Pilot Peak
March 24th, 2009Using Initials for Parents’ Names
March 23rd, 2009In two recent cases, a parenting plan case and a divorce case with children, the Montana Supreme Court has required the parties to replace the parents’ names with initials. In Re the Marriage of R.M. and M.M. 2009 MT 52N the Court refused to allow the Appellant’s brief to be filed until the Appellant substituted initials for the names of the parents. Section 4.50 (c)(3) of the Rules for Privacy and Public Access to Court Records in Montana (“Access Rules”) requires children’s names to be redacted from published court records. But there is no mention in the Access Rules of redacting the names of any adults. In its Order issued August 11, 2008 sending the Appellant’s brief back, the Court acknowledged this, but declared “… we realize that the Rules do not require the names of the adult parties to be protected from public access; however, in order to fully comply with Section 4.50(c)(3), it is generally necessary that initials be used in place of the parents’ names as well.”
Further checking confirmed that the Court had returned an Appellee’s Brief in a parenting plan case as well. In Re the Parenting of K.A.R., a Minor, D.R., A.R. and J.M.R., Petitioners and Appellees, and D.E.R. Respondent and Appellant, 2009 MT 73N, decided March 11, 2009, the Court issued its Order returning the Appellee’s brief on July 9, 2008.
Deleting parents names in divorces and parenting plan actions will protect the identities of the children. And I am grateful the Court is obviously taking pains to protect the privacy of our most vulnerable citizens. But this new policy will create other practical problems for the litigants. For one, title companies will find it difficult to independently run title on the homes of the litigants.
Grandparents Prevail Over Long Absent Father
March 14th, 2009In 1996, Mom has a child in Louisiana with Dad. Dad does not know she was pregnant and does not know he is a father. Mom relinquishes custody in Louisiana to her parents, the maternal grandparents. Louisiana court issues order transferring custody to grandparents. Then grandparents, mom and child all move to Montana. In 2006, 10 years after the child’s birth, the grandparents apply for medicaid benefits for the child. Dad is contacted and child support ordered. Dad seeks custody in parenting plan proceedings now in Montana. District Court refuses to grant dad custody, ordering instead a plan that gradually introduces him to the child with supervised visits initially and then a mental health professional to monitor how that is going with the anticipation that dad will first move on to unsupervised visits in Montana and later visits in Louisiana where he still resides. Dad appealed both on the basis of inadequate findings to support the trial court rulings and on constitutional grounds. The Supreme Court affirmed the trial court stating that the findings were sufficient and stating that the appellant had failed to file a motion and brief preserving the constitutional issue on appeal. The case is In Re Parenting of K.A.R. 2009 MT 73N.
Making Arguments By Reference
March 13th, 2009If you really wish to create a terrible impression with the Montana Supreme Court, don’t bother to make your arguments in your brief, simply tell the Court to read what you wrote in your trial court briefs. In State v. Cybulski 2009 MT 70, the appellate did that. The Supreme Court’s reaction was simply scathing.
Bears Tooth
February 28th, 2009
Involuntary Commitment Jury Trial
February 23rd, 2009In the Matter of D.M.S. 2009 MT 41 is an unusual case — an involuntary commitment case conducted before a jury. Occasionally we deal with mentally ill spouses or parents who pose a danger to their children or the other parent. The Supreme Court reversed the jury decision committing DMS. DMS had a cognitive disorder. DMS had committed acts of violence. But the Supreme Court found there was no causal connection between his mental illness and an imminent threat of injury to himself or others. Justice Warner dissented.
Findings Needed For Appellate Review
February 19th, 2009Trial court must include findings and conclusions in its order. Reversed for failure of District Court to do so in a parenting plan modification case. Here the Judge ordered both permanent change to the parenting plan plus ordered future counseling with the reservation to the judge to make further modifications to the order, which it did. Reversed and remanded for findings. Marriage of Banka. 2009 MT 33.
Adoption: termination of father’s parental rights denied. 2009 MT 22
February 19th, 2009District Court refused to terminate father’s rights and allow the guardians, the maternal grandparents, to adopt. The court can terminate if under Section 42-2-610 MCA, the putative father failed to establish and maintain relationship, or under Section 42-2-608 MCA, father is unfit. Here the father was in Iraq for a time, then came back and sought contact with the child and provided some support. That was enough to cause the trial court not to terminate his rights. Affirmed by the Supreme Court.
Adoption of R.A.J. 2009 MT 22.
Electronic Privacy Bill To Be Tabled
February 17th, 2009Senate Bill 338, introduced February 2, 2009 before the Montana Legislature will be tabled. The bill would have protected information about children from internet dissemination when the Montana Courts switch to e-filing. The Montana Supreme Court will not be changing to an e-filing system within the next two years, and we will be working further with the Court to explore privacy protections. Here’s a link link to the text of the bill.
High Conflict Parenting: Marriage of Olson 2008 MT 232
July 3rd, 2008Couple 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.
