A powerful
cause of stress, suffering, and maladjustment in children of dissolution is
not simply the dissolution itself, but continuing conflict between the
parents before, during and after the dissolution. There are at least two
steps that this Court believes essential in order to minimize conflict over
the children:
(1) Upon the filing of a Petition for Dissolution or Legal Separation
where there are minor children or the filing of a Petition for Parenting Plan
between two unmarried individuals, the parties will be required to undertake
an orientation to parenting and divorce class.
Except under extraordinary circumstances, each party will attend a
separate class. Upon the filing
of the Petition, information will be provided to the parties regarding
scheduling of these classes. Payments
for the classes may be assessed against the parties.
Completion of the class is mandatory prior to the Court’s adoption
of a Parenting Plan or signing of a Decree of Dissolution.
(2) The parents should
agree on a shared parenting arrangement that is most conducive to the
children’s having frequent and meaningful contact with both parents with as
little conflict as possible. When parents’ maturity, personal ity and
communication skills are adequate, the ideal arrangement is reasonable
parental contact upon reasonable notice, since that provides the greatest
flexibility. The next best arrangement is a detailed parenting agreement made
by the parents to fit their particular needs and, more importantly, the needs
of the children. If the parents are unable to agree, however, the following
guidelines will help the parents in knowing what the presiding Judge in the
Tenth Judicial District believes are generally reasonable parenting periods,
unless special circumstances require a different arrangement. Unless these
guidelines are incorporated in a Court Order, they are not compulsory rules,
only a general direction for parents. In the event parental contact becomes
an issue in Court, the Judge reserves the right to set whatever parenting
schedule meets the best interests of the children in that case.
1.
GENERAL RULES
Parents should
always avoid speaking negatively about the other and should firmly discourage
such conduct by relatives or friends. In fact, the parents should speak in
positive terms about the other parent in the presence of the children. Each
parent should encourage the children to respect the other. Children should
never be used by one parent to spy on the other. Parents should establish the
basic rules of conduct and discipline to be observed by both parents and
step-parents so that the children do not receive mixed signals.
Children will
benefit from continued contact with all relatives and family friends on both
sides of the family for whom they feel affection. Such relationships should
be protected and encouraged. But relatives, like, parents, need to avoid
being critical of either parent in front of the children. Parents should have
their children maintain ties with both the maternal and paternal relatives.
In
Montana
, grandparents have a legal right to reasonable contact with their
grandchildren if it is in their best interests. Usually, the children will
visit with the paternal relatives during times the children are with their
father and with the maternal relatives during times they are with their
mother.
Parents should be
discouraged from making residential changes that are disruptive to a
child’s lifestyle, where the parents have been or are going through a
contentious dissolution/parenting case.
When the parents
are sharing in the parenting of a child, or at any time prior to the entry of
a decree, and both parents reside in the Tenth Judicial District, the Court
will consider a change of the child’s residence to a location outside the
Tenth Judicial District as having a significant effect upon the child’s
relationship to family members and others and adjustment to his/her home,
school, and community. The Court will also consider and balance the
Constitutional right of the parent to travel. When the custodial parent moves
out of the Tenth Judicial District, the child’s residence shall not be
moved outside the Tenth Judicial District without an Order from the Court
after hearing or upon written stipulation of the parties that is approved by
the Court. The Court will consider keeping the child in the Tenth Judicial
District as a positive development for the child based upon legitimate,
case-specific circumstances which must be presented to the Court
at a hearing with all parties present.
In cases where both
parents resided in the same community at the time of separation, and then one
parent left the area, thus changing the pattern of parental contact, the
Court will consider imposing the travel costs for the children necessary to
facilitate future contact, on the parent who moved. The Court will also
consider other factors, however, such as the economic circumstances of the
parents and the reasons prompting the move.
