Family Law

How do Judges Decide Child Custody in Montana

By Amy Castillo, J.D., University of Minnesota School of Law
Learn about the different kinds of custody and visitation, and how Montana judges decide custody cases.

Child Custody and Visitation in Montana

A divorce or break-up is devastating to the couple involved, but the impact it has on their children is worse by an order of magnitude. The life they knew is torn apart, and they suddenly have to start traveling from house to house to spend time with their parents while juggling their academics, social relationships, and extracurricular activities.

To protect their children and ease them into a new life, both parents will usually seek custody. But what do things like “custody” and “visitation” really mean?

What is the Difference Between Legal and Physical Custody?

When parents can’t agree about where the children should live or spend time, the court has to intervene and issue a custody and visitation order (known in Montana as a “parenting plan.”)

From the get-go, you need to understand that the word “custody” is very broad, and that there are several kinds of custody that a judge has to award, as follows:

  • Physical custody refers to where a child lives, spends a lot of time, and receives basic daily care.
  • Legal custody is about giving a parent a voice in a child’s upbringing. A parent with legal custody will give input and help make decisions about important issues in the child’s life. For example, parents with legal custody are involved in the child’s education, extracurricular activities, religious and spiritual affairs, cultural activities, and medical care.
  • Sole custody means that one parent has full physical or legal custody. A parent with sole physical custody has the children most of the time and assumes primary responsibility for their daily care, while the other parent spends smaller amounts of visitation time with the kids. On the other hand, a parent who has sole legal custody has complete authority to manage a child’s educational, religious, spiritual, cultural, and medical needs. Awards of sole legal custody are rare and usually happen when one of the parents is abusive or neglectful or has a substance abuse problem.
  • Joint custody is shared, meaning that both parents have nearly equal rights and responsibilities in child-rearing. Montana law favors joint custody, if possible. When a judge orders joint physical custody, the children typically spend an almost equal time at each parent’s residence, according to a set schedule. When a judge orders joint legal custody, both parents have an equal voice in making important decisions about the child life. One of the most important things to know about joint custody is that the parents have to be willing and able to cooperate with each other or a judge will not award joint custody. If there’s an extensive history of serious arguments and problems, there won’t be a joint custody award.

It’s very rare for one parent to get complete physical and legal custody of a child. Montana law strongly encourages children to have a meaningful relationship with both parents. Absent some kind of serious abuse or neglect, parents will usually share custody to one degree or another.

What Is Visitation?

Absent allegations of neglect or abuse, judges will issue custody orders that ensure that children have a relationship with each parent. The parent who has less physical custody time is awarded “visitation,” which is known as “parenting time” in Montana. Parenting time is a court-ordered, scheduled time when a non-custodial parent is able to be with the kids physically or, sometimes, call them on the telephone or speak through real-time video call apps like Skype or FaceTime.

The most common scenario is that a parent who doesn’t have sole custody, but does have joint legal custody is able to pick up the kids and keep them for meals, events, and overnights, and is able to spend some time with them during the school week. The judge usually lets this kind of non-custodial parent take the children for several weeks in the summer. Both parents are governed by the visitation schedule the judge imposes, although the parent with sole physical custody can always agree to give the non-custodial parent more visitation time. If that happens, it’s wise to document the situation by asking the court to adjust the old schedule to match the new one.

The judge will usually divide up holidays on an alternating year-to-year basis to make sure that children are able to spend special holiday time with each parent.

If a parent who is entitled to visitation abuses drugs or alcohol or has a history of abuse or neglect, the court will have to structure its custody and visitation order to make sure the kids are protected. In these situations, the judge will often start by ordering visitation to be supervised by a family member or someone else who can make sure the child is safe. The judge may also require supervised visitation to occur at a neutral place, like a restaurant or park. It’s rare for the court to suspend visitation completely, and that only happens in cases where visitation would pose an immediate and major threat to the child.

Can Parents Agree to Their Own Custody and Visitation Arrangements?

