When parents divorce, the divorce decree will usually refer to a parenting plan, medical support and child support obligation. A parenting plan specifies with whom the children will live and how often and under what circumstances the other parent will visit the children. Most often parents work out these arrangements between themselves, either voluntarily or with the assistance of their attorneys and/or a mediator. When parents (married or unmarried) are unable to reach a decision, either parent can request the court to intervene and make a decision based on the best interests of the child.
In many situations, physical custody is awarded to one parent. At one time this was referred to as sole custody, but the term custody has little legal significance in Montana. Usually, the parents share the right to make decisions about the child's education, religion, health care and other important concerns. One parent is generally the primary caregiver and the other parent is granted visitation, either according to a clear schedule of dates and times or on a reasonable basis.
Recently, the courts were granted the option to give grandparents entitlement to visitation privileges, but our firm has not seen a court grant such a right of visitation to grandparents. The law in this area has not been thoroughly tested.
Some parents choose a joint custody arrangement in which the child spends an equal amount of time with both parents. Courts are reluctant to order joint custody unless both parents are in agreement. Courts rarely separate siblings absent unique circumstances.
An unwed father must take steps to be named the paternal father before the court will award him any visitation or appoint him a primary caregiver. For any case, there is minimum visitation guidelines utilized by the courts when determining a minimal amount of contact for a parent, regardless of the child’s age, provided there a not extenuating circumstances concerning that parent.
In deciding the "best interests of the child” there are several factors considered by the court. These factors include continuity and stability of care already established, physical abuse, chemical dependencies, and once the children attain the age 14, their choice.
Once a parenting plan is decreed, a modification may only be made if the parents agree or there is a significant change in circumstances of the child. Montana policy is to not relitigate parenting plans. Family law proceedings take up approximately 34% of the court’s time in Flathead County District Court and the courts do not want to revisit plans as a result of parental disputes. There must be a legitimate reason for the chance in the court’s discretion.
Many courts are criticized as being gender-biased, since many custody awards are in the mother's favor. Others respond to this criticism, however, with the fact that historically mothers have been, and in many cases continue to be, the children's primary caregiver, so the higher number of awards to mothers is appropriate. As more fathers become more actively involved in their children's care, there likely will be more custody awards to fathers. Because custody and visitation decisions involve such important considerations and impact so many lives, the assistance of an experienced lawyer is an essential element of the decision-making process.
If you want a parenting plan in you and children’s best interests, contact one of our experienced attorneys.