PFMA in Front of Children: What Changes in Montana

When a child sees or hears an alleged partner or family member assault, three things can follow under Montana law. The judge must consider the child's presence at sentencing. The prosecutor can add a separate charge of endangering the welfare of a child. And the incident can be reported to the state's child protection agency. This page explains each one and is part of our Montana Domestic Violence Guide.

Three Separate Consequences

The Sentencing Factor

The PFMA statute says: "If the offense was committed within the vision or hearing of a minor, the judge shall consider the minor's presence as a factor at the time of sentencing" (MCA § 45-5-206(3)(a)(v)).

This provision does not change the sentencing range. A first offense still carries 24 hours to 1 year and a fine of $100 to $1,000. What it does is require the judge to take the child's presence into account when choosing a sentence within the range. The statute does not say how much weight to give it. See the PFMA penalties chart.

The Separate Charge: Endangering the Welfare of a Child

Montana's child endangerment statute has a subsection written for domestic cases. A person commits the offense "if the person also 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" (MCA § 45-5-622(4)(a)). Those four sections are aggravated assault, PFMA, assault with a weapon, and strangulation of a partner or family member.

Several details matter:

• It is in addition to the underlying charge. The statute calls it "a separate offense" that "may be charged in addition to" the assault (§ 45-5-622(4)(d)).
• Each child counts. "Each child identified in subsection (4)(a) may form the basis for additional charges."
• The child can be anyone's. A person may be charged "regardless of the child's relationship to the person" (§ 45-5-622(4)(e)).
• Only the predominant aggressor. "Only the predominant aggressor, as determined by 46-6-311, may be charged under this subsection" (§ 45-5-622(4)(c)).

A conviction under this subsection is a misdemeanor punished by a fine of $100 to $1,000 and county jail for 72 hours to 1 year (§ 45-5-622(6)(c)). That is a higher minimum jail term than a first-offense PFMA. More in endangering the welfare of children.

What "In the Presence of a Child" Means

The statute defines the phrase: "in the physical presence of a child or having knowledge that the child may see or hear an act listed in this subsection" (MCA § 45-5-622(4)(b)(ii)).

There are two routes. One is physical presence. The other does not require the child to be in the room, or even to have actually seen or heard anything. It requires that the accused knew the child may see or hear. A child upstairs in a bedroom, or in the back seat of a car, can come within that wording. What the accused knew is something the State has to prove, usually from the layout of the home, where the children were, and what was said.

Note the difference from the sentencing factor, which asks whether the offense was committed "within the vision or hearing of a minor." The two provisions use different words and do different jobs.

The Predominant Aggressor Limit

The endangerment subsection borrows a concept from the arrest statute. When officers respond to a complaint and it appears both people used force, they evaluate who was the predominant aggressor using a list of considerations (MCA § 46-6-311(2)(b)). The endangerment subsection may be charged only against that person. See when both people are arrested.

Child Protective Services Reports

The criminal case is one system. Child protection is another. Under MCA § 41-3-201, listed professionals, including peace officers, must report promptly when they know or have reasonable cause to suspect that a child is abused or neglected. Any other person may make a report.

Montana's child protection definitions touch on violence in the home. "Psychological abuse or neglect" means severe maltreatment that is injurious to the child's intellectual or psychological capacity to function and that is identified as such by a listed licensed professional, and the term "includes but is not limited to the commission of acts of violence against another person residing in the child's home" (MCA § 41-3-102). The same definition says it "may not be construed to hold a victim responsible for failing to prevent the crime against the victim."

A report does not mean children will be removed, and an investigation follows its own rules and timelines. If the state opens a case, you need a lawyer who handles child protection matters. See child protective services after a domestic call.

Parenting Cases and Children as Witnesses

An allegation that children were present often carries into family court. When a court decides a parenting plan, one of the listed factors is "physical abuse or threat of physical abuse by one parent against the other parent or the child" (MCA § 40-4-212(1)(f)). See PFMA and child custody.

Children who saw or heard an incident may also be interviewed. Do not question your children about what happened, tell them what to say, or ask anyone else to. If a no contact order lists them, follow it exactly. Your lawyer can address how any statement from a child is handled: see children as witnesses.

If you or a child is in danger, call 911. The National Domestic Violence Hotline is 1-800-799-7233. A&M Law defends PFMA charges in Western Montana and also practices family law: see our domestic violence defense page.

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