Montana high court ruling protects domestic violence victims in custody cases

Source Missoulian

A recent Montana Supreme Court decision means that domestic violence victims no longer can be forced into mediation over custody arrangements in divorce cases.

“Parents and children are going to be safer because of this decision,” said Monte Jewell, the Missoula attorney who appealed the case, Hendershott v. Westphal, to the Supreme Court.

Last year, Heidi Hendershott balked at a requirement for mandatory mediation over the custody – in Montana, it’s called a “parenting plan” – of her two children with her former husband, Jesse Westphal, of Kila in Flathead County.

Westphal, who represented himself during the proceedings, did not return a telephone call seeking comment for this story.

Hendershott had testified during divorce proceedings that Westphal “was ‘emotionally controlling’ and that being forced to meet with him made her fearful and nervous,” according to the court’s unanimous decision, written by Justice Beth Baker.

Westphal, however, was insistent on mediation, and state law appeared to give him some support – an issue addressed in Baker’s opinion.

“This Court operates under the presumption that the Legislature does not pass meaningless legislation,” Baker wrote.

The problem, said Jewell, “is that there’s a little bit of inconsistency of language between two statutes.”

That inconsistency, applied to parenting plan mediation, led courts to allow exceptions only for victims of physical violence, he said.

“Our (legal) code hasn’t caught up to the fact that emotional abuse and economic abuse is also part of domestic violence,” said Kelsen Young, executive director of the Montana Coalition Against Domestic and Sexual Violence.

The result is that victims of such abuse frequently are ordered into custody mediation with a problematic partner, according to Young and others.

“It comes up very often, I would say more often than I care to think about,” said Eduardo Capulong, a professor at the University of Montana’s School of Law and director of its mediation clinic.

The Supreme Court examined the laws in question and found “an absolute bar to mediation” in cases where physical, sexual or emotional abuse is suspected. The word suspected is key.

“Hendershott established a very low standard, which is a good thing for domestic violence” cases, Capulong said.

That’s because relationships that haven’t previously involved actual physical abuse often turn violent when someone leaves, Young said.

“It’s always something we’re worried about when working with victims of domestic violence,” said Cindy Weese, executive director of the YWCA of Missoula. “Emotional and psychological abuse is very detrimental and isn’t covered in the parenting plan statute.”

Weese pronounced herself “absolutely thrilled” with the court’s April 12 decision.

“Now we need to go back in and change the legislation around parenting plans,” she said.

The court suggested as much, writing that “the Legislature may wish to consider the potential conflict between its reference to physical abuse and the more expansive reference to abuse” in state law.

Meanwhile, agencies that deal with domestic violence will work to get the word out about the court’s decision.

“Now I think the issue, concretely, for the courts and mediators is how to establish a protocol to screen for cases in which there’s domestic violence so that we can appropriately refer them,” whether to mediation or not, Capulong said.

Missoula County is already ahead of the game, Jewell said.

“A lot of lawyers and advocates in Missoula are spoiled because our judges are really fast,” he said. “Communications have occurred already. Judges and their assistants already seem to be aware” of the ruling.

Said Capulong: “It’s quite a significant case.”