Montana Child Custody Agreement
Montana requires a proposed final parenting plan in every proceeding involving a child, so what agreeing decides is whether the judge works from one joint plan or two competing ones.
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Introduction
Montana does not leave a custody arrangement to the parents' signatures. Under Mont. Code Ann. 40-4-234(1), in every dissolution proceeding, proceeding for declaration of invalidity of marriage, parenting plan proceeding, or legal separation proceeding that involves a child, each parent or both parents jointly must submit to the court, in good faith, a proposed final plan for parenting the child. That requirement reaches cases of dissolution by default, and a final parenting plan must be incorporated into any final decree or amended decree. A plan therefore results either way, and what agreeing changes is whether the court is working from one jointly submitted plan or two competing ones. Montana attaches no presumption to the fact that the parents agreed. Section 40-4-212(1) makes the court the one that determines the parenting plan, in accordance with the best interest of the child. What the statute does do is invite agreed terms in so many words: section 40-4-234(2)(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.
Key Things to Know
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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.
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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.
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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.
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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.
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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.
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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.
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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.
Key decisions before you file
Before you file a Child Custody Agreement in Montana, a few decisions shape the document: which option to choose and what each one means. The Child Custody Agreement guide walks through them.
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Montana Requirements for Child Custody Agreement
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.
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.
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.
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.
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.
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.
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.
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.
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.
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).
Frequently Asked Questions
The filing changes, not the requirement. Mont. Code Ann. 40-4-234(1) says that in every proceeding covered by the section each parent or both parents jointly shall submit to the court, in good faith, a proposed final plan for parenting the child. Parents who agree file one joint plan instead of two competing ones, and that joint plan becomes what the court works from. Montana attaches no presumption to the fact of agreement, and the court still determines the parenting plan in accordance with the best interest of the child under 40-4-212(1).
Yes, and in an unusually wide set of cases. Section 40-4-234(1) applies in every dissolution proceeding, proceeding for declaration of invalidity of marriage, parenting plan proceeding, or legal separation proceeding that involves a child, and the same section says a final parenting plan must be incorporated into any final decree or amended decree, including cases of dissolution by default. There is no version of these proceedings that ends without a parenting plan.
Yes. What the parents file is a proposed final plan. 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) the final parenting plan is incorporated into the final decree or amended decree. The signatures are the proposal; the decree is what the parents can enforce, and a judge who does not consider an arrangement to be in the child's best interest is not obliged to enter it.
Section 40-4-234(2) lists ten lettered items and says a final parenting plan may include, at a minimum, provisions for them, so the sensible way to treat the list is as the checklist the court expects a plan to cover. The items are the custodian designation, the legal residences of both parents and the child, a residential schedule covering holidays, birthdays of family members, vacations and other special occasions, finances to provide for the child's needs, any other factors affecting the child's physical and emotional health and well-being, periodic review, sanctions for a parent who fails to follow the plan, allocation of parental decisionmaking authority over education, spiritual development, and health care and physical growth, a method of resolving future disputes other than court action, and the unique circumstances the parents agree will support the child's relationship with both of them.
Structurally yes, operationally no. Title 40 chapter 4 part 2 is still headed Support, Custody, Visitation, and Related Provisions, so the word survives in the code. But 40-4-234(2)(a) provides for designation of a parent as custodian of the child solely for the purposes of all other state and federal statutes that require a designation or determination of custody, and adds that the designation may not affect either parent's rights and responsibilities under the parenting plan. The working vocabulary is parenting plan, residential schedule, parenting functions, and parental decisionmaking authority.
Section 40-4-212(1) directs the court to consider all relevant parenting factors, which may include but are not limited to thirteen lettered items running from (a) to (m). The phrasing makes the list open rather than closed. Three of the items are written as conclusions rather than neutral considerations: (j) and (k) provide that a knowing failure to pay birth-related costs, or to support a child the parent is able to support, is considered to be not in the child's best interests, and (l) provides that continuing and frequent contact with both parents is considered to be in the child's best interests unless the court finds after a hearing that contact would be detrimental. Section 40-4-212(2) separately bars determining best interest based only on a parent's military service.
The statute asks for one. Item (i) of 40-4-234(2) is the method by which future disputes will be resolved between the parents, and it specifies a method other than court action, so a clause that just says either parent may file a motion is not answering the question. Mediation, a parenting coordinator, or a defined conference process are the usual ways of filling it. There is a related reason to take the clause seriously: factor (m) in 40-4-212(1) makes adverse effects on the child resulting from continuous and vexatious parenting plan amendment actions a best interest factor in its own right.
Montana lets the parents write the consequence into the document. Item (g) of 40-4-234(2) contemplates the plan itself specifying sanctions that will apply if a parent fails to follow its terms, including contempt of court. Because the plan is incorporated into the decree under 40-4-234(1), those terms sit inside a court order rather than in a private agreement. Item (f) pairs with this by providing for periodic review of the plan, either on request or on circumstances the parents can foresee.
Section 40-4-217 works in two tiers. Under subsection (1), a parent who intends to change residence must, unless precluded under 40-4-234, give written notice to the other parent, with no mileage threshold and no minimum duration attached. Under subsection (2), where the change will significantly affect the child's contact with the other parent, the relocating parent must also file a motion to amend the residential schedule together with a proposed revised schedule, served personally or by certified mail not less than 30 days before the proposed change. Subsection (2)(b) prescribes specific wording that the notice must contain to be sufficient, so the statutory statement should be copied from the section itself rather than paraphrased.
No. Support is calculated separately and is not resolved by agreeing on a residential schedule or on decisionmaking authority. Section 40-4-234(2)(d) does ask a parenting plan to address finances to provide for the child's needs, which is a plan term about how the parents will meet day to day costs, not a support calculation. Keep the two questions apart when you draft.