How Domestic Violence Affects Child Custody in Montana

Learn more about domestic violence and the impact it may have on custody rights in Montana.

By , J.D. · University of Minnesota School of Law
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Domestic violence leaves a trail of emotionally and physically broken people in its wake. It also has a profound impact on child custody matters.

This article will explain what domestic violence is and how it affects child custody. If you have any questions after you read this article, consult with a family law attorney for advice.

Domestic Violence Overview

Some people who have been abused think they're not victims because no one physically wounded them. Because of this belief, they may seek out the help they need. So it's critical to understand that Montana law defines domestic abuse as including all of the following:

  • "assault" (intentionally causing bodily injury to a partner or family member)
  • intentionally causing a partner or family member to feel afraid of bodily injury
  • aggravated assault that results in serious bodily injury
  • assault on a child
  • assault with a weapon
  • intimidation
  • criminal or negligent endangerment (intentionally or carelessly engaging in conduct that creates a substantial risk of death or serious bodily injury to another person)
  • emotional abuse
  • stalking and harassment
  • economic abuse (the abuser maintains total control over the finances)
  • kidnapping
  • arson
  • aggravated kidnapping (kidnapping for purposes of ransom, terror, slavery, assault, committing felony crimes, or interfering with the government), and
  • unlawful restraint (the abuser intentionally restrains another person and obstructs their freedom of movement).

It's also common for people to question whether their relationship to their abuser is close enough to warrant legal intervention. Montana's domestic violence law covers partners and family members. "Partners" are spouses, former spouses, people who have a child in common, and people who have dated or are in a dating relationship. "Family members" are mothers, fathers, children, siblings, and other past or present family members of a household, regardless of age or whether they live under the same roof.

If you're a victim of domestic violence, you can go to court and ask for a domestic abuse protection order. To learn more, see this information from the Montana Department of Justice.

Community Resources

Montana has many resources that victims of domestic violence can tap into for help. The Montana Coalition Against Domestic & Sexual Violence doesn't provide direct services but does provide helpful information about domestic violence. A.A.R.D.V.A.R.C. (An Abuse, Rape, and Domestic Violence Aid and Resource Collection) also has a comprehensive listing of phone numbers and statewide contacts. Haven offers counseling, a shelter for victims, and a 24 hour crisis line that can be reached at 1-406-586-4111. The Missoula YMCA also offers counseling, shelter, and a 24 hour crisis line that victims can call at 1-800-483-7858.

Finally, victims can always call the National Domestic Violence Hotline at 1-800799-7233. It's available 24 hours a day, seven days a week.

Domestic Abuse and Child Custody

There are two kinds of custody: legal and physical. Most of the time, physical custody (meaning, where the children live) goes to the parent who spends more time with and provides the majority of the daily care for the children. The parent without physical custody is awarded visitation per a regular schedule.

Legal custody refers to a parent's right to make major decisions for a child, as in educational, medical, or religious matters. In most cases where there's been no abuse and parents are able to cooperate, both parents have joint (shared) legal custody.

Whenever a custody case comes up, courts are required to consider a long list of factors that represent the best interests of a child. For more information about the best interest factors in Montana, see Child Custody in Montana: The Best Interests of the Child.

One of the factors that a judge must consider is whether there has been physical abuse or the threat of physical abuse by one parent against the other parent or child. The court also has to consider the mental and physical health of everyone involved in the case. Therefore, emotional and physical domestic violence are vital considerations when a judge makes a decision about custody. Courtroom battles over relationships that are fraught with domestic violence are likely to wind up with the victim receiving custody or sole custody, provided that the victim proves there was abuse.

In one key Montana Supreme Court case, In the Matter of M.M., 200 Mont. 244, 246 (1982), a mother physically abused her infant daughter, while the father did nothing to stop her. The abuse reached the point that the child flinched when the mother disciplined her. Realizing she needed help, the mother surrendered the child to foster care and sought counseling from a regional health center, where she remained in therapy for six months. In the meantime, the parents separated and filed for divorce. Id. at 247. At trial, expert testimony showed that the mother had changed her ways and was now a stable parent. Nonetheless, the trial judge ruled that the father should have custody because the mother had the potential to abuse the child again. Id. at 248. The Montana Supreme Court agreed with the trial judge, reasoning that there was more than enough evidence that the child had been abused to support the ruling.

Impact on Visitation

When it comes to visitation, part of the court's duty is to ensure the child's physical care and emotional stability, and limit the child's exposure to parental violence and conflict. Therefore, if a parent has proven that the other parent committed acts of domestic violence, the judge has many options to protect the child. The judge can order supervised visitation, which means that another adult must be present to monitor the interaction. The other adult is usually a friend, family member, therapist, or a professional provided by a facility that specializes in high-conflict custody cases. There may also be other restrictions, like no overnight visits.

If the abusive parent has completed a program of therapy and other parenting classes, the court will generally transition from supervised visitation to unsupervised visitation.

Other Proceedings

In any case where it appears that a child is in danger of abuse or neglect, the county attorney or attorney general can file a petition to take the child into temporary emergency custody, investigate the case, and provide immediate protective services. The judge's decision to grant or deny the petition has to be based on the child's best interests. If the petition is granted, the court may appoint a guardian whose sole job is to look after the best interests of the child. The court will make a final decision about custody later. If the abuse was very serious, the judge may even terminate the parent-child legal relationship.

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