Montana Emergency Custody Motion

Introduction

Key Things to Know

1. 1

   If a child is in immediate danger, call 911 now. A court filing takes time and cannot replace emergency help.

2. 2

   The Montana routes covered here are a temporary restraining order or temporary injunction under MCA 40-4-121, temporary emergency jurisdiction under MCA 40-7-204 and, for abuse, a temporary order of protection under MCA 40-15-201.

3. 3

   Under MCA 40-4-121(4), the court may issue a temporary restraining order for a period not to exceed 21 days without requiring notice to the other party only if it finds on the basis of the moving affidavit or other evidence that irreparable injury will result. An independent motion must be accompanied by an affidavit.

4. 4

   Notice is the general rule. The party against whom a temporary injunction is sought must be served with notice and a copy of the motion and is entitled to a hearing. A response is due within 21 days after service of notice of the motion or at the time specified in the restraining order.

5. 5

   A temporary injunction under MCA 40-4-121(2)(d) can bar a party from removing a child from the jurisdiction of the court. It is fixed for a period not to exceed 1 year and can be sought without a dissolution petition by verified petition under Title 27, chapter 19, part 3. The court decides whether to grant any order.

6. 6

   For temporary emergency jurisdiction, MCA 40-7-204 requires that the child be present in Montana and either abandoned or in need of emergency protection because the child, a sibling or a parent is subjected to or threatened with mistreatment or abuse.

7. 7

   For abuse, a sworn petition for an order of protection under MCA 40-15-201 requires a reasonable apprehension of bodily injury. An ex parte temporary order lasts up to 20 days, and a hearing must be held within 20 days of the temporary order. Report abuse to child protective services. For non-emergency changes, see the modifying child custody guide.

Montana Requirements for Emergency Custody Motion

• Moving affidavit

  An independent motion for a temporary restraining order or injunction must be accompanied by an affidavit (MCA 40-4-121).

• Irreparable injury

  A restraining order without notice requires a finding, on the moving affidavit or other evidence, that irreparable injury will result (MCA 40-4-121(4)).

• Notice and hearing

  The party against whom a temporary injunction is sought must be served with notice and a copy of the motion and is entitled to a hearing (MCA 40-4-121).

• 21-day limit on ex parte order

  A temporary restraining order issued without notice may not exceed 21 days (MCA 40-4-121(4)).

• Temporary emergency jurisdiction

  MCA 40-7-204 applies when the child is present in Montana and abandoned, or needs emergency protection because the child, a sibling or a parent is subjected to or threatened with mistreatment or abuse.

• Facts of the emergency

  State dates, places, people present and the specific harm threatened, in the affidavit.

• Specific temporary orders requested

  List each order sought, such as a restraining order or a bar on removing the child from the jurisdiction, as separate alternatives.