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Montana: Custodia

Custodia

How the custody process works

How 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 Montana law, when determining what is in the best interest of the child, the judge could look at:

  1. the wishes of the parents;
  2. the child’s preference for who s/he wants to live with;
  3. the relationship the child has with his/her parents, siblings, and any other person that might significantly affect the child’s best interest;
  4. the child’s adjustment to his/her home, school and community;
  5. the mental and physical health of all individuals involved;
  6. any physical abuse or threat of physical abuse by either parent against the other parent or the child;
  7. dependency on, or abuse of, drugs/alcohol on the part of either parent;1 in this case, 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;2
  8. the continuity and stability of care;
  9. the developmental needs of the child;
  10. whether a parent has knowingly failed to pay birth-related costs that a parent is able to afford;
  11. whether a parent has knowingly failed to financially support a child that a parent is able to support;
  12. 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;
  13. 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 judge will consider evidence of physical abuse or threat of physical abuse by one parent against the other parent or the child; and
  14. whether a parent or a person living in that parent’s household has been convicted of any of the following crimes, or possibly other crimes:

Note: If either parent is serving in the military, the judge 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.3

1 R.C.M. §§ 40-4-212(1); 40-4-219(8)(b)
2 R.C.M. § 53-24-103(4)
3 R.C.M. § 40-4-212(2)

What happens if the other parent files a parenting plan action after I file for child support?

If you file a child support action against the non-custodial parent, and within the next six 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 done out of revenge (“vengeful”). When deciding custody, the judge should consider this. However, the non-custodial parent can offer evidence to try to convince the judge that s/he was not motivated by revenge when s/he filed the action.1

1 R.C.M. § 40-4-212(4)(a)

Who can get custody or visitation

Can a parent who committed violence get custody or visitation?

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,1 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.

In addition, if a custody order is already in place, and the other parent or anyone living with that parent gets convicted of any of the following crimes, you can file an “objection” to the parenting plan to change it:

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.2

It is recommended that you seek legal advice from a lawyer to assist you in a custody/visitation case involving domestic violence issues. For information on how to find a lawyer, see our MT Finding a Lawyer page.

1 R.C.M. § 40-4-212(1)(f)
2 R.C.M. § 40-4-219(8)

If my child was conceived from rape, can the offender get custodial rights or visitation?

If your child was conceived due to rape or sexual assault, either of the following could be a reason that the offender loses parental rights:

  • If the offender gets convicted of sexual intercourse without consent, the offender automatically loses all parental and custodial rights, assuming that certain procedures were followed in the criminal case;1 or
  • If the offender gets convicted of any felony in which sexual intercourse occurred, a petition can be filed for the offender’s parental rights to be terminated. If the offender was a minor at the time the felony was committed and was adjudicated a “delinquent youth” based on the crime, the same standard applies.2 Generally, the county attorney, attorney general, or an attorney hired by the county would be the one to file the petition to terminate the offender’s rights, not the victimized parent.3

1 R.C.M. §§ 45-5-503(8); 46-1-401
2 R.C.M. § 41-3-609(1)(c)
3 R.C.M. § ​41-3-422(2)

If my parental rights were terminated, can I ever get my rights back?

If your parental rights were terminated, you or your child can file a petition in court to get back (reinstate) your rights if all of the following are true:

  1. a judge decided (“adjudicated”) your child was a “youth in need of care;”
  2. your parental rights were terminated in a Montana court case;
  3. your child has not “achieved” the permanency plan that was set for him/her or the permanency plan has not been continuously followed (“sustained”); and
  4. two years or more have passed since you got the final order terminating your parental rights.1

If the judge believes that reinstating your parental rights might be in your child’s best interests, the judge will set a hearing date. At that hearing, you or your child, whichever of you filed the petition, would have to prove:

  • the four factors listed above; and
  • that it’s in your child’s best interest to have your rights reinstated. When deciding what’s in your child’s “best interests,” the judge will consider whether or not:
  • you are a fit parent;
  • you fixed (remedied) the negative issues (deficiencies) noted in the court record from the termination case and the termination order;
  • your child can give his/her preference;
  • reinstating your parental rights poses a risk to your child’s health, welfare, or safety;
  • reinstating your parental rights would be so good (beneficial) for your child that it outweighs the potential lack of permanency for him/her; and
  • there are other important changes in circumstances that call for reinstating your parental rights.

If your child filed the petition to reinstate your parental rights, s/he has the right to be represented by a lawyer.3

1 MT ST § 41-3-615(1)
2 MT ST § 41-3-615(4)(a), (5), (7)
3 MT ST § 41-3-615(3)(a)

After a custody order is in place

If I file for an amendment of the parenting plan, will I have to go to mediation?

