An interim parenting plan is a temporary order that sets a child's living arrangements and time with each parent while a Montana divorce or parenting case is pending. Under MCA § 40-4-213, either party may move for one. The motion is supported by an affidavit, the court applies the best interest of the child standards, and the interim plan ends when a final parenting plan is adopted. Montana's statutes use "parenting plan" where many people would say custody and visitation. This page is part of the filing section of our Montana Divorce Guide.
Why Parents Ask for One
When parents separate, nothing in the law automatically says where the children sleep on Tuesday. The petition includes a proposed parenting plan, but a proposal is not an order. Until the court adopts something, each parent is relying on the other's cooperation.
If that cooperation is working, an order may not be needed right away. If it is not, an interim plan gives both parents and the children a schedule that can be enforced. Financial support during the same period is handled separately. See temporary orders during divorce.
Four Ways an Interim Plan Is Put in Place
| Path | How it works | MCA |
|---|---|---|
| By agreement | The parents agree to an interim plan. No supporting affidavit is required of a moving party when the parties agree. | § 40-4-220(1) |
| On affidavits, no objection | One parent moves with an affidavit. If there is no objection, the court may act solely on the basis of the affidavits. | § 40-4-213(1) |
| After a hearing | The court finds from the affidavits that there is adequate cause, sets a show cause hearing, and decides under the best interest standards. | §§ 40-4-213(1), 40-4-220(1) |
| Ex parte, before a hearing | In limited circumstances the court orders temporary living arrangements on one parent's affidavit, then requires all parties to appear within 21 days. | § 40-4-220(2) |
The Motion and the Affidavit
The affidavit requirement comes from MCA § 40-4-220(1). Unless the parties agree to an interim plan, the moving party "shall submit, together with the moving papers, an affidavit setting forth facts supporting the requested plan" and must give notice, with a copy of the affidavit, to the other parties, "who may file opposing affidavits."
The word to notice is facts. An affidavit is a sworn statement of what you have seen and done: who has handled school mornings, medical appointments, and bedtime, what each parent's work schedule is, where the child goes to school, and what you are proposing and why. Conclusions and criticism of the other parent carry less weight than specifics.
The court then screens the motion. It "shall deny the motion unless it finds that adequate cause for hearing the motion is established by the affidavits, based on the best interests of the child." If adequate cause is shown, the court sets a date for a hearing on an order to show cause why the requested plan should not be granted. Parenting proceedings must receive priority in being set for hearing (MCA § 40-4-216(1)).
How the Court Decides Without a Full Trial
An interim plan is decided on a short record, but under the full legal standard. The court may adopt an interim plan "under the standards of 40-4-212 after a hearing," and that section directs the court to determine the plan in accordance with the best interest of the child, considering all relevant parenting factors. Among those listed are:
- the wishes of the parents and of the child;
- the child's interaction with parents, siblings, and others who significantly affect the child;
- the child's adjustment to home, school, and community;
- the mental and physical health of everyone involved;
- physical abuse or threat of physical abuse by one parent against the other parent or the child;
- chemical dependency or chemical abuse by either parent;
- continuity and stability of care, and the child's developmental needs; and
- whether the child has frequent and continuing contact with both parents, which the statute considers to be in the child's best interests unless the court determines after a hearing that contact with a parent would be detrimental.
The statute does not prefer mothers or fathers, and it does not set a default schedule. Our pages on the best interest of the child factors and whether 50/50 parenting is the default go into detail.
Emergency Orders Before a Hearing
MCA § 40-4-220(2) allows a parent seeking an interim plan to ask for a temporary order on the child's living arrangements ex parte, meaning without the other parent being heard first. The request goes in the moving papers with an affidavit showing either:
- that no parenting plan has previously been ordered and the proposed arrangement would be in the child's best interest under § 40-4-212; or
- that a plan has been ordered, but an emergency has arisen in the child's present environment that endangers the child's physical, mental, or emotional health, and an immediate change is necessary to protect the child.
The court makes the order if it finds from the affidavits that the proposed plan is in the child's best interest, that the child's present environment endangers the child's physical, mental, or emotional health, and that the child would be protected by the interim plan. It must then require all parties to appear and show cause within 21 days why the interim plan should not remain in effect (MCA § 40-4-220(2)(b)).
This procedure is for genuine danger. If you or your child are in danger now, call 911. The National Domestic Violence Hotline is 1-800-799-7233. See also our page on divorce and domestic violence.
Why the Interim Period Matters Later
Legally, an interim plan is temporary. It is vacated when the final plan is adopted, and it is vacated if the case is dismissed unless the court continues it as a parenting proceeding (MCA § 40-4-213(2), (4)).
Practically, the interim period produces evidence. When the court decides the final plan, it considers the child's adjustment to home, school, and community and the continuity and stability of care. A schedule that has been working for the child is something a judge will want to hear about, and so is a parent's record of following, or not following, the interim order. That is a reason to propose an interim plan you believe is right for your child, not one chosen for leverage, and a reason never to interfere with the other parent's time. If the other parent is not complying, the remedy is a motion, not self-help. Your own obligations are not suspended by the other parent's noncompliance (MCA § 40-4-109).
Reaching an Interim Plan by Agreement
Parents who can agree avoid the affidavit contest altogether, since the affidavit requirement applies "unless the parties agree." An agreed interim plan can be detailed or simple, and it can be revisited as you learn what works for your children. Misty Gaubatz holds a Certificate in Mediation and has served as a guardian ad litem. Our page on cooperative parenting plans describes how the firm helps parents build a plan together, and our parenting and custody page describes representation when agreement is not possible.
For what the final document must contain, see the overview of 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.