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.
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.
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.
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.
- 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.
- 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.
Montana Divorce Lawyer Marybeth M. Sampsel