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What is a Response to Petition for Parenting Plan?

Authored By: Montana Legal Services Association (MLSA) LSC Funded
Contents

 

In this article you can learn:

  • What you can do if you are served with a Petition for Parenting Plan
  • How the Court decides parenting
  • What happens after you file a Response
  • And, how to get free court forms to file a Response to Petition for Parenting Plan

 

Introduction  

       The information and court forms on this website are only for Montana. Each state has different laws and court forms. If you have a question about laws outside of Montana, find legal help in your state

This article is right for you if you have been served with a Petition for Parenting Plan. You only have 21 calendar days, starting the day after you were served, to file a Response with the Clerk of District Court. 

If you miss your deadline, you may still be able to file an Response. You will want to check with the Clerk of Court first to see if the Court has entered a Default Judgment. You may still be able to file your Response if the Court has not entered a Default Judgment. If the Court entered a Default Judgment, you'll need to file paperwork showing that you had good reason to miss your deadline and to ask the Court to Set Aside the Default Judgment. If the Court finds you had good reason, it may allow you to file an Response. It would be a good idea to talk to a lawyer if you missed your deadline

If you haven’t been served but want to start a Parenting Plan lawsuit, you’ll want to read our article What is a Petition for Parenting Plan?

Just want the court forms? You can skip down to the Take Action section below to find the free court forms. It’s a good idea to read this article before filling out your forms if you have any questions about your rights or what to expect. 

 


What if the other parent has hurt me or the children? 

There are a few important things to know if you are leaving a violent or abusive relationship. The end of a violent relationship is sometimes the most dangerous point for the victim and children. There may be free legal and non-legal help for people leaving a domestic violence relationship. It is a good idea to come up with a safety plan. You may also want to look into getting an Order of Protection. It is important to know that the Court may base some of its decisions on safety concerns for the parents and/or children. 

 


                     

Before You File

 

In this section, we’ll talk about:

 

Legal Terms

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. 

If you have been served with a Petition for Dissolution of Marriage, you’ll want to learn about a Response to Petition for Dissolution of Marriage

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. If you were served with a Petition for Parenting Plan, you are the Respondent. You can get a chance to weigh in on what you think of the Petitioner’s Proposed Parenting Plan by filing a Response to Petition for Parenting Plan. You may ask for a different Parenting Plan by filing your own Proposed Parenting Plan with your Response. You must file a Response within 21 days after getting served with the Petition for Parenting Plan.

The Petition you were served with is not a Court Order. 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 children, and other things as well. You get to participate in that Court process by filing an Response. The Parenting Plan lawsuit ends when the Court orders a Final Parenting Plan.

 

How does the Court decide parenting?

The Court does not decide parenting based on who filed a Petition first. 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 interest of the child at Montana Code Annotated (M.C.A.) § 40-4-212. Montana Code Annotated are the laws of Montana. The “§” is a symbol that means section. 40 is the Title number. 4 is the Chapter number. And 212 is the Part number. If you have questions about the best interest of the child, talk to a lawyer.  

To learn more about how the Court decides parenting time, read our article What is a Parenting Plan? 

 

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 see what your local Court considers when deciding parenting. The Court will likely base its decisions on its local guidelines. 

 


 

After You File

 

In this section, we’ll talk about:

 

What Happens After you File Your Response

You only have 21 calendar days, starting the day after you were served, to file a Response with the Clerk of District Court. If you and the other parent do not agree on the Parenting Plan, the case becomes contested

The legal term for a parenting lawsuit in Montana is a Parenting Plan Proceeding. A Parenting Plan Proceeding may require one or more Court hearings, depending on how much the parents disagree. 

The Court may issue a Scheduling Order after you file your Response if you and the other parent disagree on parenting.  A Scheduling Order lays out a timeline and requirements for the parents to move towards a final hearing. Not all Parenting Plan Proceedings go to final hearings. Sometimes parents can come to an agreement during a contested case. The Court will often order the parents to Mediation to settle differences before the final hearing. 

 

Mediation

Mediation is a way to solve your problems out of court. The Court may order mediation more than once. Both parents are allowed to have a lawyer with them at mediation. 

The mediator is the person that runs the mediation. A mediator is a trained neutral third party who does not take sides. A mediator tries to help you and the other parent come to an agreement that you can both live with and can be filed and ordered by the court. 

