Parenting-Plan Modification Requires Admissible Proof of Changed Circumstances; Judge’s Remote (Zoom) Appearance Is Not Structural/Plain Error Absent Prejudice

Introduction

Case: In re the Marriage of: Murphy, 2026 MT 48 (DA 25-0216)
Court: Supreme Court of Montana
Date: March 10, 2026
Parties: Melissa Bartkowski (f/k/a Melissa Murphy) (Appellant) and Graham Murphy (Appellee)

This appeal arises from a post-decree dispute over parenting time for A.M., the parties’ child. After the parties’ 2022 divorce and entry of a stipulated shared-parenting plan, Melissa sought an emergency interim plan and then a modification under Montana’s parenting-plan statutes after her older daughter (from a prior relationship) disclosed alleged sexual abuse by Graham occurring during the marriage. The District Court initially imposed supervised visitation on an interim basis, but after a show cause hearing it reinstated the original plan (unsupervised parenting time) while making only minor amendments (exchange location, counseling, and limits on recording/tracking).

The Supreme Court addressed two core questions: (1) whether the District Court erred in concluding the evidence was insufficient to find Graham posed a threat to A.M.’s safety (and thus insufficient to establish the “changed circumstances” required to modify the plan under § 40-4-219(1), MCA), and (2) whether the District Judge’s decision to preside remotely via Zoom (with the parties present in the courtroom) constituted reversible error when no objection was made.

Summary of the Opinion

The Montana Supreme Court affirmed. On Issue 1, it held the District Court did not clearly err in finding the evidentiary record insufficient to conclude—by a preponderance—that Graham abused Melissa’s older children or that he posed a risk to A.M., and therefore did not abuse its discretion in reinstating unsupervised parenting time under the original plan. On Issue 2, it held Melissa failed to preserve her procedural objection to the judge’s remote appearance and that the circumstances did not warrant plain-error review; the remote appearance was not a structural error and the record did not show unfairness, technical impairment, or prejudice.

Analysis

Precedents Cited

1) Standards for reviewing parenting-plan modification decisions

  • In re Whyte, 2012 MT 45, ¶ 14: Set the basic appellate framework—findings of fact reviewed for clear error; conclusions of law for correctness; if findings are not clearly erroneous, the parenting decision is reversed only for clear abuse of discretion (citing In re D'Alton).
  • In re C.J., 2016 MT 93, ¶¶ 12-13, 19: Provided the definition of clear error and abuse of discretion, emphasized the district court’s broad discretion in parenting matters, and cautioned against appellate reweighing of evidence or substituting the appellate court’s view for the trial court’s credibility determinations.
  • In re D'Alton, 2009 MT 184, ¶ 7: Embedded within the review standard, reinforcing the deference given once factual predicates are supported.

2) The “heavy burden” and the statutory gatekeeping of “changed circumstances”

  • In re Marriage of Oehlke, 2002 MT 79, ¶¶ 12, 17, 21: The opinion relies on Oehlke for three key points: (a) a parenting arrangement cannot be modified without first finding changed circumstances; (b) the moving party bears a “heavy burden of proof” under § 40-4-219, MCA; and (c) where evidence supports more than one conclusion, appellate courts do not second-guess credibility determinations.
  • Bessette v. Bessette, 2019 MT 35, ¶ 16: Reaffirmed the two-part statutory test under § 40-4-219(1), MCA: changed circumstances (new/unknown facts) and necessity to serve the child’s best interests.

3) Preservation, plain error, and structural error

  • In re Parenting of F.L.F.L.K., 2025 MT 41, ¶ 15: Used to reject unpreserved procedural challenges absent timely objection; even if preserved, procedural errors require a showing of substantial prejudice.
  • State v. Lawrence, 2016 MT 346, ¶ 9: Provided the test for plain-error review—reserved for rare cases involving fundamental constitutional rights and where nonreview risks manifest miscarriage of justice or undermines the integrity of the process.
  • State v. Van Kirk, 2001 MT 184, ¶¶ 38-39: Defined “structural error” as affecting the framework of the proceeding and being presumptively prejudicial/automatically reversible (quoting Arizona v. Fulminante, 499 U.S. 279, 310 (1991); and citing State v. LaMere, 2000 MT 45, ¶ 48).
  • Estate of Frazier v. Miller, 2021 MT 85, ¶¶ 12, 37-38: Supported two propositions: district courts possess broad discretion over trial administration; and Montana generally limits structural-error doctrine to criminal cases, making extension to this civil parenting context disfavored.

