Parental Rights Termination in Montana (FAQ)
Authored By: Montana Legal Services Association (MLSA)
In this article, you’ll learn:
- How parental rights can be terminated
- What you can do if you don’t agree, and
- Options for keeping your child safe.
What is Parental Rights Termination?
Terminating a parent’s Parental Rights ends the legal relationship between a parent and their child. This means that the parent-child relationship and everything that goes along with it no longer exists. Terminating Parental Rights is an extreme measure and should not be taken lightly. Judges take Parental Termination cases very seriously.
How can parental rights be terminated?
In general, there are 3 ways parental rights can be terminated in Montana:
- A parent can lose their parental rights because of abuse and/or neglect. The State can terminate parental rights as part of a Dependency Neglect (DN) case in which there is abuse and/or neglect of a child. You can read the law for yourself at Montana Code Annotated (M.C.A.) § 41-3-422. The “§” is a symbol that means section. 40 is the Title number. 3 is the Chapter number. And, 422 is the Section number.
- Adoption is another area of the law where termination of parental rights occurs. Parents can consent to a relinquishment (giving up their rights) for an adoption to take place. Contested adoptions are often much more difficult and complex. Contested means that the other parent does not agree to the termination.
- Termination of parental rights may also occur in certain other situations such as a child being born as a result of a sexual crime. There may also be other grounds for termination that are specific to the facts of a case. You will need to talk to a lawyer if you have questions about when you can terminate someone’s parenting rights.
What if I don’t agree?
If you do not agree to the Termination of Parental Rights you can contest the termination in court. You must file a written Response with the Clerk of District Court to any documents asking the court to terminate your rights.
Do I need a lawyer?
Contested termination cases are often complex and the results may be life changing. The Court will automatically appoint you a lawyer in Dependency Neglect (DN) cases. You may also have the right to a lawyer in other types of contested termination cases, even if you cannot afford one.
If you have been served with papers for a step-parent adoption and don’t agree with the adoption, you can use our free court forms to ask the Court to appoint a lawyer to represent you if you cannot afford one.
I am worried about my child being with the other parent. What are my options?
As we said earlier, parental rights termination is an extreme measure. It is not to be taken lightly. There are things that you can do when you are worried about your child being with the other parent that don’t involve parental rights termination. It’s helpful to know that the Court may base some of its decisions on safety concerns for the parents and/or children.
Here are some of the things that you can do if you’re concerned about your child being around the other parent:
- Ask the Court to order a detailed Parenting Plan
- Make a safety plan
- For immediate safety concerns, consider an Order of Protection.
We’ll now talk a little bit about each of these three options.
A Parenting Plan sets out where the children will live, how much time the children will spend with each parent, and how decisions will be made about the children. The purpose of a Parenting Plan is to promote the best interests of the child. You can ask the Court to order a detailed plan that includes safety measures that promote the best interest of your child. For example, in a Parenting Plan you can ask that the other parent:
- Have limited or supervised parenting time
- Get counseling or other support services, and/or
- Follow other guidelines to protect your child’s best interests.
When deciding what to put in a Parenting Plan, the Court will consider such things as:
- Evidence of physical abuse, or threats of abuse, by one parent against the other parent or child
- Substance abuse by a parent
- Whether one parent has been convicted of certain violent or sexual crimes
- A parent’s untreated mental health issues that impact the child.
The Court may consider other things as well that affect the best interests of your child. Learn more about what you can ask for in a Parenting Plan. It’s a good idea to talk to a lawyer about coming up with a detailed Parenting Plan to promote your child’s best interests.
A safety plan is a personalized and practical plan to help you avoid dangerous situations with someone, and the best things to do if you or your child are in danger. For example, you can teach your child to not get in the middle of any fights or arguments the other parent gets into. You can teach your child how to call 911 if they are in immediate danger.
Order of Protection
An Order of Protection is a court order that is designed to stop violent and harassing behavior. It is meant to protect you and your family members from someone who has harmed or threatened to harm you and of whom you are afraid.
An Order of Protection does not take the place of a Parenting Plan. If you already have a Parenting Plan, you should file for an Order of Protection with same Court overseeing the parenting case. Learn more about Orders of Protection.
Can a Parenting Plan terminate my parental rights?
No. A Parenting Plan may be very restrictive in what kind of time a parent gets with a child. But, it does not terminate a parent’s rights.
Termination of parental rights is final. There is no going back. On the other hand, a Parenting Plan leaves the door open to more parenting time in the future. Under specific circumstances, a parent may ask the Court to change the current Parenting Plan.
In general, to change a Parenting Plan when the other parent does not agree you must show the Court such things as:
- There have been a significant change in circumstances, and
- A new plan is necessary to protect the child’s best interests.
It’s a good idea to talk to a lawyer before you try to change your Parenting Plan.
Even if you are unhappy with the Parenting Plan you have now, you must still follow it until it is officially changed by the Court. If you don’t follow the Plan, the Court may consider that when deciding whether to change it in the future. The Court may also punish you and hold you in contempt for not following the Parenting Plan. Before deciding to hold you in contempt, the Court will give you a chance to explain why you didn’t follow the Plan.
What happens when the child is Native American?
There are different laws that say how, when, and who can terminate a parent’s rights when the child is Native American. Those laws are known as the Indian Child Welfare Act (ICWA). Congress enacted ICWA to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families. If you have any questions about termination of parental rights when the child is Native American, talk to a lawyer right away.