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CUSTODY & VISITATION

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Child custody can be one of the most emotionally charged areas of the law.  As a parent, you are expected to put your personal animosity aside, and cooperate with the other parent for the well-being of your child.  Even though you and the other parent have separated and may have a strained personal relationship, you will be expected to co-parent in a manner which promotes the best interests of your child.

As you create your parenting plan, you need to ask yourself two basic questions:

  1. How will this parenting plan affect my child?
  2. Am I creating a parenting plan that is best for my child?

As you create a parenting plan, you need to ask yourself this basic question: continue to keep your child’s best interests at the forefront of your mind. Make sure your own self-interest is secondary to what is best for your child.  

What are the best interests of the child?  

The best interests of the child test requires the court to consider all relevant parenting factors which affect the child. Those factors include but are not limited to the following:

  • The wishes of the child’s parent(s)
  • The wishes of the child
  • The child’s interaction and/or interrelationship with the child’s: parent(s) sibling(s); and any other person who affects the child’s best interests
  • The mental and physical health of all individuals involved
  • Physical abuse or threat of physical abuse against the parent(s) and/or child
  • Chemical dependency issues of either parent
  • Continuity and stability of care
  • Developmental needs of child
  • Parent’s failure to financially support a child
  • Parent’s failure to pay birth related costs
  • Level of contact with both parents

What if my ex will not let me see the child?

Montana courts frown upon any parent who keeps the child away from other parent.  If you have been unable to see your child, you can seek what is called an Interim Parenting Plan Order.  This type of a Parenting Plan Order can usually be obtained on an expedited basis, well before the divorce or Final Parenting Plan is finalized.  An Interim Parenting Plan usually includes a visitation schedule and is a regular court order much like a Final Parenting Plan Order. However, unlike a Final Parenting Plan Order, an Interim Parenting Plan Order is usually temporary in nature. 

What if my ex is threatening to leave with my child?

Under some circumstances, you may be able to apply for an Interim Parenting Plan Order on an ex parte basis.  This means that a court may be able to issue a Temporary Parenting Order upon reviewing the affidavit of only one party before an actual hearing is held.  If the court finds merit, it may order that the child cannot leave Montana for a period of time. 

What type of parenting plan will the Court usually enter?

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There is no usual or customary parenting plan.  The visitation schedule varies on a case by case basis, and often depends on the factors raised under the best interests of the child test.  Also, the age of the child can greatly affect the visitation schedule.  There will be a much different schedule for an infant than for a teenager.  Likewise, the distance between the each parent’s homes will likely affect the schedule.  Parents who are sharing a child between Washington and Montana will have a much different schedule than parents who live in the same town.

What if my ex keeps bad-mouthing me and my family to the children?

The old saying that: “If you can’t say anything nice, don’t say anything at all” applies more often than not in custody cases.  Courts will not tolerate people who berate or bad-mouth the other parent and extended family members”. More often* than not, courts tend to follow an unwritten rule called the "friendly parent doctrine".  Under this doctrine, courts are more inclined to reward the parent who is the friendlier parent or the parent who causes the least amount of tension and chaos (assuming the other factors under the best interests of the child test also support the friendlier parent).  Just like anyone else, judges usually dislike people who are angry and unnecessarily cause chaos for the other parent, and ultimately the court during a contested hearing.  When dealing with your ex, try to follow the Golden Rule: “Do unto others as you would have them do unto you.”  If you follow the Golden Rule, you will likely find that tensions decrease between the two of you, and you and your ex will find yourselves on better terms which will help you more effectively co-parent your children together.

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