What is a Petition for Parenting Plan?

Introduction 

In this article you can learn:

• What you should know before you file
• How the Court decides parenting
• What happens after you file
• And, find free court forms to file a Petition for Parenting Plan

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.

If you have been served with a Petition for Parenting Plan, this article is not right for you. You’ll want to read our article on What is a Response to 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. 

In this section, we’ll talk about:

• Legal terms you’ll need to know 
• Who can file a Petition for Parenting Plan in Montana 
• Where you file a Petition for Parenting Plan 
• How the Court decides Parenting in Montana 

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 and the other parent are getting a divorce and you have minor children, you’ll want to go to our article on Petition for Dissolution with Children.

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 gets a chance to weigh in on what they think of the Petitioner’s Proposed Parenting Plan by filing an Answer to Petition for Parenting Plan. The Respondent may ask for a different Parenting Plan by filing their own Proposed Parenting Plan with their Answer. The Respondent must file an Answer within 21 days after getting served with the Petition for Parenting Plan.

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 M.C.A. § 40-4-212. 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 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. 

In this section, we’ll talk about:

• What happens if the other parent files an Answer 
• Mediation
• Asking the Court to make a decision or take an action
• Interim Parenting Plans
• Going to Court 
• What happens if the other parent does not file an Answer

When the Other Parent Files an Answer

When you file a Petition for Parenting Plan, the other parent will have 21 calendar days to file a written Answer to your Petition. They must serve you with their answer. If the other parent disagrees with your 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 the other parent files their Answer. 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 parties can come to an agreement during a contested case. The Court will often order the parties to Mediation to settle differences before the final hearing.

Mediation

The Court will often order the parents to mediation. The Court may order mediation more than once. Mediation is a way to solve your problems out of court. 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 child.

If you don’t think mediation is right for you because of issues mentioned 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 other 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 with the Motion. In general, after a parent files a Motion, the Court will schedule a hearing to hear from both parents and make a decision. 

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 can 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. 

You will want to make sure that you stick to the point of the hearing and not bring up other issues. Make sure you carefully read and understand the order scheduling the hearing and the Motion either parent filed asking for the hearing. 

The Judge may question both parents about the facts they stated and legal arguments they made in their court paperwork. You will have an opportunity to testify and explain your side of the story as well as present evidence. You (or your lawyer if you have one) will get the chance to question the other parent. When one parent or that parent’s lawyer questions the other parent that is called cross examination. The other parent (or their lawyer if they have one) will then get a chance to do the same.

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

When the Other Parent Doesn’t File an Answer 

The other parent has 21 days after the day they are served to file a written Answer to your Petition for Parenting Plan. If they do not file an Answer by their deadline, you can ask the Court to finalize your Parenting Plan. To do that, you’ll file a Request for Hearing and Default. The forms for this are included in the packets that you can download from this article. 

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. 

Legal Forms

We have two kinds of free court forms that you can use to file a Petition for Parenting Plan:

• An online interactive form, or
• A write-in-the-blank form.

Both forms are the same, just how you fill them out is different. 

Write-in-the-blank forms

To use the write-in-the-blank forms, you’ll need to:

1. Follow the link below to Go to Write-in-the-Blank Petition for Parenting Plan 
2. Print the forms
3. Fill them out
4. File with the Clerk of District Court

Online interactive forms

To use the online interactive forms, you’ll need to:

1. Follow the link below to Go to Interactive Petition for Parenting Plan
2. The link will take you to a new screen
3. You’ll need to start the interview
4. Complete the interview
5. At the end of the interview, download and print your forms
6. File them with the Clerk of District Court