When parents divorce, they are often concerned with which of them will get custody of their children. They can agree to shared custody or agree that one of them will maintain sole custody. However, some parents have a volatile relationship during divorce and cannot agree to an arrangement. In Montana, if that is the case, a custody determination is left to a judge.
Custody by Agreement
When parents are able to agree on a custody arrangement, Montana requires that the agreement clearly define both legal and physical custody and include a division of overall parenting responsibility. Physical custody means where the child will live, and legal custody defines the right to make decisions regarding the child's upbringing, including child care, education and medical needs.
If parents fail to reach an agreement on custody, a Montana judge will make a determination. Montana courts, like those in many other states, use "the best interests of the child" standard when deciding custody. Some factors examined include: any allegations of abuse; each parent's relationship with the child; whether either parent has failed to financially support the child; whether either parent has a history of alcohol or drug abuse; each parent's physical and mental health; the ability of each parent to provide a stable environment; and the child's preference.
Once custody is decided, Montana law requires the parents to submit a parenting plan to the court. The parents can work together to create a plan, or each parent can submit one and the judge will create a final plan using both parent's plans as a guide. A parenting plan must allocate responsibilities for each parent. Provisions can include the child's daily needs, such as education, child care and extracurricular activities, and an outline of each parent's "parenting time," including holidays and vacations, also is useful. The child's financial needs also should be included to avoid disputes over who is responsible for certain financial obligations.
Parents also often include a provision regarding a method for handling any disputes, such as mediation or court action. The more extensive and thorough a parenting plan is, the easier things typically are for both parents and the child during the transition period.