A partner or family member assault (PFMA) conviction does not, by itself, terminate anyone's parental rights in Montana. Under Montana's child abuse and neglect laws, termination can happen only in a separate proceeding, on specific statutory grounds, proved by clear and convincing evidence. That said, violence in a home can be the starting point of the process that leads there, so it is worth understanding how far the law can go and what stands in between. This page is part of our Montana Domestic Violence Guide.
Three Different Things That Get Confused
- A criminal sentence. The court in a PFMA case can impose jail, a fine, counseling, probation, and no contact conditions. It does not decide parental rights.
- A parenting plan. A district court in a family case can limit or supervise parenting time, and parenting rights can be suspended in the situation described in MCA § 40-4-219(8). A plan can be amended later. See PFMA and child custody.
- Termination of the parent and child legal relationship. In an abuse and neglect case this is governed by Title 41, chapter 3, part 6. It is not something the other parent obtains in a parenting plan case, and it "may be considered only after the filing of a petition" alleging the factual grounds for termination (MCA § 41-3-607(1)). Montana has other termination statutes, such as those tied to adoption, that this page does not cover.
The Statutory Grounds
A court "may order a termination of the parent-child legal relationship upon a finding established by clear and convincing evidence" that one of the following exists (MCA § 41-3-609(1)).
| Ground | Subsection |
|---|---|
| The parents have relinquished the child | (1)(a) |
| The child has been abandoned by the parents | (1)(b) |
| The child was born as a result of a felony in which sexual intercourse occurred, for which the parent was convicted | (1)(c) |
| The parent subjected a child to a circumstance in 41-3-423(2)(a) through (e): aggravated circumstances such as torture, chronic abuse, sexual abuse, or chronic severe neglect; homicide of a child; aggravated assault against a child; neglect causing serious bodily injury or death; or a prior involuntary termination that is relevant | (1)(d) |
| A putative father meets criteria in 41-3-423(3) | (1)(e) |
| The child is an adjudicated youth in need of care, a court-approved treatment plan was not complied with or was not successful, and the conduct or condition making the parent unfit is unlikely to change within a reasonable time | (1)(f) |
A PFMA conviction is not on the list. Neither is a conviction for strangulation of a partner or family member. Aggravated assault appears only when it was committed against a child.
The Route That Involves Domestic Violence
When violence between adults is the concern, the ground to understand is (1)(f). That ground has several steps, and each one is a point where a parent can change the outcome.
First, the child must be adjudicated a "youth in need of care," meaning a court has determined after a hearing that the child is or has been abused, neglected, or abandoned (MCA § 41-3-102(42)). Adjudication is decided by a preponderance of the evidence (MCA § 41-3-437(2)). Exposure to violence between adults can meet the abuse and neglect definitions only on the terms described in child protective services after a domestic call.
Second, there must be an appropriate treatment plan approved by the court, and the parent must have failed to comply with it or it must have been unsuccessful.
Third, the court must find that the conduct or condition making the parent unfit "is unlikely to change within a reasonable time." In deciding that, the court considers, among other things, "a history of violent behavior by the parent," excessive use of alcohol or drugs that affects the ability to care for the child, and present long-term confinement (MCA § 41-3-609(2)). The court gives primary consideration to the physical, mental, and emotional conditions and needs of the child (MCA § 41-3-609(3)).
A PFMA conviction can be offered as evidence of a history of violent behavior. That is how the criminal case connects to this one: as evidence, not as an automatic trigger.
The Safeguards
Montana's stated policy is to protect children "in a family environment and preserve the unity and welfare of the family whenever possible" (MCA § 41-3-101(1)(b)). Several rules carry that out.
- Reasonable efforts. The department "shall make reasonable efforts to prevent the necessity of removal of a child from the child's home and to reunify families that have been separated by the state" (MCA § 41-3-423(1)(a)). That includes identifying appropriate services and actively assisting parents in obtaining them.
- A higher standard of proof. The State must present clear and convincing evidence for an order terminating the relationship (MCA § 41-3-422(5)(a)(iv)).
- A lawyer. Any party has the right to counsel, and the court appoints the Office of State Public Defender for an indigent parent in a removal, placement, or termination proceeding (MCA § 41-3-425).
- A guardian ad litem for the child in any hearing on involuntary termination (MCA § 41-3-607(4)).
- A protection for the adult who was harmed. The definition of psychological abuse or neglect "may not be construed to hold a victim responsible for failing to prevent the crime against the victim" (MCA § 41-3-102(27)(c)).
The Clock That Matters Most
One provision deserves attention from any parent whose child has been placed out of the home. If a child has been in foster care under the physical custody of the State for 15 of the most recent 22 months, the best interests of the child "must be presumed to be served by termination of parental rights," and a petition to terminate must be filed unless an exception applies, such as the child being cared for by a relative (MCA § 41-3-604(1)).
For a parent with a pending criminal case, this means time matters. Jail, a no contact order that keeps you from participating in services, or a long delay in the criminal case can all use up months. Tell both your criminal defense lawyer and your lawyer in the child welfare case about every deadline in the other case.
What Lowers the Risk
No one can promise an outcome, but the statute itself shows what courts look at.
- Follow every order in every case, including no contact terms.
- If the department offers or the court approves a treatment plan, start it promptly and keep proof of what you complete.
- Complete any counseling ordered in the criminal case. A PFMA sentence requires an assessment and a minimum of 40 hours of counseling (MCA § 45-5-206(4)). See the PFMA counseling requirement.
- Stay in lawful contact with your child through whatever visits are allowed.
- Avoid new charges.
The Right Lawyer for Each Case
A&M Law defends PFMA and other domestic violence charges and handles family law matters such as parenting plans. An abuse and neglect proceeding under Title 41 is a different kind of case with its own appointed-counsel system, and a parent in one should have a lawyer for it. What we can do is make sure the criminal case is handled with that proceeding in mind, because a plea, a sentence, or a statement in one court will be read in the other. See also parenting plan factors and abuse and supervised visitation.
This page explains Montana law in general as of the 2025 Montana Code Annotated. It is not legal advice about your specific case.