Montana Custody and Visitation Law
Custody and Visitation for Lesbian, Gay and Bisexual Parents
There are no published cases dealing with lesbian, gay or bisexual parents. State law, however, does not seem to permit the consideration of factors that do not affect the best interests of the child to be used in custody and visitation determinations.
Montana law states: “The court shall determine the parenting plan in accordance with the best interest of the child. The court shall consider all relevant parenting factors, which may include but are not limited to: (a) the wishes of the child’s parent or parents; (b) the wishes of the child; (c) 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; (d) the child’s adjustment to home, school and community; (e) the mental and physical health of all individuals involved; (f) physical abuse or threat of physical abuse by one parent against the other parent or the child; (g) chemical dependency … or chemical abuse on the part of either parent; (h) continuity and stability of care; (i) developmental needs of the child; (j) whether a parent has knowingly failed to pay birth-related costs that the parent is able to pay, which is considered to be not in the child’s best interests; (k) 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; (l) whether the child has frequent and continuing contact with both parents, which is considered to be in the child’s best interests unless the court determines, after a hearing, that contact with a parent would be detrimental to the child’s best interests. In making that determination, the court shall consider evidence of physical abuse or threat of physical abuse by one parent against the other parent or the child, including but not limited to whether a parent or other person residing in that parent's household has been convicted of any of the crimes enumerated in [state law]; and (m) adverse effects on the child resulting from continuous and vexatious parenting plan amendment actions.”
Custody and Visitation for Transgender Parents
Courts typically will not consider a parent’s gender identity or expression in custody and visitation determinations unless it is shown to adversely affect or harm the child(ren).
In one 1993 case, In Re the Marriage of D.F.D., the trial court awarded the mother sole custody and restricted the father to supervised visitation. The reasons given by the trial court for these determinations were that the father was a cross-dresser and that the son would be irreparably harmed. The Montana Supreme Court concluded: “There was no credible evidence to support the district court’s findings which formed the basis for its denial of joint custody.” The state Supreme Court states that there was no evidence the father currently cross-dressed, and even if he did and his son witnessed it, “Every counselor testified … that the negative impact on the son would be less than the impact from not having a normal relationship with his father.” The high court removed the restriction that visits between the father and son must be supervised.
Custody and Visitation for Same-Sex Co-Parents
Although there are no published cases dealing with same-sex co-parents, state law allows for a person not legally or biologically related to the child(ren) to petition for visitation.
Montana law states: “In cases when a non-parent seeks a parental interest in a child … or visitation with a child, the provisions of this chapter apply unless a separate action is
pending. … 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 non-parent has established with the child a child-parent relationship … and it is in the best interests of the child to continue that relationship. …
“A court may order visitation based on the best interests of the child. … 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. 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. …
“‘Child-parent relationship’ means a relationship that exists or did exist, in whole or in part, preceding the filing of an action under this section, in which a person provides or provided for the physical needs of a child by supplying food, shelter and clothing and provides or provided the child with necessary care, education and discipline and which relationship continues or existed on a day-to-day basis through interaction, companionship, interplay and mutuality that fulfill the child’s psychological needs for a parent as well as the child’s physical needs.”
Citations: §40-4-212; In Re the Marriage of D.F.D., 862 P.2d 368 (Mont. 1993); MONT. REV. STAT. §40-4-228; MO. REV. STAT §40-4-211.
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Last Updated: 10/13/2004