legal Services has created a series of forms to help. I recommend starting with the Questionnaire link at the top of the page.

The following is actual language (with the names changed) from a parenting plan my office created. These are some of the general provisions and are relatively common across all parenting plans. In fact, as we’ll discuss in a moment, this information is generally required in all plans.

GENERAL PROVISIONS

Identification of Child. The parties have one child, as identified below:

NAME                    BIRTHDATE
Only Child             See Confidential Disclosure Statement

Residency of Parents. The legal residences of the parties are:
Homer Simpson                                     Marge Simpson
P.O. Box 123                                           P.O. Box 999
Springfield, Montana 59911               Springfield, Montana 59911
406-555-1234                                         406-555-9876

Objectives of Parenting Plan. This plan is intended to:

  1. Protect the child’s best interests;
  2. Provide for the physical care of the child;
  3. Maintain the child’s emotional stability and minimize the child’s exposure to parental conflict;
  4. Provide for the child’s changing needs as the child grows and matures, in a way that minimizes the need for future amendment to this Parenting Plan;
  5. Set forth the authority and responsibilities of each parent with respect to the child during the pendency of this action; and
  6. Help the parties avoid expensive future court battles over the child.

Obviously, I have not represented the fictional Simpsons in a divorce. But, no matter who the client is, most of these provisions would be identical. Obviously, the identifying information changes from person to person. The name and made-up address for Homer and Marge would be changed to reflect that of yourself and your spouse. Also, notice that the name of the child is not mentioned, it says “only child.” This is because Montana law requires that we protect the identity of minor children involved in a divorce. Instead of identifying the child by name in this filing, which is public record, a separate document is filed which includes the child’s name and social security number, and other personal information. That document is sealed by the court protecting it from prying eyes and identity thieves.

The first item under Objectives of Parenting Plan should look familiar if you have been reading my past entries. The best interests of the child is paramount in all divorce proceedings involving children. So in a parenting plan, we put it front and center to make it clear that this plan attempts to provide for the child’s best interests, and not necessarily the parent’s. Items two and three share this same idea, and I don’t believe require any further explanation.

Items four, five, and six all share the common theme of demonstrating that the plan contemplates the future and not just the immediate needs of the child. The process of creating a Montana parenting plan between two divorcing spouses (or two spouses who were never married) is time consuming and expensive. Ideally, you should only have to do it once. These provisions indicate to the court that this plan is not a band-aid, but a (hopefully) permanent solution that will allow the parents to work together in raising their child. Obviously, these provisions do little or nothing on their own, but they do signify to the court what to look for in the rest of the plan.

As we examine other parts of this sample Montana parenting plan, you will see how these basic ideas are specifically addressed. As a divorce attorney practicing in Kalispell, Montana, I have a great deal of experience drafting parenting plans, and would be happy to share my expertise with you. Please call anytime to set up an appointment.

Parenting Plans in Montana – more than just a Residential Schedule

When a divorcing couple first thinks of a parenting plan or visitation schedule, they often think only about where their children will spend their time, what days of the week will be dad’s or mom’s, and which parent will have more time with the children.  While the Residential Schedule is certainly a huge part of a Parenting Plan (and often the most contentious ), Parenting Plans are designed to deal with a number of other issues that arise between divorced parents.  

The Montana law regarding final parenting plans allows parents to divvy up or share parenting functions.   Parenting functions are defined in the statue as “those aspects of the parent-child relationship in which the parent makes decisions and performs functions necessary for the care and growth of the child.”  Parenting functions can include anything from providing daily care for a child to major decision making.   Some of the functions that should be addressed in a parenting plan are set forth in the relevant part of the Montana Code Annotated: 

M.C.A. 40-4-234 (2) Based on the best interest of the child, a final parenting plan may include, at a minimum, provisions for:
     (a) designation of a parent as custodian of the child, solely for the purposes of all other state and federal statutes that require a designation or determination of custody, but the designation may not affect either parent’s rights and responsibilities under the parenting plan;
     (b) designation of the legal residence of both parents and the child, except as provided in 40-4-217;
     (c) a residential schedule specifying the periods of time during which the child will reside with each parent, including provisions for holidays, birthdays of family members, vacations, and other special occasions;
     (d) finances to provide for the child’s needs;
     (e) any other factors affecting the physical and emotional health and well-being of the child;
     (f) periodic review of the parenting plan when requested by either parent or the child or when circumstances arise that are foreseen by the parents as triggering a need for review, such as attainment by the child of a certain age or if a change in the child’s residence is necessitated;
     (g) sanctions that will apply if a parent fails to follow the terms of the parenting plan, including contempt of court;
     (h) allocation of parental decision making authority regarding the child’s:
     (i) education;
     (ii) spiritual development; and
     (iii) health care and physical growth;
     (i) the method by which future disputes concerning the child will be resolved between the parents, other than court action; and
     (j) the unique circumstances of the child or the family situation that the parents agree will facilitate a meaningful, ongoing relationship between the child and parents. 

While this section of the statute sets forth the minimum requirements of a parenting plan, some parties end up negotiating and agreeing upon provisions that are even more specific.  For example, I had a client that included a provision regarding when their child could receive a haircut.  I have also had numerous parents include a provision about where their children will attend school long-term.  Religious upbrining is also a popular issue to spell out specifically in the parenting plan.    

Clearly, parenting plans are not just for residential schedules.  The goal is to come up with a plan that will work for the family and, as always, addresses the best interest of the minor children.