Montana Child Custody Laws

Montana Child Custody

Here’s what to know if you’re engaged in a child custody action in Montana.

What are the Types of Child Custody in Montana?

Montana child custody laws do not use “custody” and “visitation” and instead refer to these parts of custody under the general term “parenting.”

The law requires both parents to provide the court with a parenting plan.  When developing a plan, parents must decide whether one or both parents will make major decisions regarding the child’s welfare. This refers to subjects such as where a child will go to school, religious affiliation and instruction, and non-emergency medical care, and is often referred to as legal custody in other states.

Courts prefer joint custody since the child generally benefits most from ongoing interactions with both parents.

However, if joint decision-making isn’t feasible, then only one parent will make these decisions. This might be when the other parent’s judgment is compromised, such as untreated drug addiction, domestic abuse, or criminal activities.

The day-to-day decisions regarding the child’s care are the responsibility of the parent the child is residing with at the time. Either parent may make emergency decisions affecting the child’s safety or health.

A second major parenting issue that must be determined is where the child will live. Typically, a child will reside with one parent while the other has visitation rights.  Every case is different, so while one situation may mean a child spends significant time with both parents, in other cases, especially when geographical issues are present, is to have the child stay with one parent during the school year and the other during the summer.

Sometimes, visitation is problematic and not in the child’s best interests.  This may be the case when there is evidence of parental abuse, neglect, or a history of domestic violence.  Visitation may not be completely denied to the abusive parent, but the court may order supervised visitation only.  That means a third party will be present during the visits or take place in a court-approved facility where trained personnel can oversee the visit.

When it can be proven a parent is unfit (i.e., cases involving domestic violence or sexual abuse) the court can terminate a parent’s rights, and the parent-child relationship no longer exists.

While a divorce is taking place, a judge can also order an Interim Parenting Plan to be put in place.  These usually only cover the duration of the divorce proceeding and are replaced when the divorce is finalized.  Orders may stay the same or change depending on what is best for the child.

Also, if you have been married to your spouse for several years and need temporary financial assistance, you may pursue a Temporary Maintenance Order.  If child support has not been established already and you need money from the other parent to take care of the children while your dissolution is pending, you can file a Motion for Temporary Child Support.

Read More:  How to File for Divorce in Montana 

Determining Child Custody in Montana

In Montana, the law presumes that “frequent and continuing contact” with both parents is best for the children unless it is proven to the court that this is not true.

To assist judges in determining the best custody arrangement for a child, they must consider several factors to help them reach a fair and just decision.

Some of those factors are:

  • The parent’s wishes
  • The child’s wishes, if they are old and mature enough to provide valid input
  • Each parent’s relationship with the child
  • The child’s relationship with siblings
  • The parents and child’s mental and physical health
  • The child’s adjustment to home, school, and community
  • A parent’s physical abuse or threat of such abuse against the other parent or the child
  • Either parent’s history of chemical abuse or dependency
  • The child’s developmental needs
  • Each parent’s ability to provide stability and continuity of care to the child
  • Whether the child has frequent and continuing contact with both parents
  • Any other factor the court deems relevant.

Courts try to avoid having children testify in open court. Under Montana law, a judge can interview children in the judge’s chambers to find out their preferences. There must be a record made of the interview, which a court reporter typically does.

The court can appoint a professional, like a child therapist or parenting evaluator, to meet with the children to determine their preferences.

Judges can also appoint a guardian ad litem to represent the children’s interests. This person advocates for the child’s best interest and is tasked with investigating the family situation and advising the court on what would be in the child’s best interests.

What happens when the parents are not married?

Montana presumes that a child born during the marriage is the biological child of the husband.  When parents are not married and one of the parties questions paternity, you will need to establish paternity before getting a parenting plan. This can be done through the court or administrative judgment, decree, or order that can establish paternity.  DNA testing is often used to establish paternity.

Read More:  The Psychological Effects of Divorce on Children (and How to Help Them Cope)

What is Montana’s Best Interests of the Child Standard?

