Montana Parenting Plan Factors and Abuse: What the Statutes Say

Two Montana statutes decide how a domestic violence allegation or conviction enters a parenting case: MCA § 40-4-212, which lists the best interest factors, and MCA § 40-4-219, which governs amending an existing plan. This page quotes the parts that matter and explains what each one does. It is part of our Montana Domestic Violence Guide, and it goes deeper than the overview on PFMA and child custody.

The Best Interest Standard

The governing sentence is short: "The court shall determine the parenting plan in accordance with the best interest of the child" (MCA § 40-4-212(1)). The court must consider "all relevant parenting factors, which may include but are not limited to" a list of thirteen, lettered (a) through (m). The list includes the wishes of the parents and the child, the child's adjustment to home, school, and community, the mental and physical health of everyone involved, chemical dependency, continuity and stability of care, and the child's developmental needs.

Because the list is "not limited to" its items, a court can consider conduct that fits none of them neatly, such as a pattern of control or the violation of a court order.

Factor (f): Physical Abuse or Threat

Subsection (1)(f) reads in full: "physical abuse or threat of physical abuse by one parent against the other parent or the child."

Three points follow from the wording.

• No conviction is required. The factor describes conduct, not a criminal judgment. A family court can hear testimony, see photographs and messages, and make its own finding.
• Threats count. The factor reaches a "threat of physical abuse," not only an injury.
• Abuse of the other parent counts. The conduct does not have to be directed at the child.

The statute does not assign a weight to this factor, and it does not say abuse outweighs the others. The court weighs it with everything else it hears.

Factor (l): Contact With Both Parents

Subsection (1)(l) starts from a policy: frequent and continuing contact with both parents "is considered to be in the child's best interests." It then states the exception: "unless the court determines, after a hearing, that contact with a parent would be detrimental to the child's best interests."

In making that determination, the court "shall consider evidence of physical abuse or threat of physical abuse by one parent against the other parent or the child, including but not limited to whether a parent or other person residing in that parent's household has been convicted of any of the crimes enumerated in 40-4-219(8)(b)."

So the default favors contact, the exception requires a hearing, and evidence of abuse, including listed convictions, is what the court must look at in deciding whether the exception applies. A court that finds unrestricted contact detrimental has options short of ending contact, such as supervised visitation.

The Convictions Listed in § 40-4-219(8)(b)

Subsection (8) applies when "a parent or other person residing in that parent's household has been convicted of any of the crimes listed." These are the eleven crimes on the list.

Two details are easy to miss. First, the PFMA entry is limited to the type in subsection (1)(a) of the PFMA statute, purposely or knowingly causing bodily injury. The statute does not list the negligent weapon form in (1)(b) or the reasonable apprehension form in (1)(c). Second, aggravated assault and assault with a weapon are not on the list by name, even when the other person is a partner. Conduct behind any of those charges can still be considered under factor (f).

What an Objection Does

When a listed conviction exists, "the other parent or any other person who has been granted rights to the child pursuant to court order may file an objection to the current parenting order with the court" (MCA § 40-4-219(8)(a)). The process then runs on fixed deadlines:

• The objecting party gives notice as the Montana Rules of Civil Procedure provide.
• The other parent "has 21 days from the notice to respond."
• With no response in 21 days, "the parenting rights of that parent are suspended until further order of the court."
• If the parent responds and objects, "a hearing must be held within 30 days of the response."

Separately, subsection (3) says the court "shall presume a parent is not acting in the child's best interest if the parent does any of the acts specified in subsection (1)(a)(iv) or (8)." Subsection (1)(a)(iv) covers willfully and consistently refusing or frustrating the other parent's contact with the child. The statute does not say how the presumption is overcome, so that is argued on the evidence in each case.

Amending a Plan Without a Listed Conviction

Most amendment requests rest on the general rule in § 40-4-219(1): the court may amend a prior plan if facts that arose since the plan, or that were unknown to the court then, show "a change has occurred in the circumstances of the child" and the amendment "is necessary to serve the best interest of the child." A domestic incident after the plan was entered can be offered as that change. A parent who needs an immediate change can ask for an interim plan, which has its own affidavit requirements (MCA § 40-4-220).

Why This Matters Before a Plea

The criminal case and the parenting case read the same event through different statutes. Which subsection of the PFMA statute a conviction rests on, and whether there is a conviction at all, can decide whether subsection (8) applies. Whether a particular plea or sentence counts as a conviction for this purpose is something to ask your lawyer before you agree to anything. Our pages on plea agreements in PFMA cases and what PFMA is give the criminal side.

This page explains Montana law in general as of the 2025 Montana Code Annotated. It is not legal advice about your specific case.