Custody

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.² 

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)