When police respond to a domestic call and children are in the home, Montana law allows an additional charge: endangering the welfare of children under MCA § 45-5-622(4). It applies when a person knowingly commits partner or family member assault (PFMA) or one of three related offenses against a partner or family member in the presence of a child. It carries a minimum of 72 hours in county jail, and it can be charged once for each child. This page explains that subsection, the other child-related statutes, and the reporting duty that can bring in child protective services. It is part of our Montana Domestic Violence Guide.
The Domestic Violence Subsection
Under MCA § 45-5-622(4)(a), a person commits the offense if the person "knowingly commits an offense identified in 45-5-202, 45-5-206, 45-5-213, or 45-5-215 against a partner or family member in the presence of a child less than 18 years of age." Those four sections are aggravated assault, PFMA, assault with a weapon, and strangulation of a partner or family member.
The rest of the subsection fills in the details:
- Presence. "In the presence of a child" means "in the physical presence of a child or having knowledge that the child may see or hear an act listed in this subsection."
- Predominant aggressor only. Only the predominant aggressor, as determined under MCA § 46-6-311, may be charged.
- Separate offense. It may be charged in addition to the underlying offense, and each child may form the basis for an additional charge.
- Any child. A person may be charged regardless of the child's relationship to the person.
Because the subsection is built on one of the four underlying offenses, the State has to prove that offense as part of proving this one. If the underlying charge is not proved, this one has nothing to stand on.
The Penalty
A person convicted under subsection (4) "is guilty of a misdemeanor and shall be fined an amount not less than $100 or more than $1,000 and be imprisoned in the county jail not less than 72 hours or more than 1 year" (MCA § 45-5-622(6)(c)).
Compare that with a first-offense PFMA, where the jail minimum is 24 hours (MCA § 45-5-206(3)(a)(i)). The added charge carries a higher minimum than the charge it is attached to. With two children present and two added counts, the exposure grows again.
Separately from any added charge, the PFMA statute tells the sentencing judge to consider a minor's presence: if the offense was committed within the vision or hearing of a minor, the judge shall consider that as a factor at sentencing (MCA § 45-5-206(3)(a)(v)). See PFMA in front of children.
Other Child-Related Charges
| Offense | MCA | Penalty in the statute |
|---|---|---|
| Endangering the welfare of children, domestic offense in a child's presence | § 45-5-622(4) | County jail for 72 hours to 1 year and a fine of $100 to $1,000 |
| Endangering the welfare of children, violating a duty of care, protection, or support | § 45-5-622(1) | First: county jail up to 6 months, a fine up to $500, or both. Second: the fine limit rises to $1,000. |
| Assault on a minor (an assault under § 45-5-201 by an adult on a child under 14) | § 45-5-212 | State prison up to 5 years, a fine up to $50,000, or both; higher ranges if the child is under 36 months |
| Criminal child endangerment (listed conduct causing substantial risk of death or serious bodily injury to a child under 14) | § 45-5-628 | State prison up to 10 years, a fine up to $50,000, or both |
The general form of endangering the welfare of children applies to a parent, guardian, or other person supervising a child who "knowingly endangers the child's welfare by violating a duty of care, protection, or support" (MCA § 45-5-622(1)(a)). When the child is the person alleged to have been assaulted, the charge may be PFMA itself, since children are family members under that statute, or assault on a minor. See PFMA against a parent, sibling, or child.
Mandatory Reporting to DPHHS
The criminal charge is one track. Child protection is another. Under MCA § 41-3-201(1), listed professionals who "know or have reasonable cause to suspect, as a result of information they receive in their professional or official capacity, that a child is abused or neglected" must report the matter promptly to the Department of Public Health and Human Services. The list includes peace officers and other law enforcement officials, physicians and nurses, mental health professionals, teachers and school employees, and licensed social workers (MCA § 41-3-201(2)).
Does an incident between adults make a child "abused or neglected"? The child protection code defines psychological abuse or neglect as severe maltreatment that is injurious to the child's intellectual or psychological capacity to function and is identified as such by one of several listed licensed professionals. It adds that the term "includes but is not limited to the commission of acts of violence against another person residing in the child's home" and that it "may not be construed to hold a victim responsible for failing to prevent the crime against the victim" (MCA § 41-3-102).
So an officer, an emergency room nurse, or a school counselor who learns of the incident may make a report, and the department decides how to respond. That process has its own rules and its own consequences for parenting. A&M Law defends the criminal charge and also practices family law. A child protection proceeding brought by the State is a different kind of case, and a parent facing one should have a lawyer who handles that work.
How This Reaches a Parenting Case
A conviction, or even a pending charge, that involves children can be raised in a parenting plan dispute, and the criminal court's no contact order may name the children as protected persons. Read the order to see who is listed. Our pages on seeing your children with a no contact order and PFMA and child custody explain what to expect.
What a Defense Looks At
The added charge raises its own questions on top of the underlying one. Can the State prove the underlying offense? Was a child physically present, or can the State prove the accused knew a child might see or hear? Was the accused properly identified as the predominant aggressor? Children may also be treated as witnesses. See children as witnesses.
Do not question your children about what they saw, and do not discuss the case with them. A&M Law defends PFMA and related charges in Western Montana, and Ashley Hurlbert handles both criminal defense and child custody matters. If a child is in danger, call 911. The National Domestic Violence Hotline is 1-800-799-7233.
This page explains Montana law in general as of the 2025 Montana Code Annotated. It is not legal advice about your specific case.