Montana law no longer uses the words “custody” and “visitation.” Instead, it uses “parenting” to promote the idea that both parents should be involved in the children’s lives as long as it is safe and in the children’s best interests.
The Petitioner is the party who first asks the Court for a Parenting Plan by filing a Petition for Parenting Plan with the Clerk of District Court. The Petition will include a Proposed Parenting Plan which lays out what the Petitioner wants for parenting.
The Respondent is the other parent. The Respondent will be able to state what they would like in a Parenting Plan by filing an Answer to Petition for Parenting Plan. The Respondent must file an Answer within 21 days after getting served with the Petition for Parenting Plan.
You can find the forms that you can use to file a Petition for Parenting Plan and an Answer to Petition for Parenting Plan on this website.
If you and the other parent are getting a divorce, you must include a Parenting Plan in your Dissolution of Marriage. You will file your Parenting Plan paperwork with the same Clerk of Court where you file your Dissolution of Marriage paperwork.
Filing a Petition for Parenting Plan does not establish a parenting schedule right away. It starts a Court process to decide where the children will live, what kind of contact the children will have with each parent, how the parents will make decisions about the child, and other things as well. The Parenting Plan lawsuit ends when the Court orders a Final Parenting Plan.
Who Can File for a Parenting Plan in Montana?
Either parent may file for a Parenting Plan in Montana only if Montana has jurisdiction over the children. Montana has jurisdiction over the children if they have lived in Montana for at least six months before a parent files a Petition for Parenting Plan. There are some exceptions. Most exceptions deal with safety concerns for the children or one of the parents. If you are in a dangerous situation and need to file a Parenting Plan before your children have lived in Montana for six months, talk to a lawyer.
You can find the laws that talk about jurisdiction in Montana Code Annotated (M.C.A.) § 40-4-211. The “§” is a symbol that means section. 40 is the Title. 4 is the Chapter. And, 211 is the Part. If you have questions about if you can file for a Parenting Plan in Montana, talk to a lawyer.
Where Do I File for a Parenting Plan in Montana?
You must file a Parenting Plan with the Clerk of District Court in the county where the venue is proper. A county may be a proper venue if:
- One or both parents live in the county,
- The children live in the county,
- Or, the children have important ties to the county, like where they go to school or see their doctor.
Based on your situation, there could be more than one county that may be a proper venue. If you have questions about which county to file in, talk to a lawyer.
How does the Court decide parenting?
The Court will determine a Parenting Plan based on what it believes are the "best interests of the child." When deciding what is in the best interests of the child, the court will consider these factors along with others:
- The wishes of the child's parents;
- The wishes of the child;
- The interaction of the child with the parents, siblings, and other persons who may significantly impact the child;
- One parent's physical abuse or the threat of physical abuse against either the child or the other parent;
- Chemical dependency or abuse by either parent;
- Continuity and stability of care;
- Developmental needs of the child; and
- Whether a parent has knowingly failed to pay birth costs or child support that the parent is able to pay.
You can find the law that talks about the factors the Court will consider when deciding the best interests of the child at Montana Code Annotated (M.C.A.) § 40-4-212. Remember, the “§” is a symbol that means section. 40 is the Title. 4 is the Chapter. And, 212 is the Part. If you have questions about the best interest of the child, talk to a lawyer.
Local Parenting Plan Guidelines
We also recommend that you check with the Clerk of Court or your nearest Self Help Law Center to see if they have local Parenting Plan Guidelines. You can think of the guidelines as a way to add more direction to what the law says a Court should look at when deciding parenting. The Court will likely base its decisions on its local guidelines.
Can you limit the other parent’s time with the children?
Montana law assumes that it is best for the child if both parents have frequent and ongoing contact with the child. Ideally, both parents will spend close to equal time with their child when it is in the child’s best interests. It is not necessary in all cases for children to spend exactly the same amounts of time with each parent.
Sometimes it is not in the best interests of the child to have frequent contact with a parent. The Court may decide to limit contact and/or order supervised visitation with that parent if it is necessary to protect the child from harm. The Court may hold a hearing to decide if it is in the best interests of the child to limit parenting time.
When deciding whether to limit and/or order supervised visitation, the Court will consider such things as:
- Evidence of physical abuse by one parent against the other parent or child
- Evidence of threats of physical abuse by one parent against the other parent or child.
- Substance abuse by a parent.
The Court will also consider whether one parent has been convicted of:
- Sexual assault or rape
- Child endangerment
- Partner or family member assault
- Sexual abuse of children
- Strangulation of a partner or family member.
The Court may consider convictions for other crimes when deciding whether to limit contact.
The Court may also consider other issues when limiting parenting time. For example, the Court may consider:
- Child development
- Nursing needs of an infant
- Untreated mental health issues that impact the child
- Availability and location of the parents.
The forms on this website have room for you to ask for limited contact and/or supervised visitation. If you have any questions, talk to a lawyer.
May I terminate the other parent’s rights?
Filing a Petition for Parenting Plan does not terminate a parent’s rights. It only sets out things like where the children will live, how much time the children will spend with each parent, and how decisions will be made about the children. Terminating parental rights means that the parent has no rights at all to interact with the children, and does not pay future child support. A parent whose rights were terminated may still be ordered to pay back child support.
In general, you may only ask the Court to terminate the other parent’s rights through a step-parent adoption. If the other parent does not agree to have their parental rights terminated, they may ask for a Court-appointed lawyer to represent them in the step-parent adoption case. The parent asking for the step-parent adoption does not have the same right to a Court-appointed lawyer. The step-parent adoption forms on this website are only for when both parents agree.
