Montana 10th Judicial District Shared Parenting Guidelines, Revised January 2015
A powerful cause of stress, suffering, and maladjustment in children of parenting actions is not simply the separation of households itself, but continuing conflict between the parents before, during, and after a family separation. To minimize conflict over the children, the parents should agree on a parenting arrangement that is most conducive to the children having frequent and meaningful contact with both parents with as little conflict as possible. When parents' maturity, personality, 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 Judge in the Tenth Judicial District believes is generally reasonable, unless special circumstances require a different arrangement. (See Paragraph 1.5 below.) 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 best meets the needs of the children in that case.
1. GENERAL RULES
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 at UpToParents.org. Completion of the class is mandatory prior to the Court’s adoption of a Parenting Plan or signing of a Decree of Dissolution, unless properly waived by order of the Court. The Certificate of Completion must be filed with the Clerk of District Court.
In addition, the Court may refer parents and parents are encouraged to access additional web-based education programs and resources, including:
CHILDREN IN BETWEEN: http://online.divorce-education.com
CHILDREN IN MIDDLE: http://www.childreninthemiddle.com
PARENTING WISELY: http://parentingwisely.com
MY CHILD COMES FIRST: http://www.mychildcomesfirst.com
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 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 the children 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, over the objection of a fit parent, if it is in the children’s 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.
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 the child’s home, school, and community. The Court also will consider and balance, against the effect on the child, the Constitutional right of the parent to travel. When a 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. Unless excused from doing so by the Court, 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 outside of their place of employment. Consistent with this emphasis on improved parental communication, it is suggested that parents communicate well in advance about matters that will impact schooling or parenting.
If the parties are unable to communicate effectively, the court or the parties may limit the communication and set forth specific methods of communication, such as using text messages only or by trading notes during pick-ups and drop-offs of the children.
1.2 Grade Reports and Medical Information. Parents shall provide one another with grade reports and notices from school as they are received. Parents may communicate independently with the school and with the children's doctors and other professionals regarding the children, and are encouraged to do so. Each parent shall immediately notify the other of any medical emergencies or serious illnesses of the children. Each parent shall notify the other of school or other events (like church or scouts) involving parental participation.
If the child has received medical care or undergone a medical procedure that requires special physical care, the parents shall inform each other of the child’s special needs prior to an exchange. In addition, if the child is ill or requires special medications, each parent shall provide or be provided with a sufficient amount of medication, for his/her parenting time and the appropriate instructions.
1.3 Clothing. Parents shall send an appropriate supply of children's clothing with the children when going to the other parent’s home, which clothing shall be returned clean (when reasonably possible) with the children. Parents shall advise, as far in advance as possible, of any special activities so that 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 determine 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, non-payment of support does not justify withholding of parental contact and no parental contact does not justify not paying support. If there is a violation of either a parenting plan or a support order, the exclusive remedy is to apply to the court for appropriate sanctions.
1.5 Adjustments in Parental Contact Schedule. Even if a specific parenting schedule exists, 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 to the other party.
Missed Parental Contact: When scheduled parental contact cannot occur due to events beyond either parent’s 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.
1.6 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, and in the absence of a specific vacation schedule in the parenting plan, the parents shall communicate in writing on or before May 1st of each year their choices of vacation periods.
1.7 Insurance Forms. The parent who carries medical insurance coverage for 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 carrying the insurance shall promptly furnish the other parent with the bill and any explanation of benefits from the insurance with the bill by the other. The parents shall cooperate in submitting bills to the appropriate insurance carrier. Thereafter, each parent shall make arrangements directly with the health care provider to pay his/her share 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. Child support, once ordered, shall not stop, unless a court order otherwise provides (i.e., a minor child is emancipated). The only way child support can be changed is by court order or by proper documentation through Montana Child Support Enforcement Division (CSED). Parents cannot agree to a change in support without court approval. The purchase of clothing, food, or other necessities does not constitute an allowable deduction from court-ordered child support.
