Child Custody Decisions in Montana

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 How is Child Custody Defined in Montana?

Montana regulations no longer use the words “custody” and “visitation.” Instead, it utilizes “parenting” to promote the idea that both parents should be involved in the children’s lives as long as it is safe and in adherence with the children’s best interests. Additionally, a Parenting Plan must be included in every divorce with minor children.

However, unmarried parents may file for a Parenting Plan as well. Parenting Plans are meant to prevent disagreements about the parenting of the child. The plan is supposed to protect the child’s best interest, set out parental authority and responsibility, and prevent the parents from returning to court.

Child custody is defined as the guardianship over a child, which covers both physical custody and legal custody. In a child custody dispute, the court may grant joint custody to both parents or sole custody to a single parent. Child custody cases in Montana can be either contested and resolved by court order or uncontested and defined in a child custody agreement between the parents.

A custody agreement or order will legally determine, at minimum, the following items:

  • Where the child resides (physical custody);
  • Who is involved in making parenting decisions (legal custody); and
  • How the visitation schedule with non-custodial parents or relatives is arranged

According to the Montana State Bar Association, starting October 1, 1997, the words “custody” and “visitation” no longer appear in the statutes governing the dissolution of marriage, the term “Parenting” and “Parental Contact” is now used as stated earlier. The terminology was modified to eliminate disputes between parents about the words used and focus attention on the best interests of the children as mentioned above.

Now, parents must file a “Parenting Plan.” The forms used may identify virtually every potential parenting issue that could arise. But, If parents cannot decide how to resolve a specific dispute, the court decides based on the child’s “best interests.” This new methodology and terminology will terminate non-contested issues, specify contested issues, and focus attention on those contested issues.

How Does a Montana Court Decide on Parenting Factors for Custody?

Couples with children must come to a child custody agreement that describes which parent the children will reside with, how visitation will be scheduled, and how the non-custodial parent will pay child support. Some of the factors considered by Montana in child custody cases include the child’s wishes and any history of domestic violence.

Moreover, the court shall consider all relevant parenting factors for custody:

  • The wishes of the child’s parent or parents and the wishes of the child;
  • The interaction and interrelationship of the child with the child’s parent or parents and siblings and with any other person who significantly affects the child’s best interest;
  • The child’s adjustment to home, school, and community;
  • The mental and physical health of all individuals involved;
  • Physical abuse or threat of physical abuse by one parent against the other parent or the child chemical dependency, or chemical abuse on the part of either parent;
  • Continuity and stability of care;
  • Developmental needs of the child;
  • Whether a parent has knowingly failed to pay birth-related costs that the parent can pay;
  • Whether a parent has knowingly failed to financially support a child that the parent can support; and
  • Whether the child has frequent and continuing contact with both parents, unless the court determines, after a hearing, that contact with a parent would be detrimental to the child’s best interests.

If the parents are on speaking terms they may agree to custody terms in a parenting agreement between themselves, or through a mediator. If child custody is disagreed upon, however, they will have to receive a child custody order from a Montana judge, who will attempt to make a custody decision that is in the best interests of the child.

Lastly, In the state of Montana, several factors are taken into account by the courts when determining who gets child custody. Montana has a list of statutory factors that are considered by the court when determining a custody order as stated above.

This list may include factors such as the child’s age, the living situation of each parent, any history of abuse or neglect from either parent, etc. Although there is a statutory list of factors, consider other factors at its discretion depending on the particular situation of the case.

Do Judges in Montana Favor Joint Custody?

Judges in Montana are authorized to order either joint or single-parent custody of a child subject to a custody dispute. However, courts in Montana do not have a presumption in favor of joint custody orders when evaluating child custody. The judge will examine the specifics of the custody dispute to determine what custody arrangement best suits the child.

However, It is not particularly encouraged that the parents cooperate to raise the child. In Montana, the court does consider the child’s reasonable wishes when determining which parent gets awarded custody. The judge may decide on the child’s age, maturity, and judgment into account when considering the child’s custody preference.

Where Do I File for a Parenting Plan in Montana?

You must file a Parenting Plan with the Clerk of District Court in the county where the venue is proper. A county may be a proper venue if:

  • One or both parents live in the county;
  • The children reside in the county; and
  • Or, the children have important ties to the county, like where they go to school or see their doctor.

Based on your circumstances, there could be more than one county that may be a proper venue. If you have questions about which county to file in, you can speak with a lawyer.

What is Mediation?

The Montana state Bar association describes Mediation as a voluntary process wherein parties attempt to find common ground to resolve their differences. A neutral third party collaborates with the parties to assist in the direction. Lawyers may or may not be present. Mediation can happen at any time in the dissolution process.

Mediation has several advantages, including:

  • Cheaper expenses;
  • The overall process is shorter in time than going to trial; and
  • The solutions are created by the parties, not the judge, and therefore have a higher chance of success.

The court may necessitate that parents participate in mediation to resolve disputes that arise under parenting plans. The Supreme Court also mandates that all dissolution cases proceed to mediation at the beginning of the appellate process. This information is intended to inform you about Montana Law generally. You are encouraged to speak to an attorney regarding the specifics of your situation.

When Do I Need to Contact a Lawyer?

If you reside in the state of Montana and are dealing with child custody issues it is recommended to reach out to a Montana child custody attorney in your area to assist you with the process.

Child custody can become complicated quickly with time-consuming litigation, emotional draining decisions, and create financial burdens. To avoid this and to be more informed about your case, do not hesitate to speak with your lawyer to guide you in the process. Your attorney can also keep you updated regarding any changes to the law that might affect your legal rights or options.

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