Child Custody in Montana: The Best Interests of the Child

Wondering how courts in Montana award child custody? Here's how it works.

When divorcing parents come into court for a decision on parenting arrangements, judges in Montana make decisions based on the best interests of the child. The Montana legislature has recognized that a child’s best interests are generally served by “frequent and continuing contact with both parents.” Judges can consider any factor relevant to parenting and are guided by some factors that are set out in the state’s laws. These tend to fall into the following basic categories:

Health and Safety

If a court determines after a hearing that a parent or someone living with the parent poses a threat of physical abuse either to the child or to the child’s other parent, the potential danger will override the policy in favor of frequent and continuing contact. A parent who has been convicted of a crime involving violence, child endangerment, or illegal sexual behavior is likely to face a requirement of supervised visitation or have visitation suspended. In assessing the safety of a child’s environment, the court will also consider the mental and physical health of all individuals involved, including whether either parent is affected by chemical abuse or dependency.

Emotional Needs

The stability of the environment in each parent’s home is an important factor, as is the quality of the child’s relationship with each parent. Some of the same concerns affecting physical health and safety, such as a parent’s mental health or chemical dependency, may also affect a child’s emotional well-being. Courts generally favor arrangements that maintain continuity and stability of care, as well as those that address each child's unique developmental needs and optimize a child’s overall adjustment. A court will also consider sibling relationships, as well as a child’s relationship with any other significant person. In addition, courts give weight to the wishes of each parent and the child, if the child is old enough.

Financial Support

A parent who has failed to pay costs related to the child’s birth despite being aware of and able to pay such costs will be considered to have acted against the child’s best interest, as will a parent who has the ability to provide a child with financial support and has failed to do so. Nevertheless, a parent's failure to pay child support does not excuse the other parent from following the terms of a parenting plan.

Vexatious Court Actions

“Vexatious” is a term sometimes used to describe a person who brings a legal action against another person solely for the purpose of annoying that person. A parent who comes back to court over and over to request changes in a parenting plan may be considered to be vexatious and to be behaving in a manner inconsistent with a child’s best interest. The court presumes that a parent who brings an action to modify a parenting plan within 6 months after the other parent has sued for child support, or a parent who seeks to make changes in a final parenting plan without making a real effort to comply with the plan or with the dispute resolution provisions of the plan, is acting vexatiously.

Parenting Plans

Judges always prefer that parents meet their responsibilities to their children by working together to agree on a parenting plan, rather than asking a judge to intervene. Montana law requires parents involved in an action for divorce or separation to submit proposed parenting plans either jointly or individually to the court, and every final decree of dissolution must incorporate a final parenting plan.  

The more specific a parenting plan is, the easier it will be to follow and to enforce. Final parenting plans may include provisions specifying the following:

  • which parent will make decisions about the child’s education, spiritual development, and health care
  • where each parent and the child will live
  • how the parents will share responsibility for the child’s financial needs
  • a method for reviewing the parenting plan when either parent or the child asks for review, or when specific events happen, like the child reaching a certain age
  • the consequences if either parent fails to follow the terms of the plan
  • a method for resolving disputes which may arise in the future, and
  • any unique circumstances which parents agree – or the judge believes – may contribute to an ongoing and meaningfulrelationship between the child and the parents.

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