If the parties have contacted the Montana Child Support Enforcement Division (CSED), the Court shall defer discretion to CSED for continued calculation and enforcement of support.
1.9 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 even suggest otherwise, all of the children shall participate in any particular contact.
1.10 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 the 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 or voice message on a cell phone, messages left for the child on an answering machine/message cell phone should be returned. The Court also encourages and may order that parents agree on a specified time and days for calls to the children so that the children will be made available. The court also encourages the use of computer-based communication between the parents and children, such as with email, “skype” or “iChat.”
1.11 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.
1.12 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. 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.
TERMINOLOGY IN THE FOLLOWING SECTIONS INCLUDES PRIMARY CARETAKER, DESIGNATING THAT PERSON WITH WHOM THE CHILD SPENDS THE GREATER PORTION OF TIME, AND SECONDARY CARETAKER, DESIGNATING THAT PERSON WITH WHOM THE CHILD SPENDS A LESSER AMOUNT OF TIME.
1.13 Children Under Age Five. Infants (children under eighteen months of age) and toddlers (eighteen months to three years) have a great need for continuous contact with the primary caretaker who provides a sense of security, nurturing, and predictability. Generally overnight visits for infants and toddlers 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 (three to five) are able to tolerate limited separations from the primary caretaker. The following guidelines for children under age five are designed to take into account the child's developmental milestones as a basis for division of parenting time. 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 of the caretaking responsibilities for the child and the child is equally attached to both parents. Yet in the majority of situations where there are a primary caretaker and a secondary caretaker who has maintained a continuous relationship with the child but has not shared equally in child caretaking, the following guidelines apply:
A. Infants--Birth to Six Months. Children need to have affectionate bonds with both parents. Overnight parenting time with the secondary caretaker is not recommended. Time with the secondary caretaker should be spent at the primary caretaker’s home, as going back and forth between homes causes tension for the child. The infant's eating and sleeping routine should not be interrupted. Alternate parenting plans: (1) Three two-hour parenting time sessions per week and one weekend day for six hours; or (2) three two-hour parenting time sessions per week and one overnight on a weekend for no longer than a twelve-hour period, if the child is not breast feeding and the secondary caretaker is capable of providing primary care.
B. Infants--Six to Eighteen Months. Predictability and routine are important at this age. Overnight parenting time is still not recommended, but can be considered if the infant is going with older brothers or sisters the infant knows and trusts. Alternate parenting plans: (1) Three, three-hour parenting time sessions per week and 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 secondary caretaker is capable of providing primary care; or (3) Child spends time in alternate homes, but spends significantly more time at the primary caretaker’s home and no more than two twelve-hour overnights per week at the secondary caretaker’s home. This arrangement should be considered only for adaptable infants and very cooperative parents.
C. Toddlers--Eighteen to Thirty-Six Months. Toddlers start to learn that things and people continue to exist even when the child can't see them. A common fear is that the primary caretaker will disappear, and the toddler may cry when a parent leaves them. Longer periods with the secondary caretaker can begin. Short visits (2-4 hours) away from the primary caretaker's home are permissible; however, the child needs to take favorite things with him/her (blanket, stuffed animal, pacifier, etc.). At this age children do not understand time, days of the week, or that they will see mother or father "tomorrow" or in "two days" or on "Sunday." When away from the primary caretaker, the toddler may feel anger and a powerful sense of loss and often does not understand why mother or father isn't there. Alternate parenting plans: (1) The secondary caretaker has the child up to three times per week for 2-4 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 the primary caretaker’s home with two or three overnights with the secondary caretaker 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. Preschoolers can usually tolerate two days away from the primary caretaker, and they should see the secondary caretaker at least once each week. Children still have a strong need to take familiar things with them. Alternate parenting plans: (1) One overnight visit (i.e., Saturday morning to Sunday evening) on alternate weekends and one midweek visit with the child returning to the primary caretaker's home at least one-half hour before bedtime; or (2) Two or three nights at the secondary caretaker’s home, spaced throughout the week; the remaining time at the primary caretaker’s home. In addition, for preschoolers, a parent’s vacation of no longer than two weeks away from the other parent should be taken.