4) Remote participation and confrontation-related concerns

  • Bonamarte v. Bonamarte, 263 Mont. 170, 866 P.2d 1132 (1994): Discussed as a remote-testimony case where telephone testimony in dissolution was found erroneous; the current opinion distinguishes it because the issue there concerned the ability to confront/examine a remote witness.
  • City of Missoula v. Duane, 2015 MT 232, ¶¶ 20-21: Upheld remote testimony (Skype) and similarly focused on confrontation/examination concerns; again distinguished because here the judge—not the adverse witness—was remote, and the parties agreed to remote testimony for certain witnesses.

5) Trial administration discretion

  • Jarvenpaa v. Glacier Elec. Coop., 1998 MT 306, ¶ 12: Cited (via Estate of Frazier) to underscore broad district court discretion over trial management decisions—supporting the judge’s decision to proceed remotely due to weather and health.

6) Future modification remains available

  • In re A.M.B.-B., 2025 MT 270, 425 Mont. 79, 579 P.3d 989: Cited to emphasize § 40-4-219, MCA does not foreclose future proceedings if circumstances change—important in a record-limited case involving serious allegations.

Legal Reasoning

Issue 1: Why the evidence did not compel a “changed circumstances” finding based on danger to A.M.

The court’s analysis is driven by § 40-4-219(1), MCA, which requires: (1) changed circumstances based on facts arising after the prior plan or unknown at entry; and (2) that modification is necessary to serve the child’s best interests. In evaluating best interests, the court must consider the § 40-4-212, MCA factors, including “physical abuse or threat of physical abuse.” §§ 40-4-212(1)(f), 40-4-219(1)(a), MCA.

The Supreme Court did not minimize the gravity of sexual-abuse allegations; instead, it treated the case as an evidentiary and procedural posture problem. The District Court concluded Melissa did not meet the “heavy burden” to prove, by a preponderance, that abuse occurred and that it created a change in A.M.’s circumstances warranting further restrictions. Central to that conclusion:

  • Limited direct evidence. A.R.M. did not testify (for mental-health reasons). That left the court with direct testimony primarily from E.M. (alleging abuse) and Graham (denying it), plus indirect observations about A.R.M.’s distress. The District Court found no admissible evidence—beyond timing—linking Graham to the behaviors described.
  • Conflicting testimony and credibility. The Supreme Court applied In re Marriage of Oehlke and In re C.J.: when evidence supports more than one conclusion, appellate courts defer to the trial court’s resolution of conflicts and credibility.
  • Consideration of potential harm from the interim arrangement. The District Court noted evidence that the current restrictions and inconsistency were confusing for A.M. and had reduced contact with her half-sister, B.M. This supported the trial court’s cautious approach before imposing longer-term restrictions.

Orders of protection: why the existence of an order did not substitute for admissible evidence in this modification record

Melissa argued the District Court failed to adequately consider the existing order of protection. The Supreme Court’s response is best read as a record-and-evidence holding:

  • The District Court treated the protection-order proceeding as “a completely separate case with a different standard,” and limited testimony about what occurred there as hearsay.
  • Although the trial court acknowledged the protection order in its findings, the parties did not present admissible evidence from the protection-order hearing in the parenting-plan hearing record.
  • The Supreme Court noted the possibility of judicial notice (M. R. Evid. 202(b)(6), (c)) but emphasized that appellate review is constrained to the record (M. R. App. P. 8(1)) and presumed the District Court carefully considered the sparse evidence that was properly before it.

The practical takeaway is that a protection order may be highly relevant to best interests and safety concerns, but its existence does not automatically satisfy the moving party’s burden under § 40-4-219(1), MCA unless the modification record contains admissible evidence sufficient to support the necessary findings.

