Please read my general disclaimer. The following article is premised solely upon Montana law. If you do not live in Montana, some of the material contained herein may not be applicable in your jurisdiction. Please consult an attorney licensed in your state for personal legal advice.
I can predict with regularity that the phone at my law office will begin to ring off the hook about two weeks prior to: 1) the start of the school year, 2) the end of the school year and 3) Christmas vacation. Inevitably, it is because an existing parenting plan has a transition for the child that is, for some reason, not working. Unfortunately, unless law enforcement or ambulances are involved, a call at the last minute generally will not get a parenting plan changed until long after the immediate crisis has passed, so this is my plea to parents: PLAN AHEAD.
There is an adage, “justice delayed is justice denied.”1 Unfortunately for people with recurring family law matters, and especially parenting plans that need to be modified post-decree, our modern world has crowded court dockets that prioritize crimes and other calamities. Therefore, anything but the most urgent emergencies are, in fact, delayed. So, to avoid justice denied, advance planning of legal action in a family law case is a good idea because it can take far longer than you think to get into court.
The only way to quickly change a parenting plan in Montana is in “an emergency situation … in the child’s present environment” that, as the law states, “endangers the child’s physical, mental, or emotional health and an immediate change in the parenting plan is necessary to protect the child.” MCA § 40-4-220 (2)(a)(ii).
But, many times, when a client wants me to file an emergency, ex parte motion to change a parenting plan, the judge says it’s not a crisis. Other times an order of protection is granted, only to be dissolved at the show cause hearing that the court sets about 21 days out. Even when the judge grants an emergency motion, there is still a need for final resolution. One way or the other, the parenting plan at the root of the crisis still needs to be changed.
So, generally, most family crises between divorced or separated parents are not going to meet the legal definition of “an emergency situation” and will take considerable time to resolve. An emergency hearing can be scheduled, but only if the judge considers the situation an emergency in the first place. Getting an ordinary short, half-day merits hearing on an ordinary contested motion to amend a parenting plan is, at a minimum, months out. A full-day hearing will take even longer to get to court. And we are lucky in my local venue, we can get our clients in front of a judge sooner than in many other places. But if you need to have a psychological evaluation performed, or a parenting evaluation, or obtain expert witness testimony, more months may pass.
In other words, if a call in May is about fixing the summer break schedule, there may not be a hearing or a decision until the current summer break is over—the parenting plan won’t be fixed until next summer! Similarly, if Christmas break isn’t working out, the time to call your friendly lawyer is in January; don’t wait until after Thanksgiving! If there is going to be a problem with where the child goes to school for the next academic year, try to anticipate this in October; it could take the whole academic year to get to a contested merits hearing.
A parenting plan can break down due to ongoing issues between the parents or the children. Other times a poorly-designed plan was unworkable in the first place, and sometimes changed circumstances have arisen. These are often legitimate concerns, but not emergency ones. Post-divorce or post-breakup problems need to be anticipated, as best as is humanly possible, and when possible, a mediated solution developed without going to court at all.
Frankly, the best form of legal planning is to communicate with your child’s other parent like a mature, rational adult. That said, many relationships end in part because people weren’t necessarily mature or rational, so this advice isn’t always helpful. But even so, try to address a problem situation before it becomes a crisis. Also, if you think that going in front of the judge will solve everything, remember: just because you initiate legal action does not mean you are going to win!
If parents can’t agree on changes, mediate first. Most parenting plans in Montana now have a provision where the parents are required to seek mediation before filing a legal action. (There are exceptions.2) And it’s a good idea; you may resolve the case faster and for less money than via an emergency order or a contested hearing.
Sometimes one party or the other views mediation as a waste of time, but if the parenting plan has a mandate, it needs to be followed. Furthermore, most judges will grant at least one motion to compel mediation; some order it from the get-go. See MCA §40-4-301 (though see also footnote 2). In most cases, mediation will result in a settlement. It may not be the perfect solution, but I call it “Rolling Stones justice”: You can’t always get what you want, but if you try, (sometimes…) you get what you need.
That said, some crises do fit the definition. Certainly if witnesses to be called at a hearing include law enforcement, medical personnel or mental health providers, those witnesses can establish if, in their neutral, third-party professional judgment, there is an emergency that endangers the child. Do not downplay a serious problem; just because many things that people consider a crisis aren’t a legal emergency does not mean that true emergencies don’t occur. Clearly they do. Also, if you have reasonable cause to suspect that child abuse, neglect or abandonment is occurring or a child may be at risk of the same, Montana’s Child and Family Services has a child abuse hotline at 1-866-820-5437 (1-866-820-KIDS).
Last but not least, sometimes a parent’s concerns are born of the issues surrounding the breakup of the relationship between the parties or the child’s responses to the breakup. Then, what is required is not legal action, but counseling. A lawyer is sometimes called a “counsellor at law”, but we don’t do this type of work! Please call a mental health care provider (they also charge less per hour than a lawyer and insurance may cover your sessions). A licensed counselor can help you figure out if problems can be resolved other than by legal action.