E. Educational Resources—For additional information on the above age range, please refer to www.zerotothree.org.
1.14 Pre-Teens and Teenagers.
A. Six to Twelve Years. School-age children need to see the secondary caretaker 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, children 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, social, school and sports activities are very important at this age. A decrease in the number of parental exchanges may be helpful. One of the things teenagers need to do is learn to "separate" from parents and achieve autonomy. They still need predictability and routine for their visits. Teens should be consulted in deciding on time-sharing plans. Teenagers tend to want one home base. 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.
1.16. 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. The secondary caretaker who exercises contact of a child under age five should not during the period of parental contact place the child with a babysitter or day care provider. If the secondary caretaker cannot be with the child personally, the child should be returned to the primary caretaker. Visiting for short periods with relatives may be appropriate, if the relatives are not merely serving as babysitters.
1.17 Day Care Providers. When parents reside in the same community, they should use the same day care provider. To the extent possible the parents should rely on each other to care for the children when the other parent is unavailable.
1.18 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 the abuse should cease or only be allowed under supervision, depending on the circumstances. Court intervention is usually required in child abuse cases.
B. Partner or Family Member Abuse. Witnessing partner or family member abuse has long-term, emotionally detrimental effects on children. Furthermore, a person who loses control and acts impulsively with a partner or family member 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 with a child for an extended period, parent-child contact should begin with brief visits, followed by 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 have parental contact with the other parent of only a few hours each day. A parent should not use breast feeding beyond the normal weaning age as a means to deprive the other parent of parental contact. The mother may send breast milk in bottles with the father.
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.
H. Religious Holidays and Native American Ceremonies. Parents should respect their children's needs to be raised in the faith and cultural traditions of each parent 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. School and Sports Activities. Parents should make reasonable accommodations for their children’s scheduled school and sports activities and may alter the parenting schedule accordingly.
J. 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 FOR THE SECONDARY CARETAKER WITH CHILDREN OVER AGE FIVE WHEN THERE IS SOLE CUSTODY OR SHARED PARENTING AND PARENTS RESIDE IN DIFFERENT COMMUNITIES BUT NO MORE THAN 200 MILES APART
2.1 Weekends. Alternate weekends from Friday at 5:30 p.m. to Sunday at 7:00 p.m.; the starting and ending times may change to fit the parents' schedules, or an equivalent period of time if the secondary caretaker is not available on weekends and the child does not miss school. In addition, if time and distance allow, one or two mid-week visits of two to three hours. All transportation for the mid-week visits are the responsibility of the secondary caretaker.
2.2 Mother's Day 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 secondary caretaker, the time may be consecutive, in the absence of agreement to the contrary if the child is age 8 or older, or it may be split into two blocks of time. If the child goes to summer school and it is impossible for the secondary caretaker to schedule this contact time other than during summer school, the secondary caretaker may elect to take the time when the child is in summer school and transport the child to the summer school session at the child's school or an equivalent summer school session in the secondary caretaker's community.
2.4 Winter (Christmas) Vacation. The Court favors that during the Winter Break, that each parent have 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 secondary caretaker shall have the first half, including Christmas Eve and Christmas day in even numbered years and the second half, including New Year’s Eve and New Year’s Day, in odd-numbered years. Although not preferred by the Court, if the parents live in the same community and mutually agree, in those years when Christmas does not fall in a parent's week, that parent may have from noon to 9:00 p.m. on Christmas Day. For toddlers and preschool age children, when the parents live in the same community and mutually agree, the parents may 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. In the absence of agreement to the contrary, parents shall alternate the following holiday weekends: Fall MEA Convention break, Easter or Spring School Break, and Thanksgiving. Thanksgiving will begin on Wednesday evening and end on Sunday evening. Fall MEA Convention break, Easter, and Spring Break will begin the evening School lets out for the break and ends Sunday Evening. All other Holiday weekends begin at 5:30 p.m. and end at 7:00 p.m. on the appropriate days.
