Legal Information: Montana

Custody

Updated: 
December 31, 2021

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 (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)
2R.C.M. § 40-4-219(8)

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)

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