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Know the Laws: Montana

UPDATED October 6, 2014

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Custody and kidnapping are complicated and it is important to try to find an experienced lawyer to help you with your case. The terms used on this page are defined generally, and may have different meanings in your state.  Please check with a lawyer for advice about your specific situation.  For legal referrals, go to our MT Finding a Lawyer page.

When the other parent wants to take your children out of the state

back to topI am afraid the other parent will take our children out of the state. What can I do?

If you are afraid that the other parent will take your children away without your consent, you might be able to ask the judge to issue an emergency custody order, which most states provide.  You may want to ask the judge to include in the order that the other parent cannot take the children out of the state, or that the other parent may only have supervised visitation.  Please see Can I get temporary emergency custody? for more information as to what factors a judge might consider when deciding whether or not to grant emergency custody.  You can also go to the Custody section of your state for more information. 

Depending on your state's restraining order laws, a threat to take your child and leave the state might also possibly qualify you for a restraining order.  You can read more about your state's laws on our Restraining Orders page.

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back to topIf the other parent takes my children out of state, can s/he be charged with kidnapping?

The answer to this question is very complicated and may depend on many different factors.  The laws on parental kidnapping (also known as custodial interference) are different in each state.  In some states, it may be against the law to take children out of state only if it violates a custody order or if there is an active custody case pending.  In other states, the act of taking the children out of state itself may not be illegal unless the parent conceals (hides) the children from the other parent.  Other factors that may be considered are whether the parents are married (and considered to have equal parental rights) or, in the case of unmarried parents, whether the father's paternity has been legally established.  Also, there could be a big difference if the other parent is planning a brief visit out of state, a long absence, or if s/he is planning on moving out of state for a long time.  We strongly suggest talking to a lawyer who specializes in custody matters and/or a prosecutor to find out if the other parent's actions are legal or not.  See our Finding a Lawyer page for information about resources in your state.

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back to topHow can I keep the other parent from taking my children out of the country?

If you are in the middle of a custody case in court, you may be able to ask the judge to seize (hold onto) the child's passport.  If there is no ongoing case, perhaps you may even be able to file for a restraining order if you qualify and ask the judge to hold the child's passport as part of that case.

If the child does not have a passport but you fear the other parent may apply for one for the child, the State Department has a program called the Children's Passport Issuance Alert Program.  The program is explained as follows:

"The Children’s Passport Issuance Alert Program (CPIAP) is one of the Department’s most important tools for preventing international parental child abduction.  The program allows parents to register their U.S. citizen children under the age of 18 in the Department’s Passport Lookout System.  If a passport application is submitted for a child who is registered in CPIAP, the Department contacts and alerts the parent or parents.  The passport lookout system gives all U.S. passport agencies as well as U.S. embassies and consulates abroad an alert on a child’s name if a parent or guardian registers an objection to passport issuance for his or her child.  This procedure provides parents advance warning of possible plans for international travel with the child."

See the State Department's Child Abduction Prevention page for more information.

To enter your child into the program, you will have to complete the Entry Request Form, provide proof of your identity (a photocopy of your driver's license or other ID card), and submit a photocopy of your child's birth certificate or other documentation to show that you are the child's parent or legal guardian.

Mail, fax or email these items to Passport Services, Charleston Passport Center:

U.S. Department of State
Passport Services, Charleston Passport Center
Attn: Children's Passport Issuance Alert Program
1269 Holland Street, Building D
Charleston, SC 29405

E-mail: ChildrensPassports@state.gov
Phone: 843-202-3863
Fax: 843-746-1827

Note: If your child has dual citizenship, then s/he may be able to travel out of the country on the passport of the foreign country.  The State Department cannot regulate passports from a different country, so you may want to contact that country's embassy or consulate to ask if they have a similar program.  You will find contact information for embassies and consulates at http://www.travel.state.gov under U.S. Embassies & Consulates on the top right-hand corner of the screen.

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When you want to take your children out of the state

back to topCan I take my children out of the state?

The answer to this question is very complicated and may depend on many different factors.  We strongly suggest talking to a lawyer for specific legal advice on your situation.  The laws on parental kidnapping (also known as custodial interference) are different in each state.  In some states, it may be against the law to take children out of state only if it violates a custody order or if there is an active custody case pending.  In other states, the act of taking the children out of state itself may not be illegal unless the parent conceals (hides) the children from the other parent.  Other factors that may be considered are whether the parents are married (and considered to have equal parental rights) or, in the case of unmarried parents, whether the father's paternity has been legally established.  Additionally, there may be a big difference between if you are planning a short trip out of state, a long absence from the state, or if you are intended to move out of state long-term.

Again, please talk to a lawyer in the state you are thinking of leaving from who understands custody laws and criminal laws to determine what your state's laws are and how they might apply to your situation.  Please click on Finding a Lawyer.

If you have been charged or fear being charged with parental kidnapping, please let us know and we will try to get you in touch with an organization that can help you.

Depending on your situation, you may also want to apply for temporary emergency custody. Please see Can I get temporary emergency custody? for more information.

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back to topCan I get temporary emergency custody?

If you are applying in a state where you and the child have recently arrived:
Under a law called the UCCJEA, you can apply for temporary emergency custody in a state that is NOT the "home state" of the child if the child is present in the state and:

  1. the child has been abandoned; or
  2. it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.*
Note: Every U.S. state follows the UCCJEA except for MA.**  If you live in MA, which follows a different law called the UCCJA, emergency custody may only be granted if the child has been abandoned or the child (not a parent or sibling) is subjected to or threatened with mistreatment or abuse.