2.6 Children's Birthdays. If the parents reside in the same location, 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. If the birthday falls on a weekday, it shall be celebrated from 3:00 p.m. to 9:00 p.m. (or so much of that period as the secondary caretaker elects to use).
2.7 Parents' Birthdays. The children should spend the day with the parent who is celebrating his/her birthday, unless it interferes with a secondary caretaker's extended parenting time during a vacation or holiday, or is impractical due to the location of the parents.
2.8 Conflicts Between Regular and Holiday Weekends. When there is a conflict between a holiday weekend and the regular weekend parenting period, the holiday takes precedence. Thus, if the secondary caretaker misses a regular weekend because it is the primary caretaker's holiday, the regular alternating parenting schedule will resume following the holiday. If the secondary caretaker receives two consecutive weekends because of a holiday, regular alternating parenting time will resume the following weekend with the primary caretaker. The parents should agree to make up missed weekends due to holiday conflicts.
2.9 Parental Contact Before and During Vacations. The secondary caretaker will not be entitled to parental contact the weekend before the beginning of the secondary caretaker's summer vacation parenting period(s). Similarly, the secondary caretaker’s alternating weekend parenting shall resume the second weekend after each of his/her periods of summer parenting contact that year. Weekend parenting time "missed" during the summer vacation period will not be "made up." During any extended summer parenting time of more than three consecutive weeks, it will be the secondary caretaker's duty to arrange, for a time mutually convenient, a 48 hour continuous period of parenting time for the primary caretaker unless impracticable because of distance and cost.
2.10 Notice of Canceled Parental Contact. Whenever possible, the secondary caretaker shall give a minimum of three days' notice of intent not to exercise all or part of any 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 primary caretaker shall give the same type of notice when events beyond his/her control make the cancellation or modification of scheduled parental contact necessary, giving the reason therefor. If the primary caretaker cancels or modifies a parenting period for secondary caretaker because the child has a schedule conflict, the secondary caretaker should be given the opportunity to take the child to the scheduled event or appointment in lieu of missing parenting time.
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 secondary caretaker will pick up from the primary caretaker’s residence and the primary caretaker will pick the children up from the secondary caretaker’s residence. The parents have an obligation to be punctual: to arrive at the agreed time not substantially earlier or later. Repeated, unjustified violations of this provision may subject the offender to court sanctions. When parents do not live in the same community, this responsibility shall be shared as well. The parents, or the Court if necessary, shall agree upon a convenient exchange plan and point of exchange.
2.12 Additional Parental Contact. Parental contact should be liberal and flexible. For many parents these guidelines should be considered as only 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 FIVE WHEN SOLE CUSTODY OR SHARED PARENTING AND PARENTS RESIDE MORE THAN 200 MILES APART
3.1 Extended Parental Contact. All but three weeks of the school summer vacation period and, on an alternating basis, the school Winter (Christmas) vacation, Thanksgiving, and Spring Break.
3.2 Priority of Summer Break. Summer break with the secondary caretaker takes precedence over summer activities (such as Little League, swimming lessons, etc.) when parental contact cannot be reasonably scheduled around such events. Even so, the conscientious secondary caretaker 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 and cost-effective 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 primary caretaker the right to deny parenting to the secondary caretaker.
3.4 Additional Parental Contact. Where distance and finances permit, additional parental contact for the secondary caretaker, such as for holiday weekends or special events, are encouraged. When the secondary caretaker is in the area where the child resides, or the child is in the area where the secondary caretaker resides, liberal parenting time shall be allowed and because the secondary caretaker does not get regular parenting time, the child can miss some school so long as doing so does not substantially impair the child's scholastic progress.
ADOPTED BY THE TENTH JUDICIAL DISTRICT COURT
Hon. Jon A. Oldenburg, District Court Judge