There are other unique situations when you may be able to terminate a parent’s rights without a step-parent adoption. In those cases, the Court may also appoint a lawyer to represent the parent at risk of losing their rights. You can learn more by reading our article on Termination of Parental Rights in Montana. If you have any questions about adoption or terminating parental rights, talk to a lawyer right away.
Setting up a residential schedule
Parenting Plans can be general or very specific in stating where the children will be at different times. For example, the plan can state who the children will live with before the children start school, while they are in school, during summer and winter vacations, and for different holidays and other special occasions.
The more specific you make your Parenting Plan, the less you and the other parent will be able to disagree over vague or unclear language. It also will be easier to enforce if the other parent violates the plan. For example, you should use language like, "the first and third weekends of the month from 5:00 p.m. Friday to 5:00 p.m. Sunday" rather than just "every other weekend." Do not use general language such as "reasonable visitation" if you are worried that the other parent will not follow the plan or that you will have disagreements over what "reasonable" means. Detailed language on the exact parenting schedule may also make it easier for enforcement by law enforcement as well as the Courts.
It is also a good idea to think about how you want to exchange your children with the other parent. If you and the other parent often get into disagreements, you might want to include specific information about how you will exchange the children for visits. If the other parent has been abusive to you in the past, you might want to set up a meeting place for the exchange somewhere that is safe and public. For example, the parking lot of a busy restaurant or store. You may also want to check in your area for a professional supervised visitation and exchange center that you can use.
The forms for Parenting Plans on this website have sections where you can ask for specific rules for residential schedules and exchanges for the children. The forms let you ask for specific parenting time during the school year, vacations, weekends, holidays, and special occasions like birthdays.
We have interactive forms that create a legal document based on answers that you give in an online interview.
We also have write-in-the-blank forms that you can print out and fill in by hand.
Child and Medical Support
The Court will include a Child Support Order in the Final Parenting Plan. One or both parents may have to pay child support. Child support must be within guidelines set by the Child Support Enforcement Division (CSED). When you have good reason for why child support should be different than what has been calculated, you may ask the Court to consider a different amount. There are three ways to come up with child support within the guidelines:
What are the Child Support Guidelines?
The Court will order a child support amount that it finds is reasonable or necessary for raising the child. Marital misconduct does not affect the amount for child support. The Court will base the amount of child support on:
- The financial resources available to the child;
- The financial resources available to each parent (income, pensions, etc.);
- The standard of living the child would have had if the parents were still together;
- The child's emotional, educational, and medical needs;
- The age of the child;
- The cost of day-care; and
- How much time the child spends with each parent.
A private lawyer, CSED, and the free Montana Online Child Support Calculator will likely all come up with a Child Support Order that meets the guidelines. A private lawyer may be a good option if you have the money and a complicated situation. The Montana Online Child Support Calculator is a good option if you know the other parent’s financial situation, and neither parent gets any temporary income. An example of temporary income could be money from seasonal work. Opening a case with the Child Support Enforcement Division (CSED) is a good option if you are having trouble using the Montana Online Childs Support Calculator and cannot hire a lawyer. CSED can also help with enforcing the child support Order as can the Court.
Learn more about the Montana Online Child Support Calculator.
One important factor in figuring the child support amount is how much each parent is earning. Both parents should complete a Child Support Guidelines Financial Affidavit. You must sign this document in front of a notary, swearing that the information in it is true. You are also required to attach copies of your pay stubs or other documentation of your income.
The Montana Online Child Support Calculator will help you come up with a Financial Affidavit. CSED or a private lawyer will use the Financial Affidavit to come up with a child support calculation.
If you do not already have a Child Support Order, the law requires you to file a copy of Financial Affidavit with the Court and serve a copy on the other parent as a part of your Dissolution and/or Parenting Plan case.
What does unemployment do to Child Support?
A parent is still responsible for paying child support even if:
- Their income is unknown, or
- They are unemployed.
In general, the court assumes that everybody could be working 40 hours each week and earning at least minimum wage unless you can show with good reason why you cannot work 40 hours a week. The amount of money you would make from a full time job at the minimum wage is "imputed" to each parent. Imputed means the Court assumes that parent could make that much money.
The court may impute higher than minimum wage if the parent has a higher potential to make more money. Education level and work history may affect your earning potential. For example, if one parent made $75,000 a year for a few years and then took another job at $50,000 a year, the Court may impute a higher wage based on the parent’s earning potential.
How are the Child Support payments made?
Child support payments are generally made by automatic income withholding. Automatic income withholding is when child support comes out of your paycheck. The Court may choose to order a parent to pay child support through another way if it finds a good reason why income withholding is not appropriate.
Income also can be withheld if the child support payment is late. The Court uses the word “delinquent” for late payments. Support is considered delinquent if it is 8 days overdue. If you and the children get public assistance under Temporary Assistance to Needy Families (TANF), the child support payments must be made through CSED.
Notifying the Child Support Enforcement Division
If you are already getting services from CSED, or if you get public assistance under TANF, you must notify CSED that you have filed for a Dissolution of Marriage and/or Parenting Plan. The Parenting Plan packet that you can download from this website has a notice to CSED.
Every Child Support Order also must include a section about who will pay for the medical insurance and medical expenses of the minor children.
The general rule is that a parent who has medical insurance available through their employment must cover the children if the insurance is available at a reasonable cost. If both parents have health plans, they may both provide coverage for the children.
Sometimes the court will order both parents to pay premiums, deductibles, or other health care expenses based on percentages determined by the child support guidelines. For example, one parent may have to pay one-third of the expenses, while the other parent pays two-thirds. The obligation to provide medical insurance ends when the child support obligation ends.
You can read what the law says about medical and child support at M.C.A. § 40-5-805, M.C.A. § 40-5-806, M.C.A. § 40-5-807, and M.C.A. § 40-5-808.