Issue 2: Why the judge’s Zoom appearance did not warrant reversal

Melissa’s challenge to the judge’s remote participation failed for three layered reasons:

  1. Nonpreservation. Under In re Parenting of F.L.F.L.K., a party must timely object. Even without prior notice, Melissa could have objected on the record or requested a continuance once the remote appearance was announced; she did not.
  2. No structural error in this civil context. The Court declined to extend structural-error doctrine beyond its usual criminal setting (citing Estate of Frazier v. Miller) and held Melissa did not show that remote judicial presence “affect[ed] the framework” of the proceeding as contemplated by State v. Van Kirk.
  3. No plain error showing of fundamental unfairness or compromised integrity. Applying State v. Lawrence, the Court found no record evidence that Zoom impaired the proceeding (no noted technical failures) or prevented real-time observation and assessment by the judge. The parties were physically present; key confrontation concerns in Bonamarte v. Bonamarte and City of Missoula v. Duane were not implicated by a remote judge where witnesses were subject to examination and the parties agreed to remote testimony for certain witnesses.

Impact

1) Evidentiary discipline in high-stakes parenting modifications

The decision reinforces that even allegations as serious as child sexual abuse must be proved in the modification proceeding with competent, admissible evidence sufficient to satisfy the statutory gateway of § 40-4-219(1), MCA. The “heavy burden” language from In re Marriage of Oehlke remains central. Practitioners should expect courts to require:

  • firsthand testimony where feasible, or legally admissible alternatives;
  • clear linkage between alleged misconduct and the child’s circumstances/safety;
  • a record developed for the parenting case—not merely references to parallel proceedings.

2) Relationship between protection orders and parenting-plan proceedings

Without holding that protection orders are irrelevant, the Court effectively cautions that parties cannot rely on a protection order’s existence to carry the day in a parenting modification unless the modification record provides a sound evidentiary basis for the statutory findings. The opinion also signals that litigants must think strategically about judicial notice, admissibility, and the scope of the record.

3) Normalization (within limits) of remote judicial administration in civil matters

The Court’s refusal to treat a judge’s remote appearance as structural error, and its emphasis on preservation and prejudice, provides a clear roadmap for future disputes about remote proceedings:

  • object promptly or request a continuance;
  • make a record of any claimed impairment (technology failures, inability to hear/see, inability to present evidence);
  • identify concrete prejudice rather than generalized fairness concerns.

Complex Concepts Simplified

  • “Changed circumstances” (§ 40-4-219(1), MCA): A required threshold finding. The court must identify new/previously unknown facts affecting the child before it can change the parenting plan. Disagreement with the existing plan is not enough.
  • “Preponderance of the evidence”: The civil proof standard—more likely than not. The District Court stated it lacked a factual basis to conclude the allegations were “more likely than not true” on the record presented.
  • “Clear error” vs. “abuse of discretion”: “Clear error” asks whether factual findings lack substantial evidence, reflect a misapprehension of evidence, or leave the appellate court firmly convinced a mistake occurred. “Abuse of discretion” asks whether the court acted arbitrarily or beyond reason. Parenting decisions receive substantial deference.
  • Preservation: To raise a procedural issue on appeal, a party typically must object in the trial court when the issue arises, giving the judge a chance to correct it.
  • Plain error: A rare safety valve allowing review of unpreserved claims that threaten fundamental fairness or the integrity of the judicial process.
  • Structural error: A category of errors (mostly in criminal cases) so fundamental that prejudice is presumed and reversal is automatic. The Court declined to classify remote judicial presence here as structural.
  • Judicial notice (M. R. Evid. 202): A mechanism for a court to recognize certain facts/records without formal proof. The opinion notes the concept but emphasizes the parties still must build an appropriate record.
  • M. R. Evid. 611(e): Reflects the general principle that witnesses are examined in the presence of parties. The Court treated this as satisfied because Melissa could see/hear/cross-examine the witnesses, and the remote-judge scenario does not itself defeat examination rights.

Conclusion

In re the Marriage of: Murphy, 2026 MT 48, consolidates two practical rules in Montana family-law procedure: (1) a party seeking to restrict parenting time based on abuse allegations must meet the “heavy burden” of proving changed circumstances with admissible evidence sufficient to support the statutory findings under § 40-4-219(1), MCA, and appellate courts will not reweigh credibility when the record supports multiple conclusions; and (2) a judge’s decision to preside remotely via two-way video in a civil parenting hearing is not structural error, and absent timely objection and a record showing prejudice or compromised fairness, appellate relief is unlikely.