1.1 Parental Communication.
Parents should always keep each other advised of their home and work
addresses and telephone numbers. As far as possible, all communication
concerning the children shall be conducted between the parents themselves in
person, or by telephone at their residences and not at their places of
employment. Consistent with our emphasis on improved parental communication,
it is suggested that parents communicate well in advance about moves that
will impact schooling or visitation.
1.2
Grade Reports and Medical Information.
Parents shall provide one another with grade reports and notices from school
as they are received. Parents shall communicate independently with the school
and with the children’s doctors and other professionals regarding the
children. Each parent shall immediately notify the other of any medical
emergencies or serious illnesses of the children. Each parent shall notify
the other of all school or other events (like Church or Scouts) involving
parental participation. If the child is taking medications, each parent shall
provide or be provided with a sufficient amount of medication and the
appropriate instructions in writing delivered to the other parent at the time
the children are exchanged.
1.3
Clothing. Parents shall send
an appropriate supply of children’s clothing with them at parental
exchanges, which shall be returned clean (when reasonably possible), with the
children at the conclusion of the parenting period. Parents shall advise, as
far in advance as possible, of any special activities so that the appropriate
clothing may be sent.
1.4
Withholding Support or Parental Contact.
Neither parental contact nor child support is to be withheld because of
either parent’s failure to comply with a Court Order. Only the Court may
enter sanctions for non-compliance. Children have a right both to support and
parental contact, neither of which is dependent upon the other. In other
words, no support does not mean no parental contact, and no parental contact
does not mean no support. If there is a violation of eit her a parenting or a
support order, the exclusive remedy is to apply to the Court for appropriate
sanctions.
1.5
Adjustments in Parental Contact Schedule.
Although there is or there may be a specific schedule, the parties are
expected to fairly modify parental contact when family necessities, illnesses
or commitments reasonably so require. The requesting parent shall act in good
faith and give as much notice as circumstances permit.
1.6
Parent’s Vacation.
Unless otherwise specified in a Court Order or agreed by the parties, each
parent is entitled to a reasonable period of vacation time, usually equal to
that of the other parent. In the instance of extended vacation periods, i.e.,
summer vacations, the parents shall communicate in writing on or before May 1
of each year their choices of vacation periods.
1.7
Insurance Forms. The
parent who has medical insurance coverage on the children shall supply, as
applicable, insurance forms and a list of insurer-approved or HMO-qualified
health care providers in the area where the other parent is residing. A
parent who, except in an emergency, takes the children to a doctor, dentist
or other provider not so approved or qualified should pay the additional cost
thus created. However, when there is a change in insurance which requires a
change in medical care providers and a child has a chronic illness,
thoughtful consideration should be given by the parties to what is more
important: allowing the child to remain with the original provider or the
economic consequences of changing. When there is an obligation to pay medical
expenses, the parent responsible therefor shall be promptly furnished with
the bill by the other. The parents shall cooperate in submitting bills to the
appropriate insurance carrier. Thereafter, the parent responsible for paying
the balance of the bill shall make arrangements directly with the health care
provider and shall inform the other parent of such arrangements. Insurance
refunds should be promptly turned over to the parent who paid the bill for
which the refund was paid.
1.8
Child Support Modification. Child support, once ordered, shall not
change unless a Court Order otherwise provides. The only way child support
can be changed is by Court Order. Parents cannot agree to a change in support
without Court approval. The
purchase of clothing, food or other necessities does not constitute a
deduction from Court-ordered child support.
1.9
Missed Parental Contact.
When scheduled parental contact cannot occur due to events beyond either
parents’ control, such as illness of the child or of the parent exercising
contact with the child, a mutually agreeable substituted parental contact
date shall be arranged as quickly as possible. Each parent shall timely
advise the other when parental contact cannot be exercised. Missed parental
contact should not be unreasonably accumulated.
1.10
Parental Contact a Shared Experience. Because it is intended that
parental contact be a shared experience between siblings and, unless these
Guidelines, a Court Order, or circumstances, such as age, illness, or the
particular event, suggest otherwise, all of the children shall participate in
any particular contact.
