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Legal Information: Montana

Montana Custody

Custody

This page includes information about custody that is specific to Montana. There is also a page for general information that you may find helpful. In our general Custody page, we have information about custody that is not specific to any state. The page includes a section about how to try to transfer your custody case to a new state where you are living so that you can modify the custody order from your new state.

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 parent1 - 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 vengeful (done out of revenge). 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.

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.

1 R.C.M. § 40-4-212(1)(f)

If my child was conceived from rape, can the offender (parent) 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
  • 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)

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 a dispute resolution process (i.e., mediation or counseling) to resolve any conflicts that there are over the amendment the a parent requests. However, the judge cannot order mediation or counseling if:

1 R.C.M. § 40-4-219(9)

If a parenting plan order is already in place, how can I get it changed?

Filing an amendment petition
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 (amend 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 whether the amendment is in the child’s best interests, the judge:

  • will consider the factors listed in How will a judge make a decision about a parenting plan (custody)? and
  • may also consider:
    • 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 propose change - but this only will be considered when the child is 14 years of age or older;
    • 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
    • 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 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” option explained below.3

Filing an objection
If 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:

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)
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)