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Montana Child Custody
Child Custody in Montana

According to the Montana Code, Section 40, Title: 4-212, "[t]he court shall determine the parenting plan in accordance with all relevant factors outlined and pertaining to the best interest of the child."

Montana child custody laws protect and promote the child's welfare. Montana's family courts urge divorcing parents to work out the details of raising their child after a divorce. Cooperative divorced parenting reflects a willingness to meet the needs of their child and strengthen the parent-child relationship. The court steps in to resolve issues on child custody, support, and visitation rights when parents cannot. The court bases custody decisions on the best interests of the child.

Divorcing parents submit a proposed parenting plan to the court. The parenting plan may be submitted jointly or separately. Based on the best interests of the child, the court awards either sole or joint custody. Montana child custody laws prohibit the court from determining custody based on presumption rather than considering factors to minimize the emotional impact of divorce.

Family courts have jurisdiction over child custody actions. The court considers several factors that help it decide the most feasible custody arrangement, including:

  • the child's wishes or preferences, provided that he or she is mature enough to make such preferences;
  • the child's ability to adjust to his or her home, school, and community;
  • the child's growth and development needs;
  • the parents' wishes or preferences as to custody;
  • any history of domestic violence, child abuse, negligence, or substance abuse;
  • the nature of parent-child interaction as well as the child's relationship to his or her siblings and other members of the family that may affect his or her best interests;
  • the mental and physical health of all parties involved in the proceedings;
  • the parents' desire to continue care and support; and
  • the past performance of a parent in financial support.

Mandatory Parenting Class

Montana courts have the right to require divorcing parents with minor children to complete a parenting class before granting a divorce. It is the Judge's discretion, so he or she may require you to take a parenting class. Whether or not you are required to do so, we highly recommend taking the Children In Between parenting class for the benefit of your child(ren).

Joint Custody Preference

Montana law expresses a preference for parents to share as equally as practically possible in the custody of a child in a divorce case. When parents agree on custody arrangements, Montana requires that the agreement clearly define both legal and physical custody and include a parenting plan. Physical custody means where the child resides and with whom, and legal custody defines the right to make decisions regarding the child's upbringing, including childcare, education and medical needs.

The court does not grant custody based solely on the child's gender or the parents' financial status.

Third Party Custody

In some cases, a third party, or someone other than a child's biological parents, tries to gain custody of a child.

In order for a third party to receive custody, he or she must apply for guardianship with Department of Public Health and Human Services. The department reviews the application and makes certain that the petitioner meets certain criteria in providing for the child. These criteria include whether:

  • the placement of the child with the party is in the best interest of the child;
  • the party actually wants custody of the child; and
  • the party is able to provide permanency or stability in residence, along with education and extracurricular activities for the child or children.

To make these determinations, DPHHS can request financial and other records establishing fitness and residency from the party seeking custody.

Parental Conduct

In addition to finding a parent unfit because of substance abuse or abuse or neglect towards a child, the courts also consider the conduct of both parents during the course of the marriage, and the impact of parental behavior on the child.

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