1.11
Telephone Communication. Telephone calls between parent and child
shall be liberally permitted at reasonable hours and at the expense of the
calling parent. Parents may call the children at reasonable hours during
those periods the children are with the other parent. The children may, of
course, call either parent, though at reasonable hours, frequencies and at t
he cost of the parent called if it is a long distance call. During long
vacations the parent with whom the child is on vacation is only required to
make the child available to telephone calls every five days. At all other
times, the parent the child is with shall not refuse to answer the phone or
turn off the phone in order to deny the other parent telephone contact. If a
parent uses an answering machine, messages left on the machine for the child
should be returned. Parents should agree on a specified time for calls to the
children so that the children will be made available.
1.12
Mail Contact. Parents have an unrestricted right to send cards,
letters and packages to their children. The children also have the same right
with their parents. Neither parent should interfere with this right.
1.13
Privacy of Residence. A parent may not enter the residence of the
other except by express invitation of the resident parent, regardless of
whether a parent retains a property interest in the residence of the other.
Accordingly, the children shall be picked up and returned to the front
entrance of the appropriate residence or other appropriate pick up/drop off
location. The parent dropping the children off should not leave until the
children are safely inside. Parents should
refrain from surprise visits to the other parent’s home.
A parent’s time with the children is their own, and the children’s
time with that parent is equally private.
1.14 Divorce
Education Program. Except in
unusually amicable dissolutions, if there are children involved, both parents
will be required to attend and complete an approved Divorce Education
Program.
TERMINOLOGY
IN THE FOLLOWING SECTIONS INCLUDES RESIDENTIAL PARENT, DESIGNATING THAT
PERSON WITH WHOM THE CHILD SPENDS THE GREATER PROPORTION OF TIME AND
NON-RESIDENTIAL PARENT, DESIGNATING THAT PERSON WITH WHOM THE CHILD_SPENDS A
LESSER AMOUNT OF TIME.
1.16
Children Under Age Five. Infants (children under eighteen
months of age) have a great need for continuous contact with the
residential parent who provides a sense of security, nurturing and predictability.
Generally, overnight visits for infants are not recommended unless the
secondary caretaker is very closely attached to the child and is able to
provide primary care. Older preschool-age children (eighteen months to
five years) are able to tolerate some separations from the residential
parent. The following guidelines for children under age five are designed to
take into account the child’s developmental milestones as a basis for
parenting. Since children mature at different rates, these may need to be
adjusted to fit the child’s unique circumstances. These guidelines may not
apply to those instances where the parents are truly sharing equally all the
caretaking responsibilities for the child and the child is equally attached
to both parents. In the majority of situations, the following guidelines
should generally apply:
A.
Infants Birth to Six Months. Bonding is important at this age.
Children need to have affectionate bonds with both parents.
Overnight parenting by the non-residential parent is not usually granted.
The infant’s eating and sleeping routine should not be interrupted.
Alternate parenting plans: (1) Three two-hour visits per week, with one
weekend day for six hours; or (2) three two-hour visits per week, with one
overnight on a weekend for no longer than a twelve hour period, if the child
is not breast feeding and the non-residential parent is capable of providing
primary care.
B.
Infants Six to Eighteen Months. Predictability and routine are
important at this age. Overnight visits may be considered such as when an
infant is going with older brothers or sisters the infant knows and trusts.
Alternate parenting plans: (1) Three, three-hour visits per week with one
weekend day for six hours; or (2) same as (1), but with one overnight not to
exceed twelve hours, if the child is not breast feeding and the
non-residential parent is capable of providing primary care; or (3) child
spends time in alternate homes, but spends significantly more time at one of
them and no more than two twelve-hour overnights per week at the other. This
arrangement should be considered only for mature, adaptable children and very
cooperative parents.
