Montana
Child Visitation Laws

Montana Child Custody Guide :: Table of Contents

What Is Child Visitation?
Child Visitation Law Table
Montana Child Visitation Law Summary
Child Visitation For Grandparents, Relatives, and Third PartiesMontana
Montana Child Visitation Law Text

Visitation General Information

What is child visitation?

In the context of a child custody case, visitation is defined as the rights for a non-custodial parent to see their child, or as temporary custody that's been granted for a period of time to an otherwise non-custodial parent or relative.

In general, courts in Montana assume that it is beneficial for both biological parents of a child to have shared custody or visitation, unless it is shown to be against the child's best interests. A biological parent who is denied custody may be awarded visitation rights to provide for a relationship between the parent and child.

Visitation by grandparents, family members, or other third-parties is less clear cut in Montana, and nationwide. While there are state guidelines regarding third-party visitation in certain situations, these laws are frequently challenged.

Above all else, courts in Montana strive to make custody and visitation decisions that are "in the best interests of the child". The court handling each individual visitation case has significant flexibility in determining what arrangement is in the child's best interests. You can read about Montana's visitation guildelines on this page.

Montana Visitation Court Considerations Table

Step Parents
Grandparents Generally
Grandparents After Death of child
Grandparents After Divorce Of Child
Grandparents Child Never Married
Any Interested Party
After Termination Of Parental Rights

Montana Child Visitation Summary

Montana law states that a biological parent of a minor child may request visitation rights as part of an open divorce, parentage or custody case. A person may also file a petition for visitation on its own.

The court will decide a request for visitation based on whether granting a parent visitation would be in the "best interests of the child."

What is considered in a child's "best interests" are outlined under the custody and visitation statute which indicate the following factors are relevant to this type of decision which state:

the wishes of the child's parent or parents

the wishes of the child

the interaction and interrelationship of the child with the child's parent or parents and siblings and with any other person who significantly affects the child's best interest

the child's adjustment to home, school, and community

the mental and physical health of all individuals involved

physical abuse or threat of physical abuse by one parent against the other parent or the child

chemical dependency, or chemical abuse on the part of either parent

continuity and stability of care

whether a parent has knowingly failed to financially support a child that the parent is able to support, which is considered to be not in the child's best interests

whether the child has frequent and continuing contact with both parents

A court may award visitation rights to a grandparent if it is in the child's best interest.

A court may award visitation rights if the court finds that visitation is in the child's best interest. Adoption cuts off the visitation rights of grandparents unless adoption is granted to a step-parent or another grandparent.

Montana Child Visitation For Grandparents, Relatives, and Third Parties

In the state of Montana, there are a number of laws regarding child visitation regarding visitation for third-parties other than the biological parents of the child. While state laws regarding third-party visitation have been frequently been challenged in courts, they are a good indication of Montana's positions regarding non-parental visitation rights.

Visitation Rights Of Grandparents In Montana:

Montana has special statutes regarding the child visitiation rights of grandparents under different circumstances. Under state law, the grandparents of children may obtain visitation while the parents are alive, regardless of the parent's marital status.

Grandparents, Visitation In General

✓ YES

Grandparents, After Death Of Parent

✗ NO

Grandparents, After Divorce Of Parent

✗ NO

Grandparents, Parent Never Married

✗ NO

Regardless of state presumptions regarding grandparent's visitation rights under specific circumstances, a Montana court may allow or prevent visitation rights in any situation based on the best interests of the child.

Visitation Rights Of Other Parties In Montana:

Are step-parents granted visitation rights in the state of Montana?

Generally it is an uphill battle for step-parents seeking visitation rights for a step-child, especially if the biological parents of the child are alive and are opposed to the visitation.

Under Montana law, legal provisions do exist to grant child visitation rights to step-parents under certain circumstances, so visitation can be readily applied for. In all cases, third-party visitation rights are more likely to be granted by the court if they are deemed to be in the best interests of the child.

Can other interested parties or relatives be granted visitation rights to a child in Montana?

Under state of Montana law, it may be possible for other individuals to be granted visitation rights by the court. This might include relatives other than the child'a parents, previous caregivers, etc.

