Montana Child Custody Agreement

Introduction

Key Things to Know

1. 1

   A parenting plan results either way. Mont. Code Ann. 40-4-234(1) requires a proposed final parenting plan in every dissolution, invalidity, parenting plan, or legal separation proceeding that involves a child, and it says the requirement applies in cases of dissolution by default. The statute contemplates two routes to the same place: each parent files a proposed plan, or both parents file one jointly. Agreeing changes which route the case takes, not whether a plan exists.

2. 2

   The submission itself carries a good faith duty. The words in 40-4-234(1) are that the parents shall submit their proposed final plan to the court in good faith, which is unusual drafting and worth taking literally. A plan filed to stake out a bargaining position is not what the section asks for. Where both parents sign one plan, the good faith duty attaches to that joint filing.

3. 3

   Signatures do not make the plan an order. Under 40-4-212(1) the court shall determine the parenting plan in accordance with the best interest of the child, and under 40-4-234(1) a final parenting plan must be incorporated into any final decree or amended decree. The plan takes effect through that incorporation, not through the parents agreeing to it. Until the decree is entered there is nothing to enforce.

4. 4

   Montana's vocabulary is parenting plan, residential schedule, parenting functions, and parental decisionmaking authority. The word custody has not disappeared, and Title 40 chapter 4 part 2 is still headed Support, Custody, Visitation, and Related Provisions. But 40-4-234(2)(a) treats the designation of a parent as custodian as something done solely for the purposes of all other state and federal statutes that require a designation or determination of custody, and it says that designation may not affect either parent's rights and responsibilities under the parenting plan. So custodian is a label for other bodies of law, not the operative arrangement.

5. 5

   Section 40-4-234(2) sets out ten lettered items and says a final parenting plan may include, at a minimum, provisions for them. Read that as the checklist the legislature expects a plan to cover rather than as ten elements a plan is void without. The items run from the custodian designation and the legal residences, through a residential schedule covering holidays, birthdays of family members, vacations, and other special occasions, to finances for the child's needs, periodic review, sanctions for a parent who does not follow the plan, allocation of decisionmaking authority, and a dispute resolution method.

6. 6

   Two of those items are unusual and both suit an agreed plan. Item (i) asks for the method by which future disputes will be resolved between the parents other than court action, so the plan is expected to name something the parents do before filing a motion. Item (j) asks for the unique circumstances of the child or the family situation that the parents agree will facilitate a meaningful, ongoing relationship between the child and the parents. That is an express statutory opening for bespoke terms that a generic form would never reach.

7. 7

   Domestic violence is a mandatory consideration in Montana rather than a presumption. Physical abuse or threat of physical abuse by one parent against the other parent or the child is best interest factor (f) under 40-4-212(1). It also appears inside factor (l), which declares that continuing and frequent contact with both parents is considered to be in the child's best interests unless the court, after a hearing, finds that contact would be detrimental, including where a parent has committed abuse. If there has been abuse or a threat of abuse, this is a situation to raise with a lawyer rather than settle on a form.

Montana Requirements for Child Custody Agreement

• Proposed Final Parenting Plan, Mont. Code Ann. 40-4-234(1)

  In every dissolution, declaration of invalidity, parenting plan, or legal separation proceeding involving a child, each parent or both parents jointly must submit to the court, in good faith, a proposed final plan for parenting the child. Parents who agree file one joint plan rather than two, so the document should be framed as a proposed final plan submitted for the court's determination.

• Incorporation Into the Decree, Mont. Code Ann. 40-4-234(1)

  A final parenting plan must be incorporated into any final decree or amended decree, including cases of dissolution by default. The plan takes effect through incorporation, not through the parents signing it, so nothing in the document is enforceable until the decree is entered.

• Best Interest Determination, Mont. Code Ann. 40-4-212(1)

  The court shall determine the parenting plan in accordance with the best interest of the child, considering all relevant parenting factors, which may include but are not limited to the thirteen lettered items at (a) to (m). The list is open, and factor (m) treats adverse effects from continuous and vexatious parenting plan amendment actions as a best interest factor.

• Statutory Plan Checklist, Mont. Code Ann. 40-4-234(2)(a) to (j)

  A final parenting plan may include, at a minimum, provisions for ten lettered items: the custodian designation, legal residences, a residential schedule, finances for the child's needs, other factors affecting the child's health and well-being, periodic review, sanctions, allocation of decisionmaking authority, a dispute resolution method other than court action, and the unique circumstances the parents agree on. Treat this as the checklist a plan is expected to cover rather than as ten elements a plan is void without.

• Custodian Designation, Mont. Code Ann. 40-4-234(2)(a)

  A parent may be designated custodian of the child solely for the purposes of all other state and federal statutes that require a designation or determination of custody, and the designation may not affect either parent's rights and responsibilities under the parenting plan. Include the designation, and state expressly that it does not alter the plan.

• Residential Schedule, Mont. Code Ann. 40-4-234(2)(c)

  The plan should specify the periods during which the child will reside with each parent, including holidays, birthdays of family members, vacations, and other special occasions. A bare weekly rotation without holiday and special occasion coverage leaves the item unanswered.

• Parental Decisionmaking Authority, Mont. Code Ann. 40-4-234(2)(h)

  The plan should allocate parental decisionmaking authority over the child's education, spiritual development, and health care and physical growth. Montana names spiritual development as a separate head of authority, so a clause covering only health and education is incomplete.

• Dispute Resolution Other Than Court Action, Mont. Code Ann. 40-4-234(2)(i)

  The plan should state the method by which future disputes will be resolved between the parents other than court action. Name a specific process with a trigger and a timetable, because a clause reserving the right to file a motion does not satisfy the item.

• Periodic Review and Sanctions, Mont. Code Ann. 40-4-234(2)(f) and (g)

  Item (f) covers periodic review of the plan on request or on foreseen triggering circumstances. Item (g) contemplates the plan specifying sanctions that will apply if a parent fails to follow its terms, including contempt of court, so the enforcement mechanism can be written into the document itself.

• Change of Residence Notice, Mont. Code Ann. 40-4-217(1) and (2)

  A parent who intends to change residence must give written notice to the other parent, with no distance or duration threshold. Where the change will significantly affect the child's contact with the other parent, the parent must also move to amend the residential schedule, serving a proposed revised schedule personally or by certified mail not less than 30 days before the move, and the notice must contain the statement prescribed by 40-4-217(2)(b).