Exception(al) Opinion: Supreme Court of Montana Opinion Might Mean Montana Has Broadest Abuse Exception to Court-Ordered Mediation

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Mediation in child custody determinations is popular, partly due to the mediation principle of neutrality, which theoretically gives both parents an equal chance at a fair allocation of parenting time. However, not all divorce cases are appropriate for mediation. In severe cases of intimate partner violence there are power and control dynamics in which victims may have little bargaining power with their batterer. When a screening for domestic violence indicates safety risks to victims, their children, and possibly the mediator, it is imprudent and possibly negligent to undertake the mediation process in these cases. There is a controversy over whether mandatory custody mediation is appropriate in the context of domestic violence that is clear from the differences between state statutes in the United States. Jan Jeske, Custody Mediation Within the Context of Domestic Violence, 31 Hamline J. Pub. L. & Pol’y 657, 659-60 (2010)

Some states hold that domestic violence is merely one of several factors that courts can use in their discretion to decide whether mediation is appropriate. See, e.g., Pollack v. Anderson, 2007 WL 5476610 at *7 (Ariz.App. Div. 1 2007). Other states preclude courts from ordering mediation in cases involving domestic abuse/domestic violence, with such abuse/violence being defined narrowly as actual or threatened physical or sexual violence. See, e.g., Adolphson v. Yourzak, 2008 WL 4628722 at *6 (Minn.App. 2008). As one author has put it, “Some jurisdictions allow opt-out provisions for the victim, some ban custody mediation in cases involving domestic violence, and others permit judicial discretion on an individualized, case-by-case basis in ordering custody mediation.” Jeske, supra, at 674. And then, there is Montana, which after the recent opinion of the Supreme Court of Montana in Hendershott v. Westphal, 2011 WL 1376319 (Mont. 2011), has what I believe to be the broadest exception to custody mediation. And that’s a good thing.

So, let’s start by contextualizing the issue.

Mediation is used in thousands of divorce-related custody disputes annually in the United States as evident by a fifty-state survey of custody mediation statutes. The majority of mediation programs authorize domestic relations courts to compel participation by parties who contest custody or access. Custody mediation statutes often govern such matters as to whose participation is required or allowed, exceptions, if any, as to who is required to mediate, confidentiality, whether mediators can make recommendations to the court, and the enforceability of mediated agreements. Jeske, supra, at 674


The prevalence of mandatory mediation throughout the United States is growing and is concerning in the context of domestic violence. The requirement of state family courts that a victim of domestic violence mediate child custody with a spouse who is a batterer may be against the best interests of the child and victim parent. Mandatory mediation forecloses the choice of victims whether to mediate custody, unless the state statute provides an opt-out provision that is an exception for cases involving domestic violence. Id. at 673-74.

So, what makes what the Supreme Court of Montana did in Hendershott (and what the Montana legislature previously did) so revolutionary? Let’s take a brief look at some of the facts of the case. Heidi Hendershott obtained an order of protection against her husband, Jesse Westphal and later filed a petition for dissolution of their marriage and a parenting plan. Thereafter,

The District Court approved Heidi’s proposed parenting plan as an interim parenting plan and set a hearing on the order of protection and the parenting plan….The court also ordered that an independent parenting plan evaluation be conducted by Dr. Edward Trontel.

Heidi refused to meet with Jesse during Dr. Trontel’s evaluation, which Dr. Trontel claimed “perturbed” his examination process. Dr. Trontel ultimately opined that “there is no way to conclude, with absolute certainty, that serious endangerment is nonexistent. However, there is no empirical foundation to conclude with reasonable confidence that Mr. Westphal poses a serious danger to Ms. Westphal or her children.”

Subsequently, Heidi

underwent an evaluation by Dr. Christine Fiore, a Licensed Clinical Psychologist. Dr. Fiore opined that difficulty in Heidi’s marriage, with ongoing traumatic experiences, has resulted in post-traumatic stress disorder. Dr. Fiore explained that post-traumatic stress disorder is a diagnosis commonly found in women who experience ongoing emotional or other abuse in their relationships. Dr. Fiore further concluded that continued contact with Jesse would exacerbate Heidi’s symptoms.

