Montana Custody Laws: An Overview
The State of Montana provides for child custody matters under Title 40 Chapter 4, Sub-Chapter 2 of the Montana Code Annotated. The objective of statutes as set forth in §40-4-212 is to guard and promote the welfare of the children of the state by substituting the judgment of the state for that of a parent when facts demonstrate that the interests of the child require the taking of some action.
For purposes of Montana law "minor child" or "child" means an unmarried person who is under 18 years of age. For purposes of the Uniform Child Custody Jurisdiction and Enforcement Act "home state" means the state where a child lived with a parent or another person acting as a parent for at least six consecutive months, immediately before the time of the commencement of a child-custody proceeding. §40-4-211(1)(d), MCA.
Types of Custody Orders A court may issue the following types of custody orders: §40-4-212(a)-(c), MCA.
Custody awards in Montana generally fall into the classification of Sole custody , where one parent has the responsibility and authority to make decisions relating to the child’s welfare. A sole custodian parent may be designated residential custodian (primary physical custodian for purposes of a shared parenting plan). See §40-4-228(3). Sole custodial parents also have decision-making authority.
Alternatively, Montana may award Joint Legal Custody, where both parents must participate in these legal decisions. And we have Joint Physical Custody, i.e. shared physical custody where each parent maintains homes for the child and where the child spends significant time with both parents. §40-4-208, -214, MCA.
Custody Determination In determining custody and parenting arrangements, Montana courts must consider the following factors:
Montana statute expressly states in any case of divorce or separation involving children, the court shall by order approve or establish a parenting plan that is consistent with the best interests of the child as defined in §40-4-212. §40-4-202(a), MCA. Montana also has adopted a presumption against granting equal parenting time in a parenting plan unless the parents agree otherwise. §40-4-217(c)(iii), MCA.
Different Types of Custody in Montana
Montana law recognizes several types of custody arrangements for parents, and may be held on a temporary or permanent basis. The type of physical care and parental responsibilities granted to a parent can have a profound impact on the lives of both the children and parent, which is why Montana law provides child custody evaluators and the courts with a series of factors that are to be considered when determining what will be in the best interests of children.
Montana law recognizes two primary forms of custody, sole custody and joint custody. Sole custody grants one parent with the physical and legal care of children and decision-making power over any issues that may arise in those areas. Joint custody grants physical and legal decision-making authority to both parents, and while, schools cannot address either parent directly, both parents will have equal rights in matters of education, medical care, religious upbringing, etc. Overall, joint custody is preferred by Montana courts.
Although joint custody is favored, it may not always be in the best interests of the children of the marriage or relationship, given the fact that joint custody requires that the parents be able to communicate and make decisions jointly. In cases where joint custody may not be appropriate, sole custody may be ordered.
Montana, like some other states, also considers sole custody to be temporary, and a child custody order may later be modified during the course of the children’s lives, based on changing circumstances.
Under Montana law, visitation rights are separated into three categories: (1) Grandparent; (2) step-parent or relative; and (3) other. Under Montana law, grandparents can even seek visitation rights over the objections of natural parents (Montana Code Annotated 40-4-228). There are also laws that involve attorney and investigator fees in Montana custody cases if there is an improper denial of visitation (Montana Code Annotated 40-4-228(8)).
Montana law places great emphasis on making decisions related to children of marriage – whether parents were married at the time of the children’s birth, civil union, or domestic partnership. By understanding Montana’s custody laws, parents can work to structure their custody agreement according to the interests of their children.
Factors Considered in Custody Decisions
Montana courts consider various factors when determining custody in order to make a decision that is in the best interest of the child involved. One of the most important factors is the best interest of the child, which can include education, medical needs, and their relationship with their parents and other siblings. A court will generally favor the parent who would have less disruption to the child’s life – including moving from one school district to another, for example.
However, parental fitness, which includes the ability to provide for a child’s emotional and physical needs, is considered by courts and is the lynchpin in many custody determinations in Montana. The child’s age, along with whom the child identifies most closely with, are also considered. If the child is of sufficient maturity, their preference is considered.
