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Montana law no longer uses the terms "custody" or "visitation." Instead, the court uses the term "Parenting" and requires a Parenting Plan in all cases involving minor children (divorce, paternity, etc.) to promote the idea that both parents should remain involved in the child's life.
Equal Standing: The law recognizes the constitutional rights of both parents to the custody and care of their children. The mother does not automatically have preference over the father.
The Best Interests of the Child: This is the paramount standard in Montana law. The court's primary duty is to determine the parenting arrangement that best meets the needs of the children, and all factors are considered through this lens.
Factors for Determining a Parenting Plan
A mother's rights are determined by how a court assesses the following factors in relation to her and the child's best interests (Montana Code Annotated $\S 40-4-212$):
Factor
Description & Consideration
Wishes of the Parents: The court considers the mother's wishes for her child's living arrangements and contact schedule.
Child's Wishes: The court considers the child's preference, especially as they get older and more mature.
Frequent & Continuing Contact: The law presumes it is in the child's best interest to have frequent and continuing contact with both parents.
Continuity and Stability of Care: The court looks at which parent has historically provided the most stable care environment.
Interaction and Interrelationship: The quality of the child's bond with the mother, siblings, and any other significant person.
Mental and Physical Health: The health of the mother and all other individuals involved.
Abuse or Neglect: Any evidence of physical abuse or the threat of abuse by the mother or against the mother is a serious factor.
Chemical Dependency: Any history of drug or alcohol abuse by the mother.
The Parenting Plan addresses two main areas, similar to the old terms of custody:
Legal Parenting (Legal Custody/Decision-Making): This is the right and responsibility to make major decisions regarding the child's welfare (e.g., education, non-emergency medical care, religious upbringing).
Courts often favor Joint Legal Parenting, where both parents share this decision-making authority.
Residential Parenting (Physical Custody/Visitation): This determines where the child lives and the residential schedule.
Residential schedules can range from a near-equal 50/50 shared schedule to one parent having the children most of the time, with the other having regular contact/visitation (often referred to as "parenting time").
Child Support and Parenting Time are Separate: A parent cannot withhold parenting time (visitation) because the other parent failed to pay child support, and vice-versa. The exclusive remedy for a violation is to apply to the court for sanctions.
