Do Grandparents Have Visitation Rights in Montana?

Are you concerned about divorce, separation, or one parent's death impacting your relationship with your grandchildren? These life-altering changes in the family can impact the grandparent-grandchild relationship, especially when a surviving or custodial parent tries to limit your contact.

This article explains when and how grandparents can request court-ordered visitation with their grandchildren in Montana.

Do I have a legal right to grandparent visitation?

In Montana, grandparents have a legal right to request reasonable contact with their grandchildren at any time, including before or after one parent's death, divorce, and/or separation. This right applies to biological or adoptive grandparents and great-grandparents.

What must I prove in court?

The grandparent asking for visitation has the "burden of proof" (the duty to provide sufficient evidence) to show that the proposed visits are in the child's best interest, considering:

• the child's age
• the child's wishes, if he or she is mature enough to express a preference
• the distance between the child's home and where your proposed visits will occur
• the mental and physical health of everyone involved, including the child, his or her parents, and anyone else that may have filed for visitation or custody
• your past and current relationship with the child and parent(s), and/or
• your nurturing skills and attitude towards the parent(s).

Judges must give great weight to parental preferences regarding who visits their children unless there is evidence of abuse or neglect. If your grandchild is adequately cared for, and the child's parent objects to your proposed time, the court must strongly consider the parent's objection.

How do I start the process?

You must file a "petition," (formal written request) with the court in the county where your grandchild lives. In your petition, you will describe your proposed schedule for court-ordered time. Your petition must be entitled, "In re the grandparent-grandchild contact of," followed by your last name and your grandchild's last name.

Once you've filed your request, you must give notice to everyone involved, including the child's parents and anyone else that may have filed for custody.

If you already have a visitation order, but you want more time or the child's parent is preventing you from visiting, you can ask the court to "modify" (change) it once every two years.

Will I continue to have rights if my grandchild is adopted by another family?

In Montana, adoption by anyone other than a stepparent cuts off a biological grandparent's rights to request visitation.

How do I get custody or guardianship of my grandchild?

Montana courts only allow any non-parent, including a grandparent, to request custody when they have an established parent-child relationship with child. If you have been acting as your grandchild's primary caretaker, you can request custody by filing a Petition for Parenting in the county where the child physically resides and giving notice to all parties involved.

Once you establish your legal right to apply for custody, you will have the "burden of proof" (the duty to provide sufficient evidence) to show that the child's interests are best served by being placed in you care, considering the child's health, safety, and welfare.

If you have questions about your right to spend time with your grandchild, you should speak to a local, experienced family law attorney, who can help you navigate this process.