Montana judges discuss approach to contentious family law cases

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Three weeks after her son Brody turned 16, Jody Hill said he got into a fight with his dad.

Through tears, Hill said Montana courts could have intervened and helped keep Brody safe, but last fall, he took his own life.

“My son would be here today had the courts had better tools,” Hill said.

Tuesday, Hill and other members of the public told the Law and Justice interim committee that Montana judges need more training in family law. Some alleged manipulation by former spouses and unfair actions by courts where “abusers are rewarded.”

A panel of judges, however, said they have the chance to learn more about topics related to family law at least once a year and in ongoing webinars, although they didn’t weigh in on whether they believe the education is adequate.

During the panel, the judges talked with the committee about how courts make decisions in contentious child custody cases, including ones with abuse allegations. The judges said they focus on a child’s safety and, if possible, on ensuring the child has a relationship with both parents.

“Family law can be really contentious,” said Judge Rienne McElyea, of Gallatin County. “These are the most important issues for people and the human experience.”

Chairperson Amy Regier, R-Kalispell, said the discussion at the meeting was a starting point, and the committee may consider more information in the future.

In 2023, the Montana Legislature voted against a much-amended bill called “Safety of the Child First Act,” Senate Bill 250, which would have included some funding for judges to take domestic violence training.

However, Democrats and Republicans who opposed the bill said as written, it could have upended settled child custody cases with a retroactivity clause, and doing so would unduly burden the courts.

Sponsored by Sen. Theresa Manzella, R-Hamilton, the bill also would have stopped the removal of children from parents who don’t face abuse allegations and stopped a child from being reunited with a parent who has faced abuse allegations.

Tuesday during the panel, district court Judges McElyea, Leslie Halligan and Brenda Gilbert answered questions the committee had sent in advance. The agenda item was called “parental alienation syndrome,” a theory most mental health professionals consider “junk science,” according to a 2023 ProPublica investigation.

The theory is that one parent unfairly turns a child against another parent with false accusations, such as that the child is being abused, but the idea isn’t accepted as a disorder by mainstream scientists.

However, the judges shared with lawmakers their approaches to high-conflict parenting; the frequency of domestic violence or child abuse allegations; and the types of training judges receive.

Judge Leslie Halligan, of Missoula and Mineral counties, said it’s important to get a handle on the facts in order to ensure a child’s safety. Sometimes, cases involve addiction issues or a history of domestic violence.

A lot of conflict stems from an inability of parties to communicate and understand each other, so Halligan said she tries to listen to people in her courtroom, including to figure out if they need outside professional help because it can be expensive.

“Certainly, hearing people and listening carefully is helpful, I think, in trying to figure out the conflict,” Halligan said.

She said research indicates problems are created when courts look only for specific terms, such as “parental alienation.” She also said when custody is changed as a result of such allegations, other issues, such as physical and sexual abuse, might be overlooked.

Halligan said she prefers to look at how to promote healthy relationships with both parents and how to ensure a child’s safety. The judge also said when she’s wrong, she doesn’t mind taking another look at a case.

Judge Gilbert, of Park and Sweet Grass counties, said most family law cases are resolved with “very little” involvement of the court, although violence is alleged in roughly 25% of the cases she sees. Most of the time, she said, domestic violence is between parents rather than the physical abuse of a child by a parent.

However, Gilbert also said it is harmful for children to witness violence even if they’re not targets themselves.

As for education in family law, the judges said at least one of two trainings they have the opportunity to take every year touches on family law, such as a 2.5- or three-hour seminar.

Gilbert said in addition to those trainings, she believes most judges consider family law decisions that come down from the Montana Supreme Court as “an ongoing form of education.”

Additionally, Gilbert said many judges who are new on the bench will attend a two-week course at a judicial college at the University of Nevada in Reno, and it includes a lot of family law training and also offers ongoing free webinars.

Sen. Keith Regier, R-Kalispell, said he wanted to know about the times McElyea signed off on mediated parenting plans without seeing parents at all. He asked if the judge vets the mediators given all the faith she’s putting in them.

McElyea said it was a good question. She said she doesn’t vet mediators, although her community has good ones, and she also said the legislature amended a statute a decade or so ago to dispense with the necessity of a hearing.

At the same time, McElyea said she doesn’t sign off on every single mediation plan.

For example, if she sees a parent waive child support, she wants to be sure there isn’t an imbalance of power, so in that case, she might set a hearing. However, she said she believes no one can better decide disputes than parents themselves.

“I put a lot of faith in that relationship between the parents,” McElyea said.

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