CasewellThe law in plain words
Under Mont. Code Ann. § 40-4-212, "The court shall determine the parenting plan in accordance with the best interest of the child."
Wondering who usually ends up with custody? Our page on the chances of getting full custody in Montana explains what the figures can and cannot show.
Parenting plans instead of custody
Montana statutes rarely say "custody." The court orders a parenting plan, and the Judicial Branch forms page calls the time "parenting time."
- Parenting plan: the court order that sets the schedule, decision-making and support. Under § 40-4-234, every case involving a child ends with one.
- Residential schedule: the days each parent has the child, including holidays, birthdays and vacations.
- Decision-making: the plan can give decisions about school, religion and health care to one parent or to both.
- Day-to-day care: each parent decides daily matters while the child is with them. Either parent can make emergency health or safety decisions.
- The "custodian" label: a plan may name one parent as custodian because other laws need a name. That label does not change either parent's rights under the plan.
So "full custody" and "sole custody" are not Montana legal terms. People use them to mean most of the time plus the major decisions.
Is Montana a 50/50 state?
No. No Montana statute presumes equal time, and none presumes joint decision-making.
- What the law favors: frequent and continuing contact with both parents counts as good for the child. That holds unless a judge finds, after a hearing, that contact would harm the child.
- Not equal time: in a February 2026 ruling, the Montana Supreme Court said state law "does not create a presumption of equal residential time."
- The court's guide: a family law guide approved by the Supreme Court says children need not spend exactly equal time with each parent.
That 2026 ruling was a memorandum decision, so it is not binding precedent. It still shows how the court reads the statute.
Equal schedules can be ordered when they suit the child's age and routine. A parent who wants to limit the other parent's contact must give the court a reason.
The best-interest factors
Under § 40-4-212, the judge weighs every relevant factor. The list includes:
- what each parent wants
- what the child wants
- the child's relationships with parents, siblings and anyone else who strongly affects the child
- the child's adjustment to home, school and community
- the mental and physical health of everyone involved
- physical abuse, or threats of it, by one parent against the other parent or the child
- drug or alcohol dependency or abuse by either parent
- continuity and stability of care
- the child's developmental needs
- a parent knowingly failing to pay birth costs they could afford
- a parent knowingly failing to support the child when able to
- frequent and continuing contact with both parents, unless contact would harm the child
- harm to the child from repeated "vexatious" requests to change the plan, meaning filings made to harass
The list is open, so other facts can count. A parent's military service alone cannot decide the case.
Since October 1, 2025, a second law, § 41-1-601, lists 17 factors for any best-interest decision. New points include each parent's willingness to support the child's bond with the other parent. It also covers dragging the child into the dispute, the child's cultural background and finishing a court-ordered parenting class. The judge need not weigh any factor a set amount, but must explain the decision.
Your child's preference
Montana sets no age at which a child chooses. The judge may consider the child's wishes and any informed preference. They carry the weight the child's maturity and situation justify.
- Talking to the judge: the judge may interview the child privately in chambers. A record of that talk goes into the case file.
- The 2025 law: judges must consider relevant information from the child, including the child's informed preferences.
- Investigations: in a contested case, the court can order a report on the family. The investigator may talk to people who know the child.
- Age 14 and older: in a request to change a plan, the judge considers whether a child of 14 or more wants the change.
The judge still makes the final decision. A teenager's wishes usually carry more weight than a young child's.
Mothers' and fathers' rights
Neither best-interest law gives mothers or fathers an edge. The factors look at the child's needs and each parent's care, not the parent's sex.
- Records: a parent who is a party to a parenting plan cannot be denied the child's medical, dental, school or police records.
- Disability: a parent's disability cannot decide the case by itself, under the 2025 law.
- Military service: it cannot be the only reason for a parenting decision.
An unmarried father may first need to establish paternity, meaning legal fatherhood. After that, he asks for a parenting plan on the same footing as the mother.
If you were never married
We found no Montana statute that says who has custody when unmarried parents have no court order. Either parent can ask the court for a plan to get enforceable rights.
- The case to file: a Petition to Establish a Parenting Plan, in the county where the child lives or is found. It covers parenting time and child support, not property.
- Acknowledgment of paternity: both parents can sign the state health department's form. Once it is filed, the man is presumed to be the father.
- Changing your mind: a signer can withdraw within 60 days by filing a notice with the department.
- After 60 days: the acknowledgment works like a court judgment. It can be undone only for fraud, duress, meaning threats or pressure, or a serious factual mistake.
- Genetic tests: a result showing at least a 95% probability also creates a presumption of fatherhood.
If paternity is in doubt, it usually has to be settled before the court sets a parenting plan. The mother, an alleged father, the child or the state can bring that case.
Domestic violence
Abuse affects a Montana parenting case in several ways.
- A factor: physical abuse or threats against the other parent or the child weigh against the parent who did it.
