Basic Montana Custody Laws for Unmarried Parents
Montana law allows for two types of primary residential schedules: (1) Shared; or (2) Sole. Shared residential gives both parents equal parenting time with the minor child. Sole residential gives primary parenting time to only one parent with limited parenting time by the other parent. As noted, "sole" means that only one parent is primarily responsible for the children and is typically awarded 150 overnights per year with minor children.
In concert with its laws on parenting plans, Montana has clearly defined terms. The terms we will reference are: "residential parent," "non-residential parent," "parenting plan," and "parenting order . " The resident parent is the parent with whom the children reside the majority of the time. The non-residential parent is the parent who does not have the majority of the residential time with the minor child. A parenting plan is the written description of how the parents will allocate the responsibilities of being parents. The State also encourages parents to communicate regarding the best interests of the child and to develop their own parenting plans at the start. However, should a parenting plan be unnecessary, the State also allows for a parenting order which is a court’s decision as to the responsibility of each parent with regard to their child.
Rights of Unmarried Parents Under Montana Law
Legal rights for unmarried parents of children born out of wedlock are more complicated than those for married parents. Because unmarried parents do not share a legal relationship until a court issues an order establishing paternity, there is often a larger issue in regard to establishing custody or visitation rights in the best interest of the child. Mothers of a child born out of wedlock do have rights under the law, as they do not need to establish their status as the biological or legal parent of the child, as in the cases of unmarried fathers. In Montana, a father has no rights with regard to a child born to unmarried parents without a court order establishing paternity. The father must file a Petition to Establish Paternity. Under Montana law, he has two options for filing a claim for his rights as the father of the child: Both of these options involve a Petition to Establish Paternity. Typically, a petition involves asking a judge to give specific permission or seek restitution for unpaid financial issues. In this case, the father would be seeking to establish legal rights as the biological and legal father of the child in order to request visitation rights and/or participate in legal decision making on behalf of the child. After a DNA paternity test confirms that the individual is the biological father of the child, the father has the right to participate in all aspects of parenting, including: The Court may determine that in the best interest of the child that the father does not have shared legal custody, visitation rights, or decision-making power over the child. This determination will require both parties to establish their position on the issue and how their requested parenting plan will benefit the child. The burden of proof rests on the individual requesting the specific arrangement, whether it is the mother or the father.
The Child’s Best Interests Standard in Custody Cases
When it comes to custody decisions for unmarried parents, the paramount principle for Montana courts is the best interests of the child. Montana law requires the court to consider all relevant factors when deciding what is in the child’s best interests. The statute lists factors the court must look at and the factors include:
- (1) the wishes of the child as to the child’s residential arrangements;
- (2) the interaction and interrelationship of the child with the child’s parents, siblings, and any other person who may significantly affect the child’s best interests;
- (3) the potential of the parents to exercise parental care and control and to provide for the child’s physical, mental, and emotional needs;
- (4) any physical or mental impairments of the parents, the child, or members of the child’s household that may seriously affect the child’s best interests;
- (5) the relationships of the child with the child’s parents, siblings, and other significant adults and the effect on the child’s emotional development;
- (6) any acts of domestic violence by either parent or other person within the household;
- (7) the chemical dependency of a parent or member of the household;
- (8) whether the proposed residential arrangements are stable and will continue;
- (9) past and potential abuse by one parent of the other parent;
- (10) whether one parent has denied or prevented contact between the child and the other parent or has intentionally kept the child from participating in an appropriate extracurricular activity;
- (11) the geographic distance between the parents’ residences, the cost and difficulty of transporting the child, the travel time, and the availability and cost of public and private transportation;
- (12) the analyses of all parental fitness factors, including, but not limited to, those specified in 40-4-228(2); and
- (13) the developmental needs of the child, giving appropriate weight to each factor.
Montana courts can also consider any other factors it finds relevant.
Paternity Establishment in the State of Montana
"Paternity" is the legal determination of the identity of a child’s biological father. While there are many situations where unmarried parents are able to resolve issues such as custody and visitation based on the nature of their relationship, in some cases it simply will not be possible. The burden then shifts to the parent which has not lived with the child to file a separate petition with the court to establish paternity. The laws as to such actions are formally set forth in 40-4-217, MCA. When there is a dispute, a genetic test may be required in accordance with 40-4-218, MCA. If paternity is established – either voluntarily or by court action – that father will have rights and responsibilities with regard to the child. The court will have the right to address such things as parenting plans and child support. If the father has established that he is the child’s biological legal parent, the proceeding set forth in 40-4-204, MCA will apply to parent-child relationships, visitation rights, residential placement and parenting plans. Any issues concerning support of a child are covered in sections 40-5-201 to 40-5-241, MCA.
