When parents live in different states, or a child has recently moved, the first question in a custody dispute is which state's court may decide it. In Montana the answer comes from the Uniform Child Custody Jurisdiction and Enforcement Act, or UCCJEA, at MCA §§ 40-7-101 and following. The starting point is the child's home state. This page explains the Montana rules and is part of our Montana Divorce Guide.
What the UCCJEA Covers
The act uses older vocabulary than Montana's parenting statutes. A "child custody determination" is a judgment, decree, or other court order providing for legal custody, physical custody, or visitation with respect to a child, including permanent, temporary, initial, and modification orders. A Montana parenting plan is one. The term does not include an order about child support or another monetary obligation (MCA § 40-7-103(3)).
A "child custody proceeding" includes a proceeding for divorce or separation in which custody or visitation is an issue, along with paternity, guardianship, and protection from domestic violence proceedings (MCA § 40-7-103(4)). A case is "commenced" by the filing of the first pleading (MCA § 40-7-103(5)).
Home State: The Starting Point
"Home state" means the state in which a child lived with a parent or a person acting as a parent "for at least 6 consecutive months immediately before the commencement of a child custody proceeding" (MCA § 40-7-103(7)). For a baby under 6 months old, it is the state where the child has lived from birth. A period of temporary absence is counted as part of the 6 months.
A Montana court may make an initial custody determination only on one of four bases, and they are ranked.
| Basis | When Montana has jurisdiction | MCA |
|---|---|---|
| 1. Home state | Montana is the child's home state when the case is filed, or was the home state within 6 months before filing and the child is absent but a parent or person acting as a parent continues to live here. | § 40-7-201(1)(a) |
| 2. Significant connection | No other state is the home state, or the home state has declined, and the child and at least one parent have a significant connection with Montana other than mere physical presence, with substantial evidence available here. | § 40-7-201(1)(b) |
| 3. Other courts have declined | Every court with jurisdiction under the first two bases has declined because Montana is the more appropriate forum. | § 40-7-201(1)(c) |
| 4. No other state | No court of any state would have jurisdiction under the first three bases. | § 40-7-201(1)(d) |
These four bases are exclusive, and "physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient" (MCA § 40-7-201(2), (3)).
Divorce Jurisdiction Is a Separate Question
The rule for ending the marriage is different. A Montana court may enter a decree of dissolution if one spouse was domiciled here, or stationed here in the armed services, for 90 days before filing (MCA § 40-4-104(1)(a)). The home state rule for a child looks at 6 months, and at where the child lived.
So the two can come apart. A parent who moved to Montana three or four months ago may be able to file for dissolution here while another state remains the child's home state. The UCCJEA recognizes this: a court may decline to exercise custody jurisdiction "while still retaining jurisdiction over the divorce" (MCA § 40-7-108(4)). Child support orders are outside the act. See divorce when your spouse lives in another state and the residency requirement.
Exclusive, Continuing Jurisdiction
Once a Montana court has made a custody determination consistent with the act, it has "exclusive, continuing jurisdiction over the determination" until one of two things happens (MCA § 40-7-202(1)):
- a Montana court determines that neither the child, the child and one parent, nor the child and a person acting as a parent have a significant connection with Montana and that substantial evidence is no longer available here; or
- a Montana court or a court of another state determines that neither the child, a parent, nor any person acting as a parent presently resides in Montana.
In plain terms, if one parent stays in Montana, the Montana court that entered the plan generally remains the place to amend it, even after the child has lived elsewhere for more than 6 months. The Montana court may decide that it is an inconvenient forum and step aside (MCA § 40-7-202(2)).
The rule runs both ways. A Montana court may not modify another state's custody determination unless Montana would have jurisdiction to make an initial determination under the first two bases and either the other state's court gives up jurisdiction or a court determines that the child, the parents, and any person acting as a parent no longer reside in the other state (MCA § 40-7-203).
Temporary Emergency Jurisdiction
A Montana court has temporary emergency jurisdiction if the child is present in Montana and has been abandoned, or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse (MCA § 40-7-204(1)).
If another state has already made an order or a case is pending there, the Montana order must specify a period the court considers adequate for the person to obtain an order from the state with jurisdiction, and the Montana court must immediately communicate with the other court (MCA § 40-7-204(3), (4)). An emergency order does not move the whole case to Montana.
If you or your child are in danger, call 911. The National Domestic Violence Hotline is 1-800-799-7233. Our Montana Domestic Violence Guide explains orders of protection.
When Cases Are Filed in Two States
Several provisions deal with competing filings:
- Disclosure. In the first pleading or an attached affidavit, each party must state under oath, if reasonably ascertainable, the child's present address, where the child has lived during the last 5 years and with whom, and whether the party knows of any other proceeding concerning the child (MCA § 40-7-110(1)).
- First filed. A Montana court may not exercise jurisdiction if a custody proceeding was previously commenced in a court of another state that has jurisdiction substantially in conformity with the act, unless that proceeding has ended or been stayed. The Montana court stays its case and communicates with the other court (MCA § 40-7-107).
- Inconvenient forum. A court with jurisdiction may decline it after considering listed factors, including whether domestic violence has occurred and which state could best protect the parties and the child, how long the child has lived outside the state, distance, the parties' finances, and where the evidence is (MCA § 40-7-108(2)).
- Unjustifiable conduct. If a court has jurisdiction because the person invoking it engaged in unjustifiable conduct, the court must decline jurisdiction, with limited exceptions, and must generally charge that party with the other side's necessary and reasonable expenses (MCA § 40-7-109).
Taking a child to another state to gain an advantage in court can also violate a parenting plan or the criminal law. See relocating with a child for the lawful process.
Tribal Courts and Military Families
A Montana court must treat a tribe as if it were a state for purposes of the act's jurisdiction rules, and a custody proceeding that pertains to an Indian child is not subject to the act to the extent it is governed by the federal or Montana Indian Child Welfare Act (MCA § 40-7-135). If a tribal court may be involved, tell your lawyer at the start.
Service members should also see military divorce in Montana. Jurisdiction turns on dates and places, so write down where your child has lived, and when, before you talk with a lawyer. A&M Law's relocation practice page covers moves after a plan is in place.
This page explains Montana law in general as of the 2025 Montana Code Annotated. It is not legal advice about your specific case.