- Contact limits: when deciding whether contact would harm the child, the judge must consider abuse evidence. Certain criminal convictions of a parent or household member also count.
- Convictions: if a parent or someone in their home is convicted of listed crimes, the other parent can object to the current order. The list includes partner assault, strangulation and sexual abuse of children.
- Fast suspension: if the convicted parent does not respond within 21 days, their parenting rights are suspended. If they object, a hearing follows within 30 days.
- Presumption: a parent who commits those crimes is presumed not to act in the child's best interest.
- Supervised time: the court can order supervised visits if the child's health or emotional growth is at risk.
The 2025 law also asks about a child who saw certain assaults on a family member. It focuses on the "predominant aggressor," meaning the person mainly responsible.
Orders of protection
Montana calls a protective order an "order of protection." The rules sit in Title 40, chapter 15.
- Who can file: partners, including people who have a child together, dating partners and family members. Victims of certain crimes can file whatever the relationship.
- Temporary order: if you are in danger, a judge can issue one right away, without notice, for up to 20 days.
- Hearing: it must be held within 20 days. If it is postponed, the temporary order stays in place.
- What it can do: ban contact, order the abuser to stay 1,500 feet away and remove them from the home. It can stop them taking the child out of the court's area.
- How long: after the hearing, the order can last a set time or be made permanent. It can also bar contact with a child.
- Cost: filing and service are free.
You can file in district, justice, city or municipal court, with no minimum residency. If a parenting case is already open in district court, file there unless that judge is unavailable or you fled the county.
Emergency and temporary orders
A parenting case can take months. Montana has two faster tools.
- Interim parenting plan: a temporary plan while the case goes on. You ask by motion with a sworn statement, called an affidavit. If nobody objects, the judge may decide on the paperwork.
- Emergency order without notice: you can ask the judge to set temporary living arrangements before the other parent is heard.
- The emergency test: where a plan already exists, the child's present home must endanger their physical, mental or emotional health. An immediate change must be needed to protect them.
- Follow-up hearing: after an emergency order, everyone must appear within 21 days to show why it should not stay in place.
The Judicial Branch has an Emergency Motion to Adopt Interim Parenting Plan form. A Montana court can also act to protect a child here from abuse or mistreatment, even without home-state jurisdiction.
Moving with your child
Montana's relocation rule is § 40-4-217. It applies to any move, not only moves out of state.
- Any move: give the other parent written notice, unless your plan says otherwise.
- A move that significantly affects the other parent's time: file a motion to amend the residential schedule, with a proposed new schedule.
- Timing: serve it at least 30 days before the move, in person or by certified mail.
- The other parent: has 21 days to respond with their own proposed schedule. Silence counts as accepting yours.
If there is a dispute, the judge weighs the move under § 40-4-219. The questions include each parent's reasons and whether visits can realistically continue. The judge also asks whether the moving parent supports the child's bond with the other parent, and whether there are reasonable alternatives.
Moving a child to another state without the required notice or consent is a crime. Under § 45-5-632, it can bring a fine of up to $1,000, up to 18 months in prison, or both.
Moving to a neighboring state? Its custody rules may differ. Read our guides for Idaho and South Dakota.
Changing custody
Montana calls this amending a parenting plan. Under § 40-4-219, the judge needs two findings:
- a change in the child's circumstances, based on facts that are new or were unknown at the last order, and
- that the amendment is necessary for the child's best interest
The judge also considers whether the parents agree, and whether the child has joined the other parent's household with consent. A child of 14 or more who wants the change also counts.
- Blocked contact: a parent who willfully and consistently blocks the other parent's contact is presumed not to act in the child's best interest.
- Affidavit first: the asking parent files a sworn statement with a proposed amended plan. The judge denies the motion unless it shows adequate cause for a hearing.
- Repeat filings: a request filed without a good faith effort to follow the plan is presumed vexatious. So is a plan case filed within 6 months after a child support action against that parent.
- Fees: a parent who files harassing requests must pay the other side's lawyer fees and costs.
Parenting plans, classes and mediation
In every case with a child, each parent submits a proposed final parenting plan in good faith. Parents can also file one plan together.
- What plans cover: the schedule, decisions about school, religion and health care, and finances. Many also set a way to settle future disputes outside court.
- Parenting class: the court must tell parents about classes on how separation affects children. It orders one if the child would benefit, and the state pays the cost.
- Mediation: the court can order mediation at any stage. It cannot order or continue it if it suspects abuse, unless each parent gives written, informed consent.
- Free mediation: the statewide Family Transition Project offers free mediation, legal advice and child support help. At least one parent must have no lawyer and meet income limits.
- Informal trials: since October 1, 2023, cases with at least one parent lacking a lawyer use an informal domestic relations trial. Either parent can opt out.
