Legal Question in Family Law in Montana
My sister and her soon to be ex husband are in a nasty custody battle right now. They have NOT filed for divorce or seperation. On July 17th, 2009, my sister told her husband that she wanted a divorce. That night, he moved down the street to where his parents are living. They had negotiated a deal with their children (ages 9 and 6) that they were with him every week night from the time he got off work until 11, and then every weekend from Friday when he got off work until 11 Sunday night. This had all been working well until August 4th, 2009. The childrens father had them until 11 and brought them home at which time there were also 2-17 year old girls at the house with my sister. They have in the past been known to have underage drinking parties at the house. My brother in law was concerned about the kids so he was accompanied by the Sheriff to go assess the situation. They kids were give to my brother in law at that time. He brought to my house, and this is where they have all 3 been since then. I am being threatened by my sister to get charged with Custodial Interference and hoarding of her children. I have them during the day while my brother in law goes to work. I was advised by the Sheriff that if he leaves them in my care, I am NOT to give them to anyone else, unless I have his pre-approved permission or he does it himself. Help me, I don't know what I'm legally obligated to do.
1 Answer from Attorneys
I won't comment on the Sheriff's assessment because I don't have a police report.
I will, however, comment on the Sheriff's advice to you. In general, law enforcement personnel have not gone to law school and cannot give you legal advice. In your case, the Sheriff advised you to not release the children to anyone, including their mother who has a legal right to the children.
At this point, both parents have a legal right to "possess" the children (for lack of a better term). Law enforcement officers do not create law and are not authorized to create custody orders for your brother and sister-in-law. Only the court can do that and, so far, neither parent has sought the court's assistance.
Here are two ways they can protect their parenting time. They do not need to be divorced or legally separated to do this.
The simplest (not necessarily the easiest) is for parents to agree to sit down with a parenting mediator, discuss their concerns with the mediator, and work out a stipulated parenting plan ('stipulated' meaning 'agreed upon'). Write it up, sign in front of a notary, file it with the court. This is the only way to ensure and protect each parent's parental rights and time.
Otherwise, one parent files a petition to establish a parenting schedule. The other parent responds. The court will probably order mediation then, if that is not successful, will schedule a hearing on the disputed issues. The Court then issues a ruling.
This is not as simple as I've laid out, it's just a rough outline of what parents can do to protect their time, establish a consistent plan, and protect the children's best interests.
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