As with a number of other states, Montana custody laws have changed the terminology regarding the rights of parents and children when the parents are separating or getting divorced. The terms “custody” and “visitation” now fall under the general term “parenting.” The purpose was to move away from the zero-sum mentality often associated with the word “custody”—one parent gets the kids, the other doesn’t; like it was a contest to be won or lost.
The “parenting” concept allows for a variety of arrangements. But at the heart of all of them is the principle that the ultimate plan that is put in place must be in the best interests of the child.
The law requires both parents to provide the court with a parenting plan in Montana. (Montana Code Annotated - Title 40 §4-234 (1).) In developing a plan, parents need to decide whether one or both parents will make major decisions regarding the child’s welfare. This refers to subjects such as where a child will go to school, religious affiliation and instruction, and non-emergency medical care. The preferable outcome here, by far, is for the parents to be jointly involved in the decision-making process.
If, for some reason, joint decision-making isn’t feasible, then only one parent will make these decisions. You might see this in situations where the other parent’s judgment is compromised, for example by untreated drug addiction. Another such scenario would exist if the other parent’s involvement in the child’s life could harm that child, as you might find with an abusive parent.
As to day-to-day decisions regarding the child’s care, the law provides that these are the responsibility of the parent the child is residing with at the time. And either parent may make emergency decisions affecting the child’s safety or health. (Montana Code Annotated - Title 40 §4-234 (5).)
A second major issue parents must address is a determination of where the child will live. In the past, it was typical for the child to reside with one parent, while the other parent had “visitation” rights. (In many states today, “visitation” is referred to as “parenting time”.)
A fairly standard visitation template was that the parent the children weren’t residing with would have them overnight every other weekend, and perhaps spend one evening per week with them. Today the law seeks to have both parents spend as much time as possible with the children. So it’s not unusual for the children to live with each parent for certain periods during the year.
Deciding a child’s residence is potentially a more difficult issue to deal with than decision-making responsibilities, because there’s the possibility of geographical limitations. If the parents live in the same town and school district, that should be relatively easy to navigate. But significant distance between residences could be problematic. So in those cases, perhaps the child stays with one parent during the school year, and the other during the summer. Parents must make every effort to facilitate continuing contact between the child and the parent the child isn’t residing with, such as on weekends (if possible, depending on distance) or school breaks.
For all the emphasis on fostering interaction between parents and children, there are situations in which that’s not in the child’s best interest. This primarily involves cases in which there’s evidence of parental abuse or neglect. An example would be where there’s a history of domestic violence. In these cases, a judge is likely to order that contact between the parent and the child take place in a supervised setting, usually a court-approved facility where trained personnel can oversee the visit.
Where you can prove a parent is unfit (for example, in cases involving physical or sexual abuse) the court can terminate a parent’s rights. If that happens, the parent-child relationship no longer exists. (Montana Code Annotated - Title 40 §6-1001.)
Whether reviewing a proposed parenting plan or deciding on one when parents can’t agree, judges have to assess the circumstances of each case to determine what’s in a child’s best interest. The law provides judges with a list of factors to consider in making their decision. Some of them are:
As seen in the list of factors in the previous section, a child’s wishes is one of the things a court can consider in making a parenting decision. But it’s not necessarily given greater weight than any of the other factors. There’s no set age in Montana at which a judge must give consideration to a child’s preferences. Rather, the judge will look at the unique circumstances of each case. As a general rule, the older a child is, the better the chance of a judge taking the child’s wishes into account. But all children are different. It’s conceivable that a 12-year-old may be more mature than a 14-year-old. So the judge will need to evaluate the child’s ability to make a sound judgment.
By way of example, in one Montana case the judge didn't consider the preferences of children who were 5 and 8, because the judge thought the children were too young. The judge didn’t interview either child because he felt neither of them could express any independent, reasoned preference on parenting arrangements, due to their age.
In another case, however, a Montana court decided that two girls, ages 11 and 13, were both of sufficient age to formulate intelligent and reasoned opinions. In that case, the court took the children’s preferences very seriously, and granted their request to live with their father.
Normally, courts try to avoid having children testify in open court. A courtroom can be intimidating for a child. Under Montana law, a judge can interview children in the judge’s chambers to find out their preferences. The attorneys can also be present. There must be a record made of the interview, which is normally done by a court reporter. (Montana Code Annotated - Title 40 §4-214.)
A judge doesn’t have to interview children personally to consider their wishes. The court may appoint a professional, like a child therapist or parenting evaluator, to meet with the children (outside of the parents’ presence) to determine their preference. Also, if the circumstances of the case call for it, a judge can appointment someone (referred to as a “guardian ad litem”) to represent the children’s interests. (Montana Code Annotated - Title 40 §4-205.) Frequently, the guardian ad litem is an attorney.
Another question that tends to come up relates to when a child can refuse visitation in Montana. “Visitation” is the old term for the time the parent whom the child isn’t living with gets to spend with the child. Under Montana law, anyone under the age of 18 is considered a minor. (Montana Code Annotated - Title 41 §1-101.)
As a minor, a child technically can’t refuse to visit with a parent. But remember, virtually every issue that arises in a parent-child relationship is subject to judicial review. So if the child’s refusal to spend time with a parent is brought to the court’s attention, a judge can determine whether there’s a legitimate basis for that refusal.
Montana law provides for modification of parenting plans, in the court’s discretion. (Montana Code Annotated - Title 40 §4-219.) In order for that to happen, you’ll have to petition the court to implement the changes you’re requesting.
For you to be successful, the court will have to find, upon the basis of facts that have arisen since the prior plan or that were unknown to the court at the time of entry of the prior plan, that there’s been a change in the circumstances of the child and that the modification is necessary to serve the child’s best interest.
In making its decision, the court will look at the same factors used in making a determination of the best interests of the child. The statute also provides some additional things for the court to consider, including:
That last factor is especially interesting when you consider that the list of “the best interests of the child” factors seen earlier in this article doesn’t specify an age, when referring to the child’s wishes.