Montana law states that the court will decide parenting arrangements based on what it believes are the “best interests of the child.”  All other factors are secondary to ensuring the child’s best possible and safest outcome.  Courts use the factors listed above to reach a best interests decision.

What to Know About Parenting Plans

Montana courts require parents to create parenting plans as part of the custody process.  Parenting plans are detailed instructions about each child’s physical and legal custody.  While courts prefer that parents develop a plan that both can agree on, a judge is often required to step in and make final decisions based on the child’s best interests instead.

Parents may retain a mediator or a family law attorney to help them draft a plan.  At a minimum, plans should contain the following:

  • Physical custody details, including the number of overnight visits for each parent.
  • Legal custody and how those responsibilities are allocated between parents.
  • Holiday and school break schedules
  • Vacation and travel approval and advance notifications
  • How will a child communicate with both parents
  • How is communication between parents handled?
  • Contact with other family members and friends
  • How are tuition, medical costs, school activities, hobbies, and recreational activities expenses handled?
  • Child support payment amounts and recourse if a parent falls behind.
  • The manner of exchanging children, including when, where, and time of day
  • Transporting children for visitation and other necessary movements
  • Access to records and information
  • Children’s use of technology and online activities
  • How to address child discipline and mental health issues
  • Guidelines when a new partner is involved
  • Grooming and dress guidelines (extreme haircuts, make-up, etc.)
  • Drinking or drug use in the presence of the children

Parenting plans must also include a provision requiring both parties to update the court with changes to the following information :

  • Your Social Security number
  • Your residential and mailing addresses
  • Your telephone number
  • Your driver’s license number
  • Your employer’s name, address, and telephone number
  • If the children are covered by a health or medical insurance plan, the name of the plan, the policy identification number, and the names of the persons covered
  • If the children are not covered, information about the availability of coverage through the party’s employer

If a parent violates a plan after it is put in place, a judge may find that parent in contempt of court by not following the order.  That could result in penalties, fines, court costs, and in some cases, a stay in jail.

The offending parent can be subject to arrest and a fine of up to $500 or imprisonment in the county jail.

Read More:  How to Find Hidden Assets in a Divorce

How Do I Modify a Montana Custody or Visitation Order?

Either parent can modify parenting plans.  To start the process, you will need to petition the court to implement the changes you’re seeking.

You’ll need to explain why a modification is needed when you file.  The change must be significant, such as with a health issue, relocation out of the area, or other similar life events.  The change must also be justified as being in the child’s best interests.

The court will look at the same factors used in making an original determination of the best interests of the child. The statute also provides some additional things for the court to consider, including:

  • Whether the parents agree on the modification
  • If one of the parents has hindered contact between the child and the other parent
  • If a parent has changed or intends to change the child’s residence in such a way that it would significantly affect the child’s contact with the other parent
  • Whether the child is 14 or older and wants the modification.

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Montana Child Custody FAQs

What are the laws concerning a move related to custody?

A parent must give the other parent 30 days’ written notice before making any move that will “significantly affect” the other parent’s contact with the children.

The notice gives the other parent time to ask the court to change the residential schedule. If you move to another state with your children without giving written notice to the other parent or getting the other parent’s consent, you may be charged with “aggravated visitation interference.” That could result in contempt of court charges or being fined up to $1000 and imprisoned up to 18 months.

Can a child refuse visitation in Montana?

Anyone under 18 is considered a minor. As a minor, a child can’t refuse to visit with a parent.  However, every issue that arises in a parent-child relationship is subject to judicial review. So if the child’s refusal to spend time with a parent is brought to the court’s attention, a judge can determine whether there’s a legitimate basis for that refusal.

Do the state of Montana courts have the right to hire an attorney or Guardian Ad Litem to represent the child?

Montana has statutory authority to appoint a guardian ad litem or attorney to represent the child in a custody case. This person advocates for the child’s best interest and is tasked with investigating the family situation and advising the court on what custody situation would be in the child’s best interests.

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