C. Toddlers Eighteen to Thirty-Six
Months. Children start to learn that things and people continue to exist
even when the child can’t see them. A
common fear is that the residential parent will disappear and they may cry
when a parent leaves them. Longer periods with the non-residential parent are
generally appropriate. Overnight
visits (2-4 days) away from the child’s home are permissible, however, the
child needs to take favorite things with him/her (blanket or stuffed animal
or pacifier, etc.). At this age children do not understand time, or days of
the week, or that they will see mother or father “tomorrow” or in “two
days” or on “Sunday.” When away from the residential parent, they may
feel anger and a powerful sense of loss and often do not understand why
mother or father isn’t there. Alternate parenting plans: (1) the
non-residential parent has the child up to three times per week for several
hours on each visit, on a predictable schedule: or (2) same as (1) but with
one overnight per week; or (3) child spends time in alternate homes, but with
more time in one than the other with two or three overnights spaced regularly
throughout the week. This requires an adaptable child and cooperative
parents.
D.
Preschoolers (Three to Five Years Old).
The most important thing is predictability. Children can usually tolerate
more extensive time away from the residential parent and they should see the
other parent at least once each week. Children still have a strong need to
take familiar things with them. Alternate parenting plans: (1) one weekend
parenting period (i.e. Friday evening to Sunday evening) on alternate
weekends and one midweek visit or overnight; or (2) two or three nights at
one home, spaced throughout the week, the remaining time at the other home.
In addition, for preschoolers, a vacation period for a number of weeks with
the non-residential parent is appropriate.
1.17
Pre-Teens and Teenagers.
A. Six to Twelve Years.
School age children need to see the non-residential parent one or more times
each week, and seem happiest with several visits each week. Children this age
will want their own things at each home, but will wish to take some things
back and forth with them for their own security. At about age seven, a child
can cope better with longer periods of parental contact during summer months
because they understand about time and can count and can understand what a
week or month is.
B.
Thirteen Years and Up.
Friends and social activities are very important at this age. A decrease in
the number of parental exchanges may be helpful. Teenagers have less need for
long visits and once or twice a week for a few hours may be sufficient. One
of the things teenagers need to do is learn to “separate” from parents
and to achieve autonomy. They still need predictability, routine and
structure for their visits. Teens should be consulted in deciding on
time-sharing plans. Teenagers tend to want one home base.
1.18
Children in Day Care. In families where a child has been in day
care prior to the parental separation, the child may be able to tolerate
flexible visits earlier because the child is more accustomed to separations
from both parents. It is
generally not acceptable during a period of parental contact to place the
child with a babysitter or daycare provider if the other parent is available
and willing to take the child personally.
Visiting for short periods with relatives may be appropriate, if the
relatives are not merely serving as babysitters.
1.19
Parental Contact with Adolescents.
Within reason the parents should honestly and fairly consider their
teenager’s wishes regarding parental contact. Neither parent should attempt
to pressure their teenager to make a parental contact decision adverse to the
other parent. Teenagers should explain the reasons for their wishes directly
to the affected parent, without intervention by the other parent.
1.20
Daycare Providers.
When parents reside in the same community, they should use the same daycare
provider.
1.21
Special Circumstances.
A.
Child Abuse. When
child abuse has been established and a continuing danger is shown to exist,
all parental contact with the perpetrator of said abuse should cease or only
be allowed under supervision, depending on the circumstances. Court
intervention is usually required in child abuse cases.
B.
Spouse Abuse.
Witnessing spouse abuse has long-term, emotionally detrimental effects on
children. Furthermore, a person who loses control and acts impulsively with a
spouse, may be capable of doing so with children as well. Depending on the
nature of the spouse abuse and when it occurred, the Court may require an
abusive spouse to successfully complete appropriate counseling before being
permitted unsupervised parental contact.
C.
Substance Abuse. Parental
contact should not occur when a parent is abusing drugs/alcohol.
D.
Long Interruption of Contact.
In those situations where a parent has not had an ongoing relationship for an
extended period, parental contact should begin with brief visits and a very
gradual transition to the parental contact in these guidelines.
E.
Kidnapping/Threats.