Modification of Child Custody Orders in Montana
Parents in Montana Divorce or Paternity cases have the ability to modify a parenting plan at any time after the court has entered it as long as there is good cause shown and the modification is in the best interest of the child. As the child ages, it is not uncommon for parents to become subject to court proceedings to modify or impose conditions upon a parenting plan. Modifications to parenting plans are not made easily or lightly, but the parent seeking modification must show good cause. Some examples of good cause for a modification of parenting plan could be a parent relocating, a dramatic change in the financial situation of the parties at the time of the original entry of the Parenting Plan, a new substance abuse or substance dependence issue, violations of the parenting plan by the former other parent, or any allegation of abuse to a child.
Importantly, parents cannot enter into an agreement to modify a parenting plan without first having had a court hearing on the matter. If an agreement is reached between the parties, along with good cause for the modification, a letter can be drafted and filed with the court requesting the Court enter an order modifying the parenting plan .
The modification process to a parenting plan may be pursued through a motion to modify parenting plan, a motion for contempt with modification, or a petition to establish temporary parenting schedule with a modification. While a motion to modify parenting plan is the proper procedure to modify a parenting plan, some Courts also allow petition and motion together. If the modification sought to parenting time is significantly different than the prior parenting plan, moving parties should proceed with a motion to augment rather than a contempt motion and petition to establish temporary parenting schedule with a modification.
When a parent pursues a motion for contempt with modification, that parent must show good faith in having sought the contempt as well as establishing a substantial and continuing change in circumstances. The Court will look favorably on a modifying parent that has sought to resolve issues prior to coming to court and will require the modifying parent to show the opposing party was served with a copy of the motion or petition prior to the Court hearing of the motion to modify parenting plan.
Enforcement of Custody and Visitation Orders in Montana
In some circumstances, Montana courts have the power to enforce a previous order, to ensure one parent’s compliance with the terms of the agreement. If a parent cannot keep the terms that are set (due to homelessness, job change, etc.), it is important to have a new order (whether temporary or permanent) that outlines child custody enforcement terms. If the other parent, who didn’t get custody, is seeking to maintain a close relationship with the child, the court will work to foster a close relationship between the parent and child despite the order that gives primary custody to the other. If your ex does not follow through on the visitation times they are given in the official order, a judge can grant a mediation session between the parents that can help to decide the best action going forward—sometimes, it may be that you go back to court to modify the order that was originally granted to your ex (as in example 1). If the non-compliant parent is so far out of bounds that they are at risk of losing custody or visitation entirely, or if they are a repeat offender of violating prior orders, pursuing further legal action may be the best option (as in example 2). That being said, parents who are over-burdened with enforcing orders shouldn’t necessarily fear other parent’s non-compliance: according to the law, "the court may allow reasonable visitation by a party whose residence is … in a different state from the residence of the child. The court may limit visitation as necessary to protect the child." For example, if you have a parent who lives in Montana and another parent who lives in New York, and the parent in New York must travel to Montana to see their child, visitation terms will likely be made to allow for this to happen easily and fairly, instead of abandoning the idea of visitation altogether. Montana courts can even enforce interstate custody orders, working cooperatively with a jurisdictional court—which is imperative to remember if you’re traveling or moving outside of Montana and want to keep your child custody agreement intact.
Legal Help and Resources
Navigating a custody case can be a complex and emotionally charged process. As such, it is often beneficial to seek legal assistance in order to ensure that your interests and the best interests of your children are effectively represented. Family law attorneys specializing in Montana child custody matters have the experience, knowledge, and understanding of Montana’s legal system and family law judges that can help you navigate your case toward a favorable outcome.
In addition to hiring a family law attorney, parents may also wish to consider mediation services to help facilitate communication and negotiation with the other parent. Mediators are trained professionals who assist in resolving conflicts and reaching agreements outside of court. The Family Court Services Division of the Civil Court in Ravalli County provides mediation services for custody and parenting plan disputes . More information on Family Court Services, including the forms necessary in order to request mediation services, can be found on their website.
Finally, a number of organizations and resources are available for parents either going through or who have completed a custody case in Montana. These groups offer emotional support, informational resources, and sometimes even financial assistance or legal aid in certain situations. For example, the Self Help Program of the Montana Supreme Court helps litigants representing themselves access legal information and resources so that they can competently represent themselves. The Montana Department of Public Health and Human Services Division of Child and Family Services provides dozens of links related to child protection, child support, adoption, early childhood trauma, prevention, and more.
All of these resources can be invaluable in building a successful case for custody of your child, and the appropriate support for yourself and your family.