Finally, Dr. Paul Silverman, a Licensed Clinical Psychologist

completed a parenting plan evaluation of Jesse, Heidi, and the children. Dr. Silverman opined that “[d]etermining whether Jesse was abusive during their marriage is extremely difficult and the truth may only be known by Jesse and Heidi.” Dr. Silverman did note that Heidi’s alleged abuses included constant put downs and rages and that Jesse would tell Heidi he owned her body and she should do what he wants her to do. However, Dr. Silverman concluded that these allegations, as well as other observations of Jesse’s behavior, led him to question whether abuse actually was occurring or if Heidi’s allegations were merely her own interpretations of Jesse’s behavior. Dr. Silverman noted that Jesse agreed he had not been a “Godly husband” and acted towards Heidi in a way that contributed to the end of their marriage. While Dr. Silverman did not find evidence of physical or sexual abuse, he found Jesse to be insensitive and intolerant of others, that he had difficulty managing his anger, and that he viewed the relationship in a traditional male-dominated manner. Dr. Silverman also noted Heidi was inhibited socially, had low self esteem, and suffered from stress and anxiety which caused physical symptoms.

In reliance upon Dr. Silverman’s conclusion, the district court, over Heidi’s objection, approved a final parenting plan that contained a mandatory mediation provision. Heidi’s appeal eventually reached the Supreme Court of Montana, which noted that pursuant to Montana Code Annotated 40-4-301(2), a

court may not authorize or permit continuation of mediated negotiations if the court has reason to suspect that one of the parties or a child of a party has been physically, sexually, or emotionally abused by the other party.

The Montana Supremes found that this section of the Montana Code trumped the court’s ability to order mediation and reversed, in the process noting two important things about the section. First, it noted that

“Reason to suspect” sets a minimal standard that the legislature expressly considered and included in the law. Section 40-4-301, MCA, was enacted in 1993….During the Senate Judiciary Committee’s discussion of the bill, Senator Halligan, the bill’s sponsor, stated the “reason to suspect” standard was used because it was lower than probable cause and consistent with doctor and teacher standards for investigating abuse.

Second, the court noted that

The Senate Judiciary Committee also added evidence of “emotional abuse” as a specific reason to prohibit court-ordered mediation….Senator Halligan explained that a reason to suspect emotional abuse should prohibit mediationdue to the significant difficulties in mediating a conflict where one person is intimidated by another….Given the plain language of the statute, together with its legislative history, it is clear the Legislature intended § 40-4-301(2), MCA, as an absolute bar to mediation where the court finds a reason to suspect abuse.

You really have to respect the actions of the Supreme Court of Montana and the Montana legislature. Rather than just rotely enacting and interpreting an abuse exception to mediation, it really appears that these bodies dug into the social science data on abuse and mediation and made sure to enact a strong exception that ensures that there won’t be mediation that perpetuates and is a product of a cycle of abuse.

Later in its opinion, the court cited Leigh Goodmark, Alternative Dispute Resolution and the Potential for Gender Bias, 39 Judges’ J. 21 (Spring 2000), for the proposition that “the basic rules, assumptions, and goals of mediation are undermined in those particular cases when the parties have a history of domestic violence.” In addition to providing excellent support for this point, I found that Professor Goodmark‘s article contained a passage that is especially applicable. She argues that

some studies estimate that over half of all cases referred for divorce and/or custody and visitation mediation involve issues of domestic violence. Frequently, however, those cases are not labeled “domestic violence” cases and mediation is deemed appropriate.

How many of the thousands of divorce-related custody disputes per year involve spousal abuse that the abused spouse can’t prove to the court’s satisfaction? And how many of those case proceed to mediation because the abused spouse can merely prove emotional and not physical or sexual abuse? Many states’ abuse exceptions to court-ordered mediation are based upon legal standards borrowed from other contexts. Montana’s exception is carefully based upon the social science data in the field. I hope that it serves as a model for other states in the future.

-Colin Miller

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1 Response to Exception(al) Opinion: Supreme Court of Montana Opinion Might Mean Montana Has Broadest Abuse Exception to Court-Ordered Mediation

  1. Pingback: Exceptional Opinion: Supreme Court of Montana Opinion Might Mean Montana Has Broadest Abuse Exception to Court-Ordered Mediation | Feminist Law Professors « openmissoula.org

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