 

Important: Mediation may not be right for you if:

  • There is or has been domestic violence in the relationship; or, 
  • One parent has physically, emotionally, or sexually abused the children.

If you don’t think mediation is right for you because of any of the above, you will need to notify the Court. To notify the Court:

  • Check the Order for Mediation for guidance on what to do if mediation is not appropriate,
  • Ask the Clerk of Court or Self Help Law Center if they have a local form to ask the Court to excuse you from mediation; and/or
  • File a written Motion that says why mediation is not right for you. In your Motion, you will need to refer to the specific law saying when mediation is not appropriate. You can find that law at M.C.A § 40-4-301

 

Important: Sometimes people decide to do mediation even if they or their children have experienced abuse. In these cases, each parent will need to provide written, informed consent to mediation. You can check with the Clerk of Court or Self Help Law Center to see if they have a form for giving consent to mediation in these cases.

 

Asking the Court to make a decision or take action

During a legal proceeding, either party may file Motions to ask the Court to make a decision or take some action. If the other parent does not agree with the Motion, they may file a Response to Motion to explain why they disagree. In general, after a parent files a Motion, the Court will schedule a hearing to hear from both parents and make a decision. 

You may also file a Brief in Support of your Motion. The Brief is where you make a legal argument on why the Court should consider Motion. You must base your legal argument on what the law says and the facts of your case. The Brief will talk about facts in the Affidavit. An Affidavit is a sworn statement only about facts. You do not make an argument in an Affidavit. A lawyer can help you decide what information to put in your Motion, Brief, and Affidavit. 
 

Interim Parenting Plan

As we said earlier, filing a Petition for Parenting Plan does not establish a Parenting Plan right away. It only starts a Court process to decide parenting responsibilities. Sometimes a Court will order an Interim Parenting Plan during the Parenting Plan Proceeding. 

You or the other parent may ask the Court for an Interim Parenting Plan if you need a temporary parenting schedule during the Parenting Plan Proceeding. You may want an Interim Parenting Plan if:

  • The children are in danger;
  • You fear one parent will run away with the children; or,
  • You and the other parent cannot agree on parenting time during the Parenting Plan Proceeding. 

You ask the Court for an Interim Parenting Plan by filing a Motion for Interim Parenting Plan and an Affidavit

 

Going to Court

You always file paperwork for a Parenting Plan case with the Clerk of District Court. The Court may schedule one or more hearings to address issues brought up in paperwork filed in the Parenting Plan Proceeding or at earlier hearings. 

A hearing is when both parents will meet with the Judge in a formal setting. The Court will issue an Order Setting a Hearing. Usually, the order will have information about what the hearing will be about. The order will also say the time of the hearing and how long it will last. 

Make sure you carefully read and understand the order scheduling the hearing and any Motions either parent may have filed asking for the hearing. You will want to make sure that you stick to the point of the hearing and not bring up other issues unless they are related. Each parent will have the opportunity to explain their side of the story. At some hearings, the Judge will allow each parent (or their lawyer if they have one) to ask the other parent questions. The Court calls this “cross examination.”

The Judge may also ask both parents questions about the facts they stated and legal arguments they made in their court paperwork or during the hearing. 

To learn more about what happens during a Parenting Plan lawsuit read our article What is a Parenting Plan?

 

What Happens if You Don’t File a Response 

You have 21 days after the day you were served to file a written Response to the Petition for Parenting Plan. If you do not file a Response by the deadline, the other parent can ask the Court to finalize their Parenting Plan without your input. That would mean that the Court may order a Parenting Plan that you must follow without you having a say in what should be in it.  It would be a good idea to talk to a lawyer if you missed your deadline.

 


 

Take Action

 

Legal Forms

 

Legal Help

  • The State Bar Lawyer Referral Service may provide you with contact information for attorneys who provide the type of assistance you are seeking, for a fee. You can contact the State Bar Lawyer Referral Service at (406) 449-6577 or montanabar.org
  • Montana Legal Services Association (MLSA) provides free civil, non-criminal legal help to eligible clients. Learn more about how to apply for free legal help in Montana
  • If you qualify for help from MLSA, you may be able to get free legal advice from a volunteer attorney by email using Ask Karla
  • Contact your nearest Self Help Law Center for free legal information and forms.

 


 

Last Review and Update: Apr 30, 2019
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