A dispute resolution clause is the part of a parenting plan that says what parents will do when they disagree in the future, before either one files a motion. Montana's parenting plan statute lists it among the provisions a final plan may include: "the method by which future disputes concerning the child will be resolved between the parents, other than court action" (MCA § 40-4-234(2)(i)). This page explains what such a clause can say, what happens if a parent ignores it, and where its limits are. It is part of our Montana Divorce Guide.
What the Statute Says
In every dissolution involving a child, the parents submit a proposed final parenting plan, and a final plan is incorporated into the decree (MCA § 40-4-234(1)). Subsection (2) then lists the provisions a plan "may include, at a minimum," based on the best interest of the child. Three of them concern future conflict:
- Periodic review of the plan when requested by either parent or the child, or when circumstances the parents foresee arise, such as the child reaching a certain age or a necessary change in the child's residence (§ 40-4-234(2)(f)).
- Sanctions that will apply if a parent fails to follow the plan, including contempt of court (§ 40-4-234(2)(g)).
- The method for resolving future disputes between the parents, other than court action (§ 40-4-234(2)(i)).
Separately, the court "may in its discretion order the parties to participate in a dispute resolution process to assist in resolving any conflicts between the parties regarding adoption of the parenting plan," and that process "may include counseling or mediation by a specified person or agency or court action" (MCA § 40-4-234(4)). Our guide to what a parenting plan must include covers the rest of the list.
What a Clause Can Cover
The statute leaves the design to the parents and the court. These are the choices a well-drafted clause makes. They are drafting points, not statutory requirements.
| Choice | What to decide |
|---|---|
| Which disputes it covers | All disagreements about the plan, or only named ones such as schooling, health care, or schedule changes |
| The method | Direct discussion first, then counseling or mediation. The statute speaks of a method "other than court action" |
| Who | A named mediator or counselor, or a way of choosing one |
| How it starts | Written notice from one parent to the other, and how long the other has to respond |
| Cost | How the neutral's fee is shared |
| What is excluded | Emergencies, safety concerns, child support enforcement, and anything else the parents want to take straight to court |
| Review points | Scheduled times to revisit the plan, such as when a child reaches a certain age (§ 40-4-234(2)(f)) |
A clause that says only "the parties will mediate" invites its own argument about who, when, and at whose expense. Specific terms reduce that risk. If mediation is the method, the mediation confidentiality statute applies to what is said there (MCA § 26-1-813). See mediation in a Montana divorce.
How the Clause Works Day to Day
The statute sets the baseline a clause builds on. Each parent may make decisions about the child's day-to-day care and control while the child is residing with that parent, and either parent may make emergency decisions affecting the child's safety or health. The clause comes into play for the bigger, shared decisions: "When mutual decisionmaking is designated in the parenting plan but cannot be achieved regarding a particular issue, the parents shall make a good faith effort to resolve the issue through any dispute resolution process provided for in the final parenting plan" (MCA § 40-4-234(5)).
Two points follow. The duty is a good faith effort, which is about how you participate and not about whether you reach agreement. And one parent's noncompliance is not a license for the other: "If a parent fails to comply with a provision of the parenting plan, the other parent's obligations under the parenting plan are not affected" (MCA § 40-4-234(6)). You may not withhold parenting time because the other parent skipped the process.
What Happens If a Parent Skips It
The best interest statute contains a rebuttable presumption aimed at this situation. A motion to amend a final parenting plan "is vexatious if a parent seeks to amend a final parenting plan without making a good faith effort to comply with the provisions of the parenting plan or with dispute resolution provisions of the final parenting plan" (MCA § 40-4-212(4)(b)). The presumption applies unless it is contrary to the best interest of the child.
That label has consequences. Attorney fees and costs must be assessed against a party seeking frivolous or repeated amendment if the court finds the amendment action is vexatious and constitutes harassment (MCA § 40-4-219(5)), and the adverse effects on a child of continuous and vexatious amendment actions are a listed best interest factor (MCA § 40-4-212(1)(m)). Following the clause, and being able to show that you did, protects you.
The Clause Does Not Close the Courthouse
A dispute resolution clause is a first step, not a waiver of the right to go to court. A court may amend a prior parenting plan if it finds, on facts that arose after the plan or were unknown to the court when it was entered, that a change has occurred in the child's circumstances and the amendment is necessary to serve the child's best interest (MCA § 40-4-219(1)).
Parents cannot contract that authority away. A separation agreement may limit later modification of some terms, but not terms concerning the support, parenting, or parental contact with the children (MCA § 40-4-201(6)). Our guide to amending a parenting plan explains the standard, and when a parent does not follow the plan covers enforcement.
Limits Where There Is Abuse
A clause that requires two parents to sit down together assumes that both can do so safely and on equal footing. Where that is not true, the law does not force it. Unless each party provides written, informed consent, a court may not authorize or permit continuation of mediated negotiations if it has reason to suspect that a party or a child has been physically, sexually, or emotionally abused by the other party (MCA § 40-4-301(2)).
If your family has a history of abuse, raise it when the plan is being written. The clause can exclude safety issues, allow each parent to go directly to court, or be left out. Physical abuse or threat of physical abuse by one parent against the other parent or the child is itself a best interest factor (MCA § 40-4-212(1)(f)). If you are in danger, call 911. The National Domestic Violence Hotline is 1-800-799-7233, and our Montana Domestic Violence Guide explains orders of protection.
Arbitration Clauses Need a Second Look
Some plans name arbitration, in which a private decision-maker rules, as the last step. Montana's family law arbitration statute limits that for children. An agreement to arbitrate a child-related dispute that arises after the agreement is made is unenforceable unless the parties affirm it in a record after the dispute arises, or the agreement was entered during a family law proceeding and the court approved or incorporated it in an order (MCA § 40-16-105(3)). Even then, a court confirms a child-related award only on finding that it is in the best interests of the child (MCA § 40-16-116(3)).
A&M Law helps parents write plans through its cooperative parenting plan process and represents individual parents in contested cases.
This page explains Montana law in general as of the 2025 Montana Code Annotated. It is not legal advice about your specific case.