Here are some steps you can take to think ahead about your parenting plan and, perhaps, avoid a court hearing:
- Realize that your child’s other parent is important. Your child needs both of you and trying to cut the other parent out of a child’s life is, in most cases, not OK. Transitions are hard enough on kids. Further, do not use the child as a weapon against your child’s other parent. Montana law is clear: MCA §40-4-212(1)(l) states, in pertinent part, “. . .frequent and continuing contact with both parents . . . is considered to be in the child’s best interests unless the court determines, after a hearing, that contact with a parent would be detrimental to the child’s best interests.”
- Anticipate that your child may have issues about the parental breakup. Having parents split up is tough on kids and finger-pointing doesn’t help; it is what it is. My local court has recommended the book, Don’t Divorce Us! : Kids’ Advice to Divorcing Parents as a resource for people who file for a parenting plan in my judicial district.
- Anticipate the changing developmental needs of your child; disputes often arise as the child enters kindergarten, middle school and high school. It might take a year to get a parenting plan changed. Think ahead.
- Don’t make big changes to the parenting plan on a verbal agreement. If you both agree to a change, document it. Even if you don’t have a lawyer to draft a formal amendment (though I advise you consult one), at the very least, write down what both parents agree to, both parents sign and date the document (ideally with notarized signatures), and have it placed in the court file.3 A simple signed paper in the court file is not a court order and thus is not enforceable by law (unless you prepared proper documents with an Order for the judge to sign—again, call your attorney), but at least you are on record.
- Anticipate that either parent may move and decide how to help the child have a sense of stability:
- If the move is within the local area, it might mean that a change in neighborhood school could occur. Try to avoid that, and especially try not to change schools mid-year (at least as long as your child is happy at his or her school). Most schools in Montana are reasonable and are not going to force you to move your child in the middle of the year if you move across town. Also try to avoid switching schools every year; kids build friendships and their school can be an anchor of familiarity to a child. Work with the other parent and the school to make it happen.
- If one of the parents moves out of town, the moving parent usually knows this well in advance. If there will be a dispute, both sides usually suspect that too, so just call your friendly mediator and set up your dispute resolution process sooner rather than later. The 30-day notice provisions of MCA §40-4-217 (which is usually boilerplate in any Montana parenting plan), provide insufficient time for a contested hearing on a parenting plan revision.
- Don’t be sneaky. Giving your child’s other parent only 30 days notice of intent to move with a big “SURPRISE!” when you know they are apt to object is only going to result in your move being held up or your child being placed in limbo. Keep in mind that the burden is—at least informally—often on the parent who wants to move. Some courts, notably the Fourth Judicial District (Missoula and Mineral Counties), will not allow the child to be moved out of town (absent special circumstances) until there is either a stipulation (written, signed agreement) or a hearing on the merits.
- Anticipate that people will not stay single forever. Another time I guarantee my phone will ring is when a parent brings a new significant other into their family. It’s a coin toss who will start the legal drama (and often everyone involved contributes some responsibility), but it starts. And, this generally is not a crisis. (Unless the person is profiled at ConWeb or the Sexual or Violent Offender Registry (SVOR), in which case you might—or might not—have a situation. Best to call law enforcement if you are concerned.) Remarriage or moving with someone often triggers a new round of emotions related to the breakup. In such times, try to be respectful to your child’s other parent.
- Anticipate that people are going to travel for fun, on holidays, and for family milestones such as weddings and funerals. You already know if your child’s other parent has out of state relatives, and children do have a right to get to know these people. Most people like to take their children somewhere like Disney World or Hawaii or (for Montanans) Silverwood. If you are vacationing, inform the other parent well in advance—but also, don’t gloat about it. Always provide emergency contact information. If you’re the parent who has to stay home, try not to show resentment or jealousy in front of your child or the child’s other parent. And please, don’t send 10,000 texts a day to the child or the other parent while they are on their trip.
In short, when a parenting plan needs to be changed, it usually is obvious long before a crisis erupts. It is best to plan ahead so there is some chance that notice, negotiation and mediation can settle any disputes before court action has to be filed. Your lawyer appreciates advance planning and so will your child.
Always remember: BE A GROWNUP. Plan ahead. Take the high road. Be the bigger person. Your child will thank you for it.
1. Attributed to William Gladstone, British politician (1809 – 1898)
2. Where there is domestic violence, MCA §40-4-301 allows survivors to opt out of mediation in some circumstances. For more on this issue, the case Hendershott v. Westphal, 2011 MT 73, as modified by subsequent statute, addresses the issue. See this article for a layperson’s discussion, and this article for a law review discussion.
3. Ideally, the parties prepare a stipulated amended parenting plan, they both sign and notarize the document and prepare an order for the judge to sign. A lawyer can help you do this and it is not as expensive as a contested case arising from misunderstandings and restraining orders. MCA §40-4-219 governs amendment of parenting plans.