Can parents be granted visitation rights after termination of parental rights or adoption in Montana?

In the state of Montana it may not be possible to be granted visitation rights after losing parental rights or giving up a child for adoption. This is the case with both biological parents and previous guardians.

| State Law Official Text

Section(s):
MONT. CODE ANN. § 40-9-102 MONT. CODE ANN. § 40-4-228

40-9-102. Grandparent-grandchild contact. (1) Except as provided in subsection (8), the district court may grant to a grandparent of a child reasonable rights to contact with the child, including but not limited to rights regarding a child who is the subject of, or as to whom a disposition has been made during, an administrative or court proceeding under Title 41 or this title. The department of public health and human services must be given notice of a petition for grandparent-grandchild contact regarding a child who is the subject of, or as to whom a disposition has been made during, an administrative or court proceeding under Title 41 or this title.

(2) Before a court may grant a petition brought pursuant to this section for grandparent-grandchild contact over the objection of a parent whose parental rights have not been terminated, the court shall make a determination as to whether the objecting parent is a fit parent. A determination of fitness and granting of the petition may be made only after a hearing, upon notice as determined by the court. Fitness must be determined on the basis of whether the parent adequately cares for the parent's child.

(3) Grandparent-grandchild contact may be granted over the objection of a parent determined by the court pursuant to subsection (2) to be unfit only if the court also determines by clear and convincing evidence that the contact is in the best interest of the child.

(4) Grandparent-grandchild contact granted under this section over the objections of a fit parent may be granted only upon a finding by the court, based upon clear and convincing evidence, that the contact with the grandparent would be in the best interest of the child and that the presumption in favor of the parent's wishes has been rebutted.

(5) A person may not petition the court under this section more often than once every 2 years unless there has been a significant change in the circumstances of:

(a) the child;

(b) the child's parent, guardian, or custodian; or

(c) the child's grandparent.

(6) The court may appoint an attorney to represent the interests of a child with respect to grandparent-grandchild contact when the interests are not adequately represented by the parties to the proceeding.

(7) The court may appoint a guardian ad litem to represent the best interests of a child with respect to grandparent-grandchild contact.

(8) This section does not apply if the child has been adopted by a person other than a stepparent or a grandparent. Grandparent-grandchild contact granted under this section terminates upon the adoption of the child by a person other than a stepparent or a grandparent.

(9) A determination pursuant to subsection (2) that a parent is unfit has no effect upon the rights of a parent, other than with regard to grandparent-grandchild contact if a petition pursuant to this section is granted, unless otherwise ordered by the court.

40-4-228. Parenting and visitation matters between natural parent and third party. (1) In cases when a nonparent seeks a parental interest in a child under 40-4-211 or visitation with a child, the provisions of this chapter apply unless a separate action is pending under Title 41, chapter 3.

(2) A court may award a parental interest to a person other than a natural parent when it is shown by clear and convincing evidence that:

(a) the natural parent has engaged in conduct that is contrary to the child-parent relationship; and

(b) the nonparent has established with the child a child-parent relationship, as defined in 40-4-211, and it is in the best interests of the child to continue that relationship.

(3) For purposes of an award of visitation rights under this section, a court may order visitation based on the best interests of the child.

(4) For purposes of this section, voluntarily permitting a child to remain continuously in the care of others for a significant period of time so that the others stand in loco parentis to the child is conduct that is contrary to the parent-child relationship.

(5) It is not necessary for the court to find a natural parent unfit before awarding a parental interest to a third party under this section.

(6) If the parent receives military service orders that involve moving a substantial distance from the parent's residence or otherwise have a material effect on the parent's ability to parent the child for the period the parent is called to military service, as defined in 10-1-1003, the court may grant visitation rights to a family member of the parent with a close and substantial relationship to the minor child during the parent's absence if granting visitation rights is in the best interests of the child as determined by 40-4-212.

Montana Child Visitation Laws

Visitation Rights Of Grandparents In Montana:

✓ YES

✗ NO

✗ NO

✗ NO

Visitation Rights Of Other Parties In Montana:

Montana
Child Visitation Laws