No. In Montana a child does not get to choose which parent to live with, at any age. A child's wishes are one of the factors a judge considers when setting a parenting plan, and an older child's well-reasoned view may carry real weight, but the decision belongs to the parents by agreement or to the court. This page is part of our Montana Divorce Guide.
What the Statute Says About a Child's Wishes
The court determines a parenting plan in accordance with the best interest of the child and considers all relevant parenting factors. The second factor on the list is "the wishes of the child" (MCA § 40-4-212(1)(b)). The first is the wishes of the child's parent or parents.
That is all the statute says on the point. It gives no age, no test for maturity, and no instruction about how much weight a child's preference should receive. The wishes of the child sit beside twelve other listed factors, including the child's adjustment to home and school, continuity and stability of care, and developmental needs. See the best interest factors for the full list.
Ages That Do Appear in the Parenting Statutes
A few ages are written into nearby sections. None of them lets a child decide a parenting plan.
| Age | What the statute provides | MCA |
|---|---|---|
| Any age | The wishes of the child are a best interest factor. No age is stated. | § 40-4-212(1)(b) |
| Any age | The court may interview the child in chambers about residence and parental contact. | § 40-4-214(1) |
| 12 or older | After a parent dies, a person nominated by the child may request a parenting plan hearing. | § 40-4-221(2)(d) |
| 14 or older | On a motion to amend an existing plan, the court considers whether the child desires the amendment. | § 40-4-219(1)(a)(iii) |
| 16 or older | A court-appointed investigator needs the child's consent to consult the child's past medical or psychiatric providers, unless the court finds the child lacks capacity to consent. | § 40-4-215(3) |
The age 14 provision is sometimes mistaken for a right to choose. It applies when a parent moves to amend an existing plan. The court considers, among other things, whether "the child is 14 years of age or older and desires the amendment." The parent asking for the change must still show new facts, a change in the child's circumstances, and that the amendment is necessary to serve the child's best interest (MCA § 40-4-219(1)).
How a Judge Hears From a Child
Montana law gives the court a way to hear from a child outside the courtroom. Under MCA § 40-4-214(1):
- The court may interview the child in chambers to ascertain the child's wishes as to residence and parental contact.
- The court may permit counsel to be present at the interview.
- The court shall cause a record of the interview to be made, and that record is part of the record in the case.
The first two are choices for the judge. The third is mandatory. An interview in chambers is not a private conversation that stays between the judge and the child. A court may, however, seal the record of an interview if it finds that necessary to protect the child's welfare (MCA § 40-4-216(5)).
The same section lets the court seek the advice of professional personnel. That advice must be in writing and made available to counsel on request, and counsel may examine the professional as a witness (MCA § 40-4-214(2)).
Other Ways a Child's Voice Reaches the Court
An interview with the judge is not the only route. The court may appoint a guardian ad litem, whose duties include interviewing or observing the child and making written reports and recommendations (MCA § 40-4-205(2)). In a contested case the court may also order an investigation and report on parenting arrangements (MCA § 40-4-215(1)). Both are explained in guardians ad litem and parenting evaluations.
These tools let a court learn what a child thinks without asking the child to choose between parents in front of them.
Why a Preference Is Not the Last Word
The statute makes a child's wishes a factor rather than a rule, and the reasons are not hard to see. A child may prefer the home with fewer rules. A child may say what they believe a parent wants to hear, or may be trying to look after a parent who is struggling. A judge looks at the reasons behind a preference and at the rest of the evidence.
One of the stated objectives of a parenting plan is to "maintain the child's emotional stability and minimize the child's exposure to parental conflict" (MCA § 40-4-233(3)). Asking a child to pick a side cuts against that objective. So does coaching a child on what to say. The statutes do not address coaching by name, so this is our reading, but a parent who pressures a child invites the court to discount what the child says and to look closely at that parent's judgment.
What Parents Can Do
You can listen to your child without handing over the decision. Some practical points:
- Let your child know their feelings matter and that the adults will make the decision.
- Do not ask your child to choose, carry messages, or report on the other home.
- If your child raises a concern about safety, take it seriously and get advice promptly.
- Consider whether the plan can give an older child some flexibility, for example around activities and work, without leaving either parent out.
Telling your children about divorce and co-parenting after divorcego further into these conversations. If a child's reluctance to see a parent is connected to abuse, and anyone is in danger, call 911. The National Domestic Violence Hotline is 1-800-799-7233.
Parents who agree that a child's needs have changed can amend their plan together, on their own or through a cooperative parenting plan process. For the overview of how plans are decided, see parenting plans in Montana.
This page explains Montana law in general as of the 2025 Montana Code Annotated. It is not legal advice about your specific case.