Custody

While the judge will consider any evidence of physical abuse or threat of physical abuse by one parent against the other parent or the child,¹ it is possible that a parent who has committed violence will get custody or visitation since this is only one of many factors that a judge will consider.

In addition, if a custody order is already in place, and the other parent or anyone living with that parent gets convicted of any of the following crimes, you can file an “objection” to the parenting plan to change it:

• deliberate homicide;
• mitigated deliberate homicide;
• sexual assault;
• sexual intercourse without consent;
• deviate sexual conduct with an animal or dead human body;
• incest;
• child sex trafficking;
• endangering the welfare of children;
• partner or family member assault;
• sexual abuse of children; and
• strangulation of a partner or family member.²

After you file the objection, the other parent has 21 days to respond. If s/he doesn’t respond, his/her parenting rights are suspended until the judge says otherwise. If the parent does respond to the objection, then a hearing on the issue will be set within 30 days of the parent’s response.²

It is recommended that you seek legal advice from a lawyer to assist you in a custody/visitation case involving domestic violence issues. For information on how to find a lawyer, see our MT Finding a Lawyer page.

¹ R.C.M. § 40-4-212(1)(f)
² R.C.M. § 40-4-219(8)

If your parental rights were terminated, you or your child can file a petition in court to get back (reinstate) your rights if all of the following are true:

1. a judge decided (“adjudicated”) your child was a “youth in need of care;”
2. your parental rights were terminated in a Montana court case;
3. your child has not “achieved” the permanency plan that was set for him/her or the permanency plan has not been continuously followed (“sustained”); and
4. two years or more have passed since you got the final order terminating your parental rights.¹

If the judge believes that reinstating your parental rights might be in your child’s best interests, the judge will set a hearing date. At that hearing, you or your child, whichever of you filed the petition, would have to prove:

• the four factors listed above; and
• that it’s in your child’s best interest to have your rights reinstated. When deciding what’s in your child’s “best interests,” the judge will consider whether or not:

• you are a fit parent;
• you fixed (remedied) the negative issues (deficiencies) noted in the court record from the termination case and the termination order;
• your child can give his/her preference;
• reinstating your parental rights poses a risk to your child’s health, welfare, or safety;
• reinstating your parental rights would be so good (beneficial) for your child that it outweighs the potential lack of permanency for him/her; and
• there are other important changes in circumstances that call for reinstating your parental rights.² 

If your child filed the petition to reinstate your parental rights, s/he has the right to be represented by a lawyer.³

¹ R.C.M. § 41-3-615(1)
² R.C.M. § 41-3-615(4)(a), (5), (7)
³ R.C.M. § 41-3-615(3)(a)