Article Image
Montana Supreme Court Rules That Domestic Abuse Victims Can Avoid State-Legislated Mediation for Developing Parenting Plan with Former Abuser

Monday, April, 29, 2013


The Montana Supreme Court has recently ruled that victims of domestic violence will no longer be compelled into mediation to settle custody disputes in a divorce.  The legislation that was appealed is part of the state’s attempt to require parents involved in divorce disputes to develop a “parenting plan” through mediation.  While in many cases, the legislation has been successful—in situations involving divorces that have followed domestic abuse, sitting across from your abuser is less than inviting and can cause the process of mediation to be an emotionally traumatizing situation. 

The appeal for exceptions to the mediation requirement, known as Hendershott v. Westphal, was taken to Montana’s Supreme Court and was granted.  "Parents and children are going to be safer because of this decision," said Monte Jewell, the Missoula attorney responsible for submitting the appeal.  He represented Heidi Hendershott, who—as an emotional abuse victim of her former husband, Jess Westphal—did not want to face her former abuser in the intimate setting of mediation. 

After examining the laws requiring mediation, the Montana Supreme Court found "an absolute bar to mediation" for cases in which physical, sexual or emotional abuse is suspected.  Experts agree that it is important that the court used the word “suspected,” and that it is important that a case involving emotional abuse rather than physical abuse was granted an exception.  In doing so, the court set the bar in a place that acknowledges the fact that emotional abuse often turns into physical abuse once one partner attempts to leave the marriage or relationship. 

Cindy Weese, the Executive Direcotr of Missoula’s YWCA, stated, "It's always something we're worried about when working with victims of domestic violence. Emotional and psychological abuse is very detrimental and isn't covered in the parenting plan statute."  In such, Weese announced that she was “absolutely thrilled” that the Montana Supreme Court took this fact into consideration in its decision.