Know the Laws: Montana
UPDATED December 11, 2015
This page includes information about custody that is specific to this state. There is also a page for general information that you may find helpful.
back to topHow will a judge make a decision about a parenting plan (custody)?
A judge is supposed to make a decision that is in the "best interests" of the child. According to MT law, when determining what is in the best interest of the child, the judge could look at:
- The wishes of the parents;
- The child’s preference for who s/he wants to live with;
- The relationship the child has with his/her parent(s), his/her siblings and any other person that might significantly affect the child’s best interest;
- The child’s adjustment to his/her home, school and community;
- The mental and physical health of all individuals involved;
- Any physical abuse or threat of physical abuse by either parent against the other parent or the child;
- Dependency on, or abuse of, drugs/alcohol on the part of either parent* - the judge will look at how the use of any chemical substance, legal or illegal, creates behavioral and/or health problems or how it endangers the parent's health, interpersonal relationships, or economic function;**
- The continuity and stability of care;
- The developmental needs of the child;
- Whether a parent has knowingly failed to pay birth-related costs that a parent is able to afford;
- Whether a parent has knowingly failed to financially support a child that a parent is able to support;
- Whether either parent continuously files for amendments to the parenting plan based on vengeful reasons – if so, the judge will consider any negative effect that these actions have on the child;
- Whether the child has frequent and continuing contact with both parents, which is considered to be in the child's best interests unless the court determines, after a hearing, that contact with a parent would be harmful to the child's best interests. In making that determination, the court will consider evidence of physical abuse or threat of physical abuse by one parent against the other parent or the child.
- Whether a parent or other person residing in that parent's household has been convicted of any of the following crimes (or possibly other crimes):
i. deliberate homicide,
ii. mitigated deliberate homicide,
iii. sexual assault,
iv. sexual intercourse without consent,
v. deviate sexual conduct with an animal,
vii. aggravated promotion of prostitution of a child,
viii. endangering the welfare of children,
ix. partner or family member assault, and
x. sexual abuse of children.*
If either parent is serving in the military, the court must consider all relevant parenting factors described above and cannot determine the best interest of the child based only on the parent’s military service.***
* R.C.M. § 40-4-212(1)
** R.C.M. § 53-24-103(4)
*** R.C.M. § 40-4-212(2)
back to topCan a parent who committed violence get custody or visitation?
Possibly, yes. While the judge will consider any evidence of physical abuse or threat of physical abuse by one parent against the other parent or the child,* it is possible that a parent who has committed violence will get custody or visitation since this is only one of many factors that a judge will consider.
It is recommended that you seek legal advice from a lawyer to assist you in a custody/visitation (parenting plan) case involving domestic violence issues. For information on how to find a lawyer, see our MT Finding a Lawyer page.
* R.C.M. § 40-4-212(1)(f)
back to topWhat happens if the other parent files a parenting plan action after being ordered to pay child support?
If you file a child support action against the non-custodial parent, and within the next 6 months, that parent files an action for a parenting plan, the judge is supposed to assume that his/her decision to file a parenting plan action is vengeful (done out of revenge). However, the non-custodial parent can offer evidence to try to convince the judge that s/he did not file to get revenge for being ordered to pay child support.*
* R.C.M. § 40-4-212(4)(a)
back to topIf a parenting plan order is already in place, how can I get it changed?
If you have a parenting plan order already in place, you can ask the original court that issued the order to make changes to it (modify it). Generally, you can only ask to have a final parenting plan order modified if there has been a substantial change in circumstances since the order was issued or there are facts that were unknown to the judge when the plan was issued. The judge must also believe that amendment you are seeking would be in the child's best interests.
Example: A few examples of substantial changes in circumstances might be if there are new allegations of abuse, if the other parent has begun using drugs or gets arrested for a crime. These are just some possible examples -- there could be many others.
In deciding what is in the child’s best interests, the judge may consider the following factors when deciding whether to modify the final parenting plan or not:
- Whether the parents agree to the proposed change to the parenting plan;
- Whether the child has been brought into the family of the petitioner with the consent of the parents;
- If the child is 14 years of age or older and wants the plan to be changed;
- Whether one parent changed or intends to change the child’s residence in a way that significantly affects the contact of the child with the other parent; and/or
- Whether one parent has willfully and consistently:
- Refused to allow the child to have any contact with the other parent; or
- Attempted to frustrate (make it difficult) or deny contact between the child and the other parent.* If a parent does either of these things, the judge will assume that the parent was not acting in the child’s best interests.**
Also, you can file an “objection” to the parenting plan if the other parent or anyone living with that parent gets convicted of any of the crimes listed in the end of How will a judge make a decision about a parenting plan (custody)?
After you file the objection, the other parent has 21 days to respond – if s/he doesn’t respond, his/her parenting rights are suspended until the judge says otherwise. If the parent does respond to the objection, then a hearing on the issue will be set within 30 days of the parent’s response.***
If a parent files to amend the parenting plan without first making a good faith effort to follow it or to use the dispute resolution method laid out in the plan, the judge will assume that the parent is acting in a vengeful or harmful manner. However, the non-custodial parent can offer evidence to try to convince the judge that s/he did not file to get revenge or harm the other parent. This does not apply to the objection explained above based on a criminal conviction.****
Modifying an order is often complicated, and as with all custody issues, we recommend that you talk to a lawyer about this. Go to our MT Finding a Lawyer
page for legal referrals.
* R.C.M. § 40-4-219(1)
** R.C.M. § 40-4-219(3)
*** R.C.M. § 40-4-219(8)
**** R.C.M. § 40-4-212(4)(b)
back to topIf I file for an amendment of the parenting plan, will I have to go to mediation?
Possibly, yes. A judge can order the parents to go through a dispute resolution process (i.e., mediation or counseling) to resolve any conflicts that there are over the amendment you requested. However, the judge cannot order mediation or counseling if there has been:
* R.C.M. § 40-4-219(9)
back to topIf my child was conceived from rape, can the offender get custodial rights or visitation?
Possibly not. If you were a victim of the crime called sexual intercourse without consent (resulting in the conception of your child) and the offender was convicted of this crime, the law says that the offender forfeits (gives up) all parental and custodial rights to the child if the provisions of the law regarding penalty enhancements were followed. To read the law about penalty enhacements (Mont. Code § 46–1–401), you can go to our MT Statutes page. If you are not sure if this applies to your situation, please talk to a lawyer who is familiar with custody laws in Montana. You can find referrals on our MT Finding a Lawyer page.
back to topWhere can I find more information on custody in Montana?
We hope the following links to outside sources may be helpful:
- The Montana Judicial Branch has court forms for amending and enforcing a parenting plan and provides a link to a booklet called "Introduction to Family Law in Montana" - please note, however, that this booklet says it was last revised in 2002.
- MontanaLawHelp.org provides several links to information related to family law with Montana-specific information.
Please note that WomensLaw.org is not affiliated with any of the above organizations can cannot vouch for the accuracy of any information contained on their websites.
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