In an informal trial, each parent talks to the judge directly and can offer any documents. The judge decides how much weight they carry.
How to file for custody in Montana
Montana must usually be the child's home state. That means the child lived here with a parent for the six months before filing.
- Choose the case. Married parents ask for a parenting plan in a divorce petition. Unmarried parents file a Petition to Establish a Parenting Plan.
- Get the forms. The Judicial Branch forms page has a Parenting Plan Packet. The free Court Help Program can explain the steps.
- Write your proposed plan. Include the schedule, holidays and who makes major decisions.
- File with the clerk of district court, usually in the county where the child lives. Pay the fee or ask for a waiver.
- Serve the other parent. They can file an answer and their own plan.
For a divorce, one spouse must have lived in Montana for 90 days before filing. Ask the court about mediation and any local parenting class.
How much does it cost to file for custody in Montana?
Fees come from the Montana Clerks of District Court fee schedule. It adds charges from other statutes to the base fees in § 25-1-201.
| Filing | Fee |
|---|---|
| Petition for a parenting plan (new case) | $120 |
| Divorce petition | $200 |
| Other parent's appearance or answer | $70 |
| Contested amendment of a parenting plan | $120 |
| Order of protection | Free |
These are the listed fees, last checked October 28, 2026. Confirm the total with your county clerk. If the other parent signs a statement agreeing to an amendment, the contested amendment fee does not apply.
If you cannot afford the fees, file a sworn request with a financial statement. The court can then let your case go ahead without paying first.
What changed recently
- October 1, 2025: Senate Bill 466 took effect as § 41-1-601. It lists 17 factors for any best-interest decision about a child. Judges must explain their reasoning.
- 2025: lawmakers amended the parental rights law, § 40-6-701. It limits government agencies, not the other parent in a custody case.
- October 1, 2023: informal domestic relations trials became the default when at least one parent has no lawyer.
- 2023: a new law, § 40-4-235, bars courts from using a parent's or child's vaccination status in parenting decisions.
- February 2026: the Montana Supreme Court repeated that state law sets no presumption of equal residential time.
The main parenting statutes, §§ 40-4-212 and 40-4-217, were not changed in 2025. Last checked October 28, 2026. Laws can change, so check before you rely on this.
Building the record
Montana judges ask about continuity of care and whether each parent keeps the child connected to the other. Those answers come from dated entries, not general claims.
In an informal trial, you may hand the judge your own documents. Casewell keeps dated notes, exchanges and the messages behind them in one place, ready to export for a lawyer or the court.
Before you record a call or a handover, check whether you can record your co-parent in Montana.
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A Montana custody record
Montana judges weigh continuity of care, each parent's support for the other's time, and safety. Keep these items current so your facts are ready.
Court timeline
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Is Montana a 50/50 custody state?
No. Montana has no presumption of equal time or joint custody. The law favors frequent and continuing contact with both parents. Equal time is ordered only when it suits the child.
How do I get sole custody in Montana?
Montana does not use the term sole custody. You ask for a parenting plan giving you most of the time and the major decisions. To limit the other parent's contact, you must show it would harm the child.
Who has custody of a child if the parents are not married in Montana?
We found no Montana statute that settles this without a court order. Either parent can file a Petition to Establish a Parenting Plan to get enforceable rights.
At what age can a child choose which parent to live with in Montana?
Montana has no fixed age. The judge may consider the child's wishes, giving them the weight the child's maturity justifies, and may interview the child privately. When a plan is being changed, a child of 14 or older who wants the change is considered.
How much does it cost to file for custody in Montana?
The listed fee is $120 to file a parenting plan petition and $200 for a divorce. The other parent pays $70 to answer. A fee waiver is available if you cannot pay.
Can I move out of Montana with my child?
If a move will significantly affect the other parent's time, file a motion to amend the schedule at least 30 days before moving. Moving out of state without the required notice or consent is a crime.
Sources
This page summarizes the Montana Code Annotated (Titles 40 and 41), Montana Supreme Court rules and rulings, and Judicial Branch guidance, as of October 2026. It explains the law in general terms and is not legal advice.
- Mont. Code Ann. § 40-4-212 — best interest of the child checked
- Mont. Code Ann. § 41-1-601 — best-interest factors (2025) checked
- Mont. Code Ann. § 40-4-234 — final parenting plan criteria checked
- Mont. Code Ann. § 40-4-217 — notice of intent to move checked
- Mont. Code Ann. § 40-4-219 — amendment of a parenting plan checked
- Mont. Code Ann. § 40-6-105 — presumption and acknowledgment of paternity checked
- Mont. Code Ann. § 40-15-201 — temporary order of protection checked
- In re Marriage of Cool, No. DA 25-0223 (Mont. Feb. 24, 2026) checked
- Montana Judicial Branch — child custody and parenting plan forms checked
- Montana Clerks of District Court — civil fee schedule checked