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Legal Information: Montana


December 20, 2023

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)