We strongly recommend that you talk to a lawyer who specializes in domestic violence and custody issues about your situation before leaving the state if at all possible.  To find one in your area, please click the Where to Find Help tab at the top of this page.

If you are granted emergency custody, the order would likely be what is called an "ex parte" order since the other parent would not be present in court.  Ex parte orders are generally good for a short period of time until a return court date where both parents are present in court before the judge.  Note: If a custody order already exists in State A and you are getting an emergency custody order in State B, the emergency order may generally only last for enough time to allow you to go back to State A and change that existing order.*** 

If you are applying in the child's "home state":

You may request temporary custody (or emergency custody) if you are filing for custody in the child's "home state," which is generally the state where the child has lived for the past 6 months consecutively (in a row).  Depending on your state, you may be able to request temporary emergency custody as part of a regular custody petition or there may be additional forms you need to file.  You may or may not have to prove that the child is in danger in order to get emergency custody.  However, you still may not be able to take your child out of the state even if you have temporary custody - it may depend on what the order says.  If you know you are planning to leave the state, you might want to ask the judge to include permission for you to leave the state in the custody order.  It is up to the judge to decide.

* UCCJEA § 204(a)
** current as of March 2013
*** UCCJEA § 204(c)

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back to topThe abuser is threatening to charge me with parental kidnapping if I leave the state. What can I do?

If you have not left the state yet or you have left but have not been charged with kidnapping, we strongly suggest that you talk to an attorney who specializes in custody laws in your state.  Hopefully, the attorney can advise you on whether or not you are in danger of committing parental kidnapping if you leave and what possible court actions you can take before leaving to leave legally (such as applying for custody perhaps).  If you have left, you can ask about what steps you can take to try to avoid being charged with parental kidnapping. Go to our Finding a Lawyer page for more info.

In some states, if you are criminally charged but you are fleeing a pattern of domestic violence or to protect a child, then you may have what is called an "affirmative defense" to the charge of parental kidnapping but this can depend on your state's laws and your specific situation. If you have enough evidence to prove this defense, you might be able to avoid being convicted - but it may not prevent you from being arrested and charged with the crime and you can still have suffer all of the consequences that could come with being arrested such as losing custody.  If you are fleeing domestic violence or to protect your children, it may be a good idea to collect evidence of the abuse before you leave, if at all possible, depending on your situation.  Evidence of domestic violence or child abuse may include proof of calls to 911, police reports, medical reports, criminal convictions of the batterer, proof that you have seen a counselor and tried to get help, testimony from family, friends, or other witnesses, or anything that is evidence of an ongoing abusive relationship.  Note: In some states, there are specific conditions you need to meet BEFORE or after you flee to take advantage of these legal protections.  You can ask an attorney in the state you left from for this information.

If you do take your kids out of the state and are charged with kidnapping, you or your lawyer can contact us and we can try to refer you to experts who can assist you.  Be sure to tell us that you have been charged with the crime of kidnapping or custodial interference and from what state.

Again, we strongly recommend that you talk to a lawyer who understands domestic violence, custody and your state's criminal laws before you make a decision.  A lawyer can help you put together the necessary evidence if you must leave the state.

Depending on your situation, you may also want to apply for temporary emergency custody. Please see Can I get temporary emergency custody?

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back to topIf there is a custody order in place, can I take my children out of the state?

The answer to this question is complicated and may depend on many factors such as whether leaving the state violates the other parent's visitation time, whether the custody order addresses leaving the state, whether the custody case is ongoing, how long you will be away, etc.  To find out how these factors may affect your ability to leave the state with your child, we strongly suggest showing your custody order to an attorney who specializes in custody for specific advice.  Go to our Finding a Lawyer page for legal referrals. 

Generally, if leaving the state would interfere with the other parent's visitation with the child or violate any other term of your custody order, you may be at risk of facing criminal parental kidnapping (custodial interference) charges in addition to any civil contempt charges for violating a custody order.  Being charged with either may put you at risk of losing custody as well as other penalties.  Also, often times when a custody case is pending (ongoing), both parents may be prohibited from removing the child from the state (jurisdiction). 

If leaving the state would violate your custody order, you may likely need to file in court to ask the judge to modify the order to allow for your child to leave the state. 

If the other parent agrees to allow you to leave the state in violation of the custody order, you may want to ask an attorney whether getting written, notarized permission from the other parent would be enough to protect you from a later accusation of parental kidnapping or violation of the court order or not.  There may be other protections in your state that allow you to take your children out of state, even if the custody order doesn't appear to permit it.

Again, please talk to a lawyer in your state who is familiar with custody and domestic violence.

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back to topIf there is some court action involving my children, can I take them out of the state?

If there is some court action involving the children (divorce, custody, visitation, child support, etc.) that is in process, then it may be illegal for you to take the children out of state, even temporarily, without permission from the judge and/or consent of the other parent.  If you have a current court action of this sort, then you may want to ask the judge or your attorney if you can take the children out of the state.

Also, keep in mind that once a court action is started in one state, then that state court generally has jurisdiction (power) over the case until it is finished.  Sometimes you can move the case to another state, but it is often really hard to do.  If your case is finished and you want to try to change a final custody order in a different state, go to our Changing a final custody order page for more information. 

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