Family court judges typically encourage parents to resolve their custody and visitation disputes on their own, and in fact, it’s always better to reach a compromise on custody if you can. Once the courts are involved, your child’s fate will be decided by a judge who’s a stranger to you and your family. The court can issue a rock-solid legal order that applies the law to the facts, but the judge still doesn’t know you personally and you might be terribly dissatisfied with the decision. On the other hand, if you and your ex can reach an agreement, you retain control over your life and you aren’t governed by a piece of paper.

If possible, if you and your ex disagree about custody and visitation, you can try child custody mediation for help in resolving the disputes. It’s also always advisable to consult with an experienced family law attorney, but if you’re self-represented, the Montana Judicial Branch maintains a library of forms and explanatory resources that you can use to make your case.

How Do Judges Decide Custody Issues?

The most important consideration for Montana courts is what’s best for the child. The first thing the judge will look at is evidence about how well each parent is able to make decisions and perform functions that are necessary for the child’s care and growth. Parenting functions include things like:

  • whether a parent maintains a loving, stable, consistent, and nurturing relationship with the child
  • whether each parent attends to the child’s basic, daily care needs by:
  • feeding the child
  • providing physical care
  • ensuring the child’s development is on-track
  • making sure the child experiences spiritual growth and development
  • providing health care and day care, and
  • engaging in other activities that are appropriate to the child’s developmental level and are consistent with the parents’ social and economic circumstances—for example, playing ball with a basketball-crazy son or working through algebra problems with a math-adverse daughter.
  • whether each parent provides a good education, including remedial or other special instruction, if necessary
  • ensuring that the child carries on relationships with other people (e.g., the other parent, siblings, grandparents, and other important people in the child’s life), and
  • generally using good judgment about the child’s welfare in a way that’s consistent with the child’s developmental stage and both parents’ financial and social circumstances.

The court will look at evidence about how well each parent performs these basic parenting functions and will then apply a best interests standard to determine how to divide up custody. The judge is obligated to order the custodial arrangement that’s best for the kids’ well-being. To make that decision, the court looks at all of the following factors:

  • each parent’s wishes
  • the child’s wishes
  • the relationships the child has with parents, siblings, and other important people in the child’s life
  • how well the child is adjusted to home, school, and the community
  • the mental and physical health of the parents, the child, and any other people who play a significant role in the child’s life
  • whether either parent has physically abused, or even threatened to abuse, the other parent or the child
  • whether either parent is chemically dependent (meaning, addicted to drugs or alcohol)
  • how desirable it is to maintain continuous and stable care for the child
  • each child’s unique developmental needs
  • whether a parent had the ability to pay the child’s birth-related costs or child support, but willingly chose not to do so and this was harmful to the child
  • whether the child currently has frequent and continuing contact with both parents, and
  • whether the parents have fought over custody and visitation so bitterly that one or both of them are hurting the child emotionally or making joint custody unfeasible.

As you can see, Montana courts do take into account whether a parent is failing to pay for the child’s support and expenses, but only to the extent that the delinquent parent’s failure to pay is hurting the child.

In one key case from Montana’s family court system, a married couple divorced a few years after their daughter was born. The husband and wife were financially entangled and the divorce grew ugly. The wife was awarded sole physical custody. The court reasoned that the wife should have custody because the daughter had spent the “great majority” of her life with her mother and they had a loving, continuous bond, whereas the husband had moved away, only visited sporadically, had taken his daughter to bars during his visitation, and likely had a drinking problem. In addition, the husband and wife were almost totally unable to cooperate with each other. There were “numerous instances of hostility, meddling, and harassment.” When two parents can’t cooperate, a joint custody award is not in the child’s best interest. For all of those reasons, the Montana Supreme Court decided that it was proper for the mother to have sole physical custody.

Modification of Custody and Visitation

Even though the court will give you a “final” custody and visitation order, you may find that your circumstances later change in such a way that the original order no longer works for you and your children. If that happens, you’ll have to file a motion to modify, or change, the existing order. Unless it’s an emergency, the judge will normally make you wait a while between the issuance of the final order and filing a motion for a change of custody.

The parent who asks for a modification has to prove that there has been a change in circumstances since the final order was issued. The change has to be substantial. If that’s proven, the court will then decide whether modifying custody or visitation is in the child’s best interests.

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