Montana law lets a grandparent ask a district court for contact with a grandchild, but it does not guarantee that contact. When a parent who adequately cares for the child objects, the grandparent must overcome a presumption in favor of that parent's wishes with clear and convincing evidence. The statute is MCA § 40-9-102, and its own term is "grandparent-grandchild contact" rather than visitation. This page explains it for grandparents and parents alike and is part of our Montana Divorce Guide.
What the Statute Allows
Under MCA § 40-9-102(1), the district court "may grant to a grandparent of a child reasonable rights to contact with the child." That includes a child who is the subject of an administrative or court proceeding under Title 40 or Title 41 of the code, in which case the Department of Public Health and Human Services must be given notice of the petition.
The case is started by a petition, captioned as a grandparent-grandchild contact matter, and the Montana Rules of Civil Procedure apply (MCA § 40-9-101). It is a separate proceeding from the parents' dissolution.
When a Parent Objects: The Fitness Hearing
If a parent whose parental rights have not been terminated objects, the court cannot grant the petition until it has decided whether the objecting parent is a fit parent. The statute sets three rules for that step (MCA § 40-9-102(2)):
- The fitness determination, and any grant of the petition, may be made only after a hearing.
- Notice of the hearing is as determined by the court.
- Fitness "must be determined on the basis of whether the parent adequately cares for the parent's child."
The question is whether the parent adequately cares for the child. It is not whether the grandparent would be a good influence, or whether the parent's reasons for objecting seem fair.
The Two Standards
| Situation | What the court must do or find | MCA |
|---|---|---|
| No parent objects | The court may grant a grandparent reasonable rights to contact with the child. | § 40-9-102(1) |
| A parent objects | The court must first hold a hearing and determine whether the objecting parent is fit, meaning whether the parent adequately cares for the child. | § 40-9-102(2) |
| The objecting parent is fit | Contact may be granted only on clear and convincing evidence that contact would be in the child's best interest and that the presumption in favor of the parent's wishes has been rebutted. | § 40-9-102(4) |
| The objecting parent is found unfit | Contact may be granted only if the court also determines by clear and convincing evidence that the contact is in the child's best interest. | § 40-9-102(3) |
Both paths require "clear and convincing evidence," which is a demanding standard of proof. Over a fit parent's objection there is a second requirement: the grandparent must also rebut "the presumption in favor of the parent's wishes."
That presumption fits with the state policy written into the parenting statutes, which is "to recognize the constitutionally protected rights of parents and the integrity of the family unit" (MCA § 40-4-227(1)(a)). Courts have interpreted these provisions, and how they apply to a particular family depends on the evidence.
Limits on Petitions
The statute contains several limits:
- Once every 2 years. A person may not petition more often than that unless there has been a significant change in the circumstances of the child, the child's parent, guardian, or custodian, or the grandparent (MCA § 40-9-102(5)).
- Adoption. The section does not apply if the child has been adopted by a person other than a stepparent or a grandparent, and contact granted under it terminates on such an adoption (MCA § 40-9-102(8)).
- Limited effect of an unfitness finding. A determination that a parent is unfit under this section has no effect on the parent's rights other than with regard to grandparent-grandchild contact, unless the court orders otherwise (MCA § 40-9-102(9)).
The court may appoint an attorney to represent the child's interests when the parties do not adequately represent them, and may appoint a guardian ad litem to represent the child's best interests (MCA § 40-9-102(6), (7)). See guardians ad litem and parenting evaluations.
How a Divorce Affects Grandparents
A dissolution of marriage produces a parenting plan between the two parents. Grandparents are not parties to it. Grandparents can see their grandchildren during the time the child is with their own son or daughter, and nothing in the parenting statutes requires a court order for that.
A plan may address "any other factors affecting the physical and emotional health and well-being of the child" (MCA § 40-4-234(2)(e)), and one best interest factor is the child's relationship with "any other person who significantly affects the child's best interest" (MCA § 40-4-212(1)(c)). Parents who want to protect a grandparent relationship can write terms about it into their plan by agreement.
The petition under § 40-9-102 becomes relevant when that informal route closes, for example when a parent has died, or when the grandparent's own child has little or no parenting time.
Other Routes for Relatives Raising a Child
Contact is different from parenting. A grandparent who has been raising a grandchild may be in a different legal position than one who is asking for visits. A separate statute allows a court to award a parental interest to a nonparent on clear and convincing evidence that the natural parent has engaged in conduct contrary to the child-parent relationship and that the nonparent has established a child-parent relationship with the child that it is in the child's best interests to continue (MCA § 40-4-228(2)).
Two narrower provisions may also apply. After a parent dies, certain people, including a person who has established a child-parent relationship with the child, may request a parenting plan hearing (MCA § 40-4-221). And when a parent receives military service orders that materially affect their ability to parent, the court may grant visitation to a family member of that parent who has a close and substantial relationship with the child during the absence, if it is in the child's best interests (MCA § 40-4-228(6)).
Before Anyone Files
A court case between a grandparent and a parent is hard on a family, and the legal standard favors a fit parent. Whichever side you are on, it is worth asking first whether a conversation, a counselor, or mediation could produce an arrangement both households can live with. An agreement reached that way does not depend on proving anyone unfit.
If a parent is limiting contact because of a safety concern about a grandparent or someone in the grandparent's home, that concern belongs in front of the court. If a child is in danger, call 911. The National Domestic Violence Hotline is 1-800-799-7233.
A&M Law is a Missoula family law firm. See our family law page or the parenting plan practice page, and for how the best interest standard works, the best interest factors.
This page explains Montana law in general as of the 2025 Montana Code Annotated. It is not legal advice about your specific case.