Parents who have kidnapped or hidden the children or threatened to do so
should have no parental contact or only supervised parental contact.
F.
Breast Feeding Child. Forcibly weaning a child, whether breast
feeding or bottle feeding, during the upheaval of parental separation is not
appropriate for the physical health or emotional well-being of the child.
Until weaning has occurred without forcing, a nursing infant should still
have substantial parental contact. A parent should not use breast feeding
beyond the normal weaning age as a means to deprive the other parent of
parental contact.
G.
A Parent’s New Relationship.
Parents should be sensitive to the danger of exposing the children too
quickly to new relationships while they are still adjusting to the trauma of
their parent’s separation and dissolution.
H.
Religious Holidays and Native American Ceremonies.
Parents should respect their children’s needs to be raised in their faith
and in keeping with their cultural heritage and cooperate with each other on
parental contact to achieve these goals. These goals should not be used to
deprive a parent of parental contact.
I.
Other. The Court may limit or deny parental contact to parents who
show neglectful, impulsive, immoral, criminal, assaultive or risk-taking
behavior with or in the presence of the children.
2.
PARENTAL CONTACT
WITH CHILDREN OVER AGE FIVE WHEN PARENTS RESIDE NO MORE THAN 200 MILES
APART
2.1
Weekends. Alternate weekends from Friday at 5:30 P.M. to Sunday at
7 P.M.; the starting and ending times may change to fit the parents’
schedules. Or an equivalent period of time if the non-residential parent is
not available on weekends and the child does not miss school. In addition, if
time and distance allow, one or two midweek visits of two to three hours. All
transportation for the midweek visits is the responsibility of the
non-residential parent.
2.2
Mother’s Day and Father’s Day. The alternate weekends will be shifted, exchanged or
arranged so that the children are with their mother each Mother’s Day
weekend and with their father each Father’s Day weekend. Conflicts between
these special weekends and regular parental contact shall be resolved
pursuant to Paragraph 1.9.
2.3
Extended Parental Contact. One-half of the school summer vacation.
At the option of the non-residential parent, the time may be consecutive or
it may be split into two blocks of time. If the child goes to summer school
and it is impossible for the non-residential parent to schedule this contact
time other than during summer school, that parent may elect to take the time
when the child is in summer school and transport the child to the summer
school se ssion at the child’s school or an equivalent summer school
session in the community. Summer
school may not be used to deprive the non-residential parent of parenting
time.
2.4
Winter (Christmas) Vacation. One-half the school winter vacation,
a period which begins the evening the child is released from school and
continues to the evening of the day before the child will return to school.
If the parents cannot agree on the division of this period, the
non-residential parent shall have the fir st half in even-number years. If
the parents live in the same community, in those years when Christmas does
not fall in a parent’s week, that parent shall have from noon to 9 P.M. on
Christmas Day. For toddlers and preschool age children, when the parents live
in the same community, the parents should alternate each year Christmas Eve
and Christmas Day so that the children spend equal time with each parent
during this holiday period.
2.5
Holidays. Parents shall alternate the following holiday
weekends: Easter, Memorial Day, the 4th of July, Labor Day and Thanksgiving.
Thanksgiving will begin on Wednesday evening and end on Sunday evening;
Memorial Day and Labor Day Weekends will begin on Friday and end on Monday
evening; Easter weekend will begin on Thursday evening and end on Sunday
evening: while the 4th of July, when it does not fall on a weekend, shall
include the weekend closest to the 4th.
Holiday
weekends begin at 5:30 P.M. and end at 7 P.M. on the appropriate days.
2.6
Children’s Birthdays. Like the holidays, a child’s birthday
shall be alternated annually between the parents. If the birthday falls on a
weekend, it shall extend to the full weekend, and any resulting conflict with
regular visitation shall be resolved pursuant to Paragraph 1.9. If the
birthday falls on a weekday, it shall be celebrated from 3 P.M. to 9 P.M. (or
so much of that period as the non-residential parent elects to use).
