Area of Law:
When a couple divorces and there is a minor child involved, the divorce decree will specify who has physical custody as well as legal custody of the child. Physical custody determines where and with whom the child will live. Legal custody specifies who has the legal right to make important decisions about the child related to issues such as education, religion, medical issues, and discipline. Spouses often reach an agreement regarding child custody on their own, but if they do not, a Montana court will intervene and establish custody arrangements based on the best interests of the child. For a complete explanation of divorce and custody laws in the state of Montana, go to lawyers.com.
There are typically several different custody arrangements that may be made for children of divorced parents. In most cases, courts will award physical custody to one parent with whom the child will live most of the time. The parent with physical custody, or the custodial parent, often shares legal custody, or the right to make decisions regarding the child, with the non-custodial parent. Many child custody arrangements involve joint custody in which the child spends a relatively equal amount of time with each parent.
In Montana, child custody is known as parenting, and parenting plans are the state’s version of custody arrangements. According to Montana law, sole or joint parenting is awarded based on the best interests of the child and the consideration of the following factors:
- The preference of the child
- The wishes of the parents
- The child's adjustment to his or her home, school, and community
- The mental and physical health of all individuals involved
- Any history of child or spouse abuse, or threats of abuse
- Any chemical dependency or abuse by a parent
- The relationship of the child with the parents, siblings, and other significant family members
- The continuity and stability of the child's care
- The developmental needs of the child
- Whether a parent has failed to pay any of the child's birth-related costs
- Whether the child has frequent and continuing contact with both parents (a consideration of any spousal or child abuse by either parent or anyone residing in a parent's household is also considered)
- Whether a parent has knowingly failed to support the child
- Any adverse effects on the child resulting from one parent's continuous and annoying efforts to amend parenting plans
According to Montana code, the parents must submit a parenting plan to the court. They may choose to submit a temporary or "interim" parenting plan. When Montana courts consider parenting plans, a parent's sex is not to be considered.
In Montana, a parent who intends to change residences must provide written notice to the other parent. If a parent's change of residence will significantly affect the child's contact with the other parent, notice must be served personally or through certified mail no less than 30 days before the proposed change in residence, and it must include a proposed revised residential schedule. The failure on the part of the parent who receives the notice to respond or seek amendment of the residential schedule within the 30-day period constitutes acceptance of the proposed, revised, residential schedule.