Archive for the ‘CHILDREN’ Category

Summary Dismissal of Motion to Modify Parenting Plan Reversed

Monday, April 13th, 2009

Parents divorced in in Colorado 1999 with 2 children ages 1 and 3. They agreed to week on/week off parenting plan. Dad moves to California and back twice. Mom moves to Pony, Montana in 2005 and 2 months later, dad moves to McAllister, Montana and resumes the original Colorado parenting schedule. (Google places the two communities, near Ennis Lake, 26 miles apart). In 2007, mom registers the Colorado decree in Montana, then moves to modify the parenting plan. The District Court dismissed her case without hearing.

Reversed. The Montana Supreme Court cited allegations by mom that: 1) current age of the children (11 and 13) and changed needs; 2) children having difficulty at school arising from inconsistent rules and schedules in the 2 households; 3) children having expressed strong desire to change the plan.

The Court found these allegations, if true, “… could warrant modification of the parenting plan pursuant to §40-4-219, MCA.” §40-4-220 MCA requires a trial court to deny a motion to modify a parenting plan “… unless it finds that adequate cause for hearing the motion is established by the affidavits, based on the best interest of the child ….” Neither the Appellant nor the Supreme Court opinion cited this statute, however.

In Re Marriage of Chapman and Panagakis, 2009 MT 119N.

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Birth Dates Published By the Court

Friday, April 10th, 2009

The Montana Supreme Court published In Re Marriage of Chapman and Panagakis, 2009 MT 119N, on April 9, 2009. The decision itself contains the full dates of birth of both children. Section 4.50 (c)(4) of the Rules for Privacy and Public Access to Court Records in Montana states that full birth dates of any person are not to be shown in any public court record. Technically, this inclusion of private information in a court decision does not violate the Privacy Rules, as Section 4.50 (d) places sole responsibility for keeping such information out of court records on the litigant: “It is the responsibility of the filing party to comply with these rules to protect private information.”

This case illustrates the difficulty in sanitizing public court records of information that could lead to identity theft or worse. It is exceedingly easy for these kinds of details to be overlooked. Once published on the internet, however, all court control of this information is lost. These birth dates will be available forever.

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Consequences of Domestic Violence: 6 year old child — 17 foster placements in one year

Wednesday, April 8th, 2009

In the Matter of B.S. and G.S. 2009 MT 113, there were numerous incidents of domestic violence witnessed by the 6 year old boy and 3 year old daughter. The parental rights of both the mother and the father were terminated. The mother appealed. Among other things, the mother argued that there was insufficient proof that the children had been abused or neglected because the children had never gone through a psychological examination. See Paragraph 24. The effect of the children’s observations of parental violence, was obvious: “Six-year-old G.S. had been in 17 residential placements during the preceding year, and was possibly headed for “the next level” of inpatient therapeutic treatment due to his extreme levels of violence.” See Paragraph 15.

A tough start in life for these kids. A good decision by the trial court and the Montana Supreme Court.

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High Conflict Parenting: Marriage of Olson 2008 MT 232

Thursday, July 3rd, 2008

Couple with preschool daughter they constantly fight over. GAL recommends primary care with dad, with mom to receive alternating weekends and one evening a week. GAL testifies 1) daughter does better when she has been living with one parent 2) dad has close relationship to daughter 3) transitions between parents are occasions for conflict; 4) mom instigates conflict more than dad; 5) mom’s housing appears less stable; 6) child sometimes reluctant to leave school with either mom or mom’s boyfriend. These parenting arrangements recommended by Standing Master, adopted by District Court and approved by Supreme Court. GAL stated also that dad was better able to integrate daughter into community than mom, who is a Mexican national. Supreme Court stated that consideration of race or national origin was improper basis for parenting plan, but did not appear to be the basis for the decision by Standing Master or District Court. Audio tape recording of the hearing before Standing Master was not perfect, but adequate for appellate review and therefore not a basis for reversal. Finally, the District Court made a mathematical error in the amount of house sale proceeds to be awarded mom, so reversed and remanded to correct the error.

See: 40-4-212 (1)(h) and 3-5-124 MCA, Mont. Const. Art. II, Section 4.

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