Establishing a Parenting Plan with Your Co-Parent
Understanding Montana Custody Laws for Unmarried Parents
While the thrust of this blog post is to educate unmarried parents about Montana’s custody laws, factors such as designating a primary caregiver or support issues should be addressed in every parenting plan if the unmarried parents are going to be co-parenting. The primary caregiver designation is important for a number of reasons including but not limited to Medicaid and tax considerations. Imagine that an unmarried couple have twin daughters. Mom is their primary caregiver who attends all of their doctor’s appointments, school meetings, buys their clothing and supplies, and takes them to all their extra-curricular activities. Dad likes to take them out on weekends but otherwise doesn’t have much to do with them. If Dad suddenly gets awarded primary custody of the girls, things are going to get messy for Mom because Dad is not going to have the slightest clue about what it takes to care for twin six-year-olds. Conversely, say that Dad is the primary caregiver. Mom may want to offer some resistance to supporting Dad if it appears that she is not truly able to participate in her children’s lives . If it is not clear that Mom has been participating in her children’s daily lives, she may find herself out of luck when it comes to getting equal parenting time down the road. She may even have to walk away with significantly less parenting time than Dad. Identifying just who is the primary caregiver and who is not and why in your parenting plan or agreement is critical. Digging your heels in on an issue like this could cost you years of parenting time. And remember, just because you signed an agreement giving you primary caregiving status, doesn’t mean that the issue cannot be revisited at a later date. In addition, keep in mind that if the agreed or awarded primary caregiver moves outside of the state the other parent is going to seek a modification and be the one to leave the state with the children. The parenting plan itself can be negotiated between attorneys and/or the parents. If you cannot reach an agreement on all of its components, the Court will hold a hearing and decide contested issues. The majority of parents do report being satisfied with their parenting plans once they are fully drafted.
Dispute Resolution and Mediation
Mediation and Alternative dispute resolution (ADR) have found their way into the Montana court system. To address the cascade of cases in front of judges on divorces, adoptions, name changes, etc., Montana today has a referral system for certain cases that leads to either the use of mediation or other alternatives to a litigated remedy.
The court may refer parties to mediation for the purpose of obtaining assistance in settling supporting parenting plans in deprivation actions, divorce actions, custody actions, visitation actions, and proceedings for temporary relief in such actions. Whenever the court orders mediation, the court shall advise the parties of the following:
Mediation takes place before the judge. The judge has already decided that there is an issue worthy of mediation. If you’re concerned that information otherwise covered by the law will be discussed in the mediation, the statute also requires that:
Any communication relating to settlement or compromise made in the course of the alternative dispute resolution process must be kept confidential if at the outset of the process the participants agree to confidentiality.
In addition, agencies are formed to provide these services to people in need. Typically, a court picked "guardian ad litem" (GAL) will be the mediator. The idea here is to provide a family system expert the chance to resolve issues before they become more costly and burdensome on the state.
The jury award system we use today puts pressure on the person with the deepest pockets. It was never designed to be a system that serves to settle all disputes.
Montana Resources and Referrals for Unmarried Parents
Montana offers several resources and programs to assist unmarried parents who are navigating the complexities of custody laws. Many legal aid organizations provide free or reduced-cost representation to low-income parents, including the Montana Legal Services Association and the Montana Legal Services Research Library. The court also maintains a self-help center for individuals who are self-represented, providing forms, instructions, and a resource guide for those navigating the legal process. Community-based organizations and nonprofits are another avenue for assistance. Resources like the Montana Parent Help Line offer statewide support, answering questions and connecting parents with local services . Organizations like the Parent Center of Golden Triangle offer parent support groups in several regions across Montana. Online resources such as the Montana Parent Information Network and the Montana Department of Public Health & Human Services also exist to help parents understand their rights and responsibilities while providing various local support resources. In addition, many Montana communities have local-based family services, including parenting classes, counseling services, and general family support networks that can help if you are struggling as a single, unmarried parent. Although support is available to help you address these issues, Montana courts will prioritize your child’s best interest.