Below is a description of the typical structure of hearings in a DN case.

Opening statement

Opening statements are very rare in Montana DN cases. However, they can provide the attorneys and the court appointed special advocate, or CASA, or guardian ad litem, or GAL, with an opportunity to lay out their case for the court before any evidence is presented. In essence, an opening statement summarizes what a party believes the evidence will show during the hearing.

At the beginning of a hearing in Montana, the judge usually asks the attorneys to tell the court what the hearing is about and address any preliminary matters. This process generally serves as the opening statement.

State's case

The state presents its case first, since it bears the burden of proof. If the state fails to provide sufficient evidence during this initial phase, the hearing proceeds no further. During this phase of a contested hearing, you will likely be called to testify as a QEW to provide your expert testimony. The state's lawyer — a county attorney, deputy county attorney or assistant attorney general — questions their witnesses through direct testimony.

During direct examination, attorneys must ask their witnesses open-ended questions, generally beginning with "what," "when," "why," "where," and "how." During direct examination, an attorney should not ask leading questions that give the witness hints about what they want the witness to say. The state's attorney will not be allowed to provide you with suggestions about what information they want. Thus, you and the attorney need to prepare for the testimony well before the hearing. As a general rule, attorneys should not ask questions if they don't know what the answer will be.

Direct examination is followed by cross-examination by the other attorneys. During cross-examination, attorneys can ask leading questions. Classic leading questions could ask for a "yes" or "no" answer or begin with something like, "Isn't it true that ...?" These are perfectly legitimate questions when cross-examining a witness.

Parents' case

In a contested hearing, the parents' attorneys present their witnesses. The other attorneys are allowed to cross-examine these witnesses. Parents' counsel could offer another QEW with a different opinion than the state's QEW. However, this is unusual in Montana. Under these circumstances, the case could become a battle of experts. The judge would have to decide which expert they believed was correct.

CASA or GAL participation

A CASA is a specially trained volunteer appointed by the court to advocate for the child's best interest. They are independent from CFSD and provide volunteer services through a local non-profit office. If a CASA volunteer is unavailable, the judge should appoint an attorney or another qualified person as the child's GAL. GALs are also best-interest advocates for the child. MCA 41-3-112.

The judge will also assign an attorney to represent the child in a DN case. A 2023 law provides lawyers for children in all DN cases in Montana. MCA 41-3-425(2)(b). The child's attorney represents the child as their client, not as a best-interests advocate, like a CASA or GAL.

The participation of CASAs or GALs in a DN case will likely differ depending on where you are in Montana and the judge you appear before. The focus of a CASA or GAL is on the child's best interest. Their position in a hearing could be the same or different from that of the state or the child's attorney.

Guardians ad litem are often also attorneys. In Yellowstone County, for instance, an attorney/GAL is generally appointed as a best-interest advocate for the child. These attorney/GALs may present evidence through direct testimony and cross-examine other witnesses. They will be expected to understand and abide by the laws and rules applicable to all attorneys in the case.

A CASA or non-attorney GAL may not have an attorney to represent them in a DN case. Under those circumstances, the judge will generally give the CASA or GAL some leeway when presenting evidence or cross-examining witnesses, since they are not professionals. The CASA or GAL can ask questions, including questions for the QEW.

The CASA and GAL will be able to express their opinion about the child's best interest at some point during the hearings and may also be able to provide written or oral recommendations to the Court.

Rebuttal

If new information is revealed during another party's case, the state may present further evidence to refute or counter that new evidence. The state may re-call previous witnesses, including the QEW. They may also call a new witness during rebuttal. Sometimes cases do not go as planned. Rebuttal testimony is a means of addressing this issue.

Sequestering witnesses

During a hearing, witnesses may be sequestered. This means that witnesses must be outside the courtroom when other witnesses are testifying. After being questioned, sequestered witnesses should not discuss their testimony with other potential witnesses. The idea is to prevent witnesses from adjusting their testimony based on what other witnesses say.

There are good reasons for a QEW to be in the courtroom and not sequestered while others testify. Evidence presented during a hearing could affect the opinion testimony of a QEW. A QEW may be asked their opinion about whether the evidence presented by other parties affects their opinion. Therefore, the state's attorney will likely request the court to allow the QEW to be present during the hearing. The QEW may or may not be sequestered depending on the case, judge and local practices.

Closing argument

A closing argument is an opportunity for the attorneys to argue why the evidence presented during the hearing supports their client's position. The attorneys can summarize, and they can also argue why the evidence supports their version of the case. Whether a closing argument occurs depends on your judge and jurisdiction. Based on observation, these arguments occur in about half of the DN cases in Montana.

Decision

There are no jury trials in DN cases held in Montana. Thus, the judge will decide the issues during contested hearings. The court may announce its decision from the bench at the end of a hearing or later when the case is taken "under advisement." When judges take a matter under advisement, they consider the evidence and then render an opinion after the hearing. It could take several days or weeks for a written opinion to be issued. The parties find out what the decision is by reviewing that opinion. Written opinions become part of the court record.

Keep Learning

Watch the following video of a mock trial with Edie Adams acting as the QEW. The video is about 45 minutes long. Please note the information provided in this example trial has been completely made up for the purpose of this training and does not represent a real trial or real people.