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Legal Information: Montana

Custody

Updated: 
December 20, 2023

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)

If I move to a new state, can I transfer my child custody case there?

After a final custody order is issued, there may come a time when you and your children move to a different state. For information about how to request to transfer the custody case to a new state, please go to the Transferring a custody case to a different state section in our general Custody page. However, it’s important to keep in mind that you may likely first need to get permission from the court or from the other parent to move your children out of state. Please talk to a lawyer to make sure your plans to move don’t violate your custody order or your state’s parental kidnapping laws.