2.7
Parents’ Birthdays. The children should spend the day with the
parent who is celebrating their birthday, unless it interferes with a
non-residential parent’s extended visitation during vacation.
2.8
Conflicts Between Regular and
Holiday
Weekends. When there is a conflict between a holiday weekend and the
regular weekend parenting, the holiday takes precedence. Thus, if the
non-residential parent misses a regular weekend because it is the residential
parent’s holiday, the regular alternating parenting schedule will resume
following the holiday. If the non -residential parent receives two
consecutive weekends because of a holiday, regular alternating parenting will
resume the following weekend with the residential parent. The parents should
agree to make up missed weekends due to holiday conflicts.
2.9
Parental Contact Before and During Vacations. There will be no
parental contact the weekend(s) before the beginning of the non-residential
parent’s summer vacation parenting period(s), regardless of whose weekend
it may be. Similarly, that parent’s alternating weekend parenting period(s)
shall resume the second weekend after each period of summer vacation that
year. Weekend parenting “missed” during the summer vacation period will
not be “made up.” During any extended summer parenting of more than three
consecutive weeks, it will be the non-residential parent’s duty to arrange,
for a time mutually convenient, a 48-hour continuous parenting period for the
residential parent unless impracticable because of distance.
2.10
Notice of Canceled Parental Contact.
Whenever possible, the non-residential parent shall give a minimum of three
days’ notice of intent not to exercise all or part of the scheduled
parental contact. When such notice is not reasonably possible, the maximum
notice permitted by the circumstances, and the reason therefor, shall be
given. The residential parent shall give the same type of notice when events
beyond their control make the cancellation or modification of scheduled
parental contact necessary. If the residential parent cancels or modifies a
visit because the child has a schedule conflict, the non-residential parent
should be given the opportunity to take the child to the scheduled event or
appointment.
2.11
Pick Up and Return of Children.
When the parents live in the same community, the responsibility of picking up
and returning the children should be shared. Usually, the non-residential
parent will pick up and the residential parent will return the children to
that parent’s residence. The person picking up or returning the children
during times of parental contact has an obligation to be punctual: to arrive
at the agreed time and not substantially earlier or later. Repeated,
unjustified, violations of this provision may subject the offender to Court
sanctions.
2.12
Additional Parental Contact.
Parental contact should be liberal and flexible. For many parents these
guidelines should be considered a minimum direction for interaction with the
children. These guidelines are not meant to foreclose the parents from
agreeing to such additional parental contact as they find reasonable at any
given time.
3.
PARENTAL CONTACT
OF CHILDREN OVER AGE THREE WHEN SOLE PARENTING OR SHARED PARENTING AND
PARENTS RESIDE MORE THAN 200 MILES APART
3.1
Extended Parental Contact.
All but two weeks of the school summer vacation period and, on an alternating
basis, the school winter (Christmas) vacation and spring break.
3.2
Priority of Summer Break. Summer break with the non-residential
caretaker takes precedence over summer activities (such as Little League)
when the parental contact cannot be reasonably scheduled around such events.
E ven so, the conscientious non-residential parent will often be able
to enroll the child in a similar activity.
3.3
Notice. At least 60 days’ notice should be given of the date for
commencing extended parental contact, so that the most efficient means of
transportation may be obtained and the parties and the children may arrange
their schedules. Failure to give the precise number of days’ notice does
not entitle the residential parent the right to deny visitation.
3.4
Additional Parental Contact. Where distance and finances permit,
additional parental contact, such as for holiday weekends or special events,
are encouraged. When the non-residential parent is in the area where the
child resides, or the child is in the area where the non-residential parent
resides, liberal visitation shall be allowed and because the non-residential
parent does not get regular visitation, the child can miss some school during
the visits so long as it does not substantially impair the child’s
scholastic progress.
ADOPTED BY THE TENTH JUDICIAL
DISTRICT COURT
SEPTEMBER 7, 2004
_______________________________
E.
Wayne Phillips, Presiding Judge
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