A judge can order the parents to go through mediation or counseling (“dispute resolution process”) to resolve any conflicts regarding the amendment a parent requests. However, the judge cannot order mediation or counseling if:

1 R.C.M. § 40-4-219(9)

How can I change a final custody order? What effect could a criminal conviction have?

Filing a motion to amend
If you have a parenting plan order already in place, either parent can file a motion to amend the order to make changes to it. Generally, you can only ask to have a final parenting plan order amended if:

  • the amendment is necessary to serve the best interest of the child; and
  • there is a change in the circumstances of the child that is based upon:
    • facts that have come up since the prior plan; or
    • facts that were unknown to the judge at the time the prior plan was ordered.1

When considering how a proposed change will affect the child, the judge will consider:

  • the potential impact of the change on the factors listed in How will a judge make a decision about a parenting plan (custody)?; and
  • one or more of the following:
    • whether the parents agree to the proposed change to the parenting plan;
    • whether the child has been included (integrated) in the family of the petitioner with the consent of the parents;
    • whether the child wants the proposed change - but this only will be considered when the child is 14 years of age or older; or
    • whether one parent has willfully and consistently:
      • refused to allow the child to have any contact with the other parent; or
      • attempted to deny contact between the child and the other parent or make contact difficult.1 If a parent does either of these things, the judge will assume that the parent was not acting in the child’s best interests.2

Note: 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 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” option explained below.3

Filing an objection
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 following crimes:

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.4

1 R.C.M. § 40-4-219(1)(a)
2 R.C.M. § 40-4-219(3)
3 R.C.M. § 40-4-212(4)(b)
4 R.C.M. § 40-4-219(8)

What steps do I have to take if I want to relocate with my child?

If you want to change your child’s residence, you have to provide written notice to the other parent unless the final parenting plan specifically says you do not have to.1

If the change in residence will significantly affect the child’s contact with the other parent, then you have to file a motion for amendment of the residential schedule and a proposed revised residential schedule in court. The motion must be served personally or by certified mail on the other parent and to the parent’s attorney at least 30 days before the proposed change in residence. The notice must include this statement: “The relocation of the child may be permitted and the proposed revised residential schedule may be ordered by the court without further proceedings unless within 21 days you file a response and alternate revised residential schedule with the court and serve your response on the person proposing the move and all other persons entitled by the court order to residential time or visitation with the child.”2

The other parent then has 21 days to file a response in court. If the other parent objects to the proposed revised residential schedule, s/he has to include an alternate proposed revised residential schedule with the response. Then the judge would hold a hearing and consider specific factors to decide whether or not to allow the move.3

If the other parent doesn’t file a response within the 21-day period, then the law will treat it as if the other parent agrees with the move and it’s OK for you to relocate.4

The Montana Courts website has additional information on the steps for filing a notice of intent to move.

1 R.C.M. § 40-4-217(1)
2 R.C.M. § 40-4-217(2)
3 R.C.M. § 40-4-217(3)
4 R.C.M. § 40-4-217(4)

If a parent wants to relocate with the child, what factors will a judge consider?

If one parent has changed or intends to change the child’s residence in a manner that significantly affects the child’s contact with the other parent, the just must consider the following factors when deciding whether or not to allow the relocation:

  • how easy or hard it will be to keep the relationship between the non-relocating parent and the child through visitation arrangements, considering the logistics and financial circumstances of the parties;
  • the reasons of each parent for wanting or opposing the change of residence;
  • whether the relocating parent has shown a willingness to promote the relationship between the child and the non-relocating parent;
  • whether reasonable alternatives to the proposed change of residence are available to the parent seeking to relocate.
  • the factors listed in How will a judge make a decision about a parenting plan (custody)? and the potential impact of the relocation on those factors;
  • whether the parents agree to the proposed change;
  • whether the child has been included (integrated) in the family of the petitioner with the consent of the parents;
  • whether the child wants the proposed change - but this only will be considered when the child is 14 years of age or older; or
  • whether one parent has willfully and consistently:
    • refused to allow the child to have any contact with the other parent; or
    • attempted to deny contact between the child and the other parent or make contact difficult. If a parent does either of these things, the judge will assume that the parent was not acting in the child’s best interests.1

1 R.C.M. § 40-4-219(1)(b)

Si me mudo a otro estado, ¿puedo transferir mi caso de custodia allá?

Es posible que en algún momento se mude con sus hijos/as del estado donde se dio la orden final de custodia. Para información sobre cómo solicitar que se transfiera el caso de custodia a un nuevo estado, por favor vaya a Transferir un caso de custodia a un estado diferente, en nuestra página general de Custodia. Sin embargo, es importante tener en cuenta que es probable que necesite obtener permiso de la corte o de el/la otro/a padre/madre para mudarse de estado. Por favor hable con un/a abogado/a para asegurarse que sus planes de mudanza no violen su orden de custodia o las leyes de secuestro parental de su estado.