House Bill No. 231

Introduced By Barnhart, brooke, eck, waterman, dowell, cocchiarella, sands, wyatt, kottel, halligan, hargrove, burnett



A Bill for an Act entitled: "An Act generally revising domestic relations statutes regarding the custody and visitation of children involved in a marriage dissolution; revising applicable terminology; requiring adoption of a final parenting plan that includes specific provisions in the best interests of the child, an option for dispute resolution or mediation except in cases of proven child or spousal abuse, and an option for periodic review of the parenting plan; allowing adoption of an interim parenting plan during the time dissolution proceedings are pending; requiring designation of one parent as custodian for applicability of federal or state laws; requiring that parents receive information regarding parental responsibility and contact with the child in disputed cases; allowing the trial court to determine the appropriate level of evaluation necessary to establish parenting arrangements; providing a fee for filing a petition for contested amendment of a parenting plan to defray the costs of implementing the court-ordered COURT-SANCTIONED educational program on the effects of divorce on children in disputed cases and the cost of parenting education when ordered for the investigation and preparation of a report concerning parenting arrangements; revising appropriate terminology in grandparent visitation statutes and applicable criminal statutes; amending sections 25-1-201, 40-1-105, 40-1-213, 40-1-402, 40-4-103, 40-4-104, 40-4-105, 40-4-109, 40-4-110, 40-4-123, 40-4-201, 40-4-204, 40-4-205, 40-4-211, 40-4-212, 40-4-213, 40-4-214, 40-4-215, 40-4-216, 40-4-217, 40-4-219, 40-4-220, 40-4-221, 40-4-225, 40-4-226, 40-4-302, 40-4-307, 40-6-211, 40-6-221, 40-9-101, 40-9-102, 45-5-304, 45-5-631, 45-5-632, and 45-5-633, MCA; repealing sections 40-4-222, 40-4-223, 40-4-224, 40-6-222, 40-6-223, 40-6-224, and 40-6-231, MCA; and providing an applicability date."



Be it enacted by the Legislature of the State of Montana:



Section 1.  Section 25-1-201, MCA, is amended to read:

"25-1-201.   Fees of clerk of district court. (1) The clerk of the district court shall collect the following fees:

(a)  at the commencement of each action or proceeding, except a petition for dissolution of marriage, from the plaintiff or petitioner, $80; for filing a complaint in intervention, from the intervenor, $80; for filing a petition for dissolution of marriage, a fee of $120; and for filing a petition for legal separation, a fee of $120; and for filing a petition for a contested amendment of a final parenting plan, a fee of $120;

(b)  from each defendant or respondent, on appearance, $60;

(c)  on the entry of judgment, from the prevailing party, $45;

(d)  for preparing copies of papers on file in the clerk's office, 50 cents per page for the first five pages of each file, per request, and 25 cents per additional page;

(e)  for each certificate, with seal, $2;

(f)  for oath and jurat, with seal, $1;

(g)  for search of court records, 50 cents for each year searched, not to exceed a total of $25;

(h)  for filing and docketing a transcript of judgment or transcript of the docket from all other courts, the fee for entry of judgment provided for in subsection (1)(c);

(i)  for issuing an execution or order of sale on a foreclosure of a lien, $5;

(j)  for transmission of records or files or transfer of a case to another court, $5;

(k)  for filing and entering papers received by transfer from other courts, $10;

(l)  for issuing a marriage license, $30;

(m)  on the filing of an application for informal, formal, or supervised probate or for the appointment of a personal representative or the filing of a petition for the appointment of a guardian or conservator, from the applicant or petitioner, $70, which includes the fee for filing a will for probate;

(n)  on the filing of the items required in 72-4-303 by a domiciliary foreign personal representative of the estate of a nonresident decedent, $55;

(o)  for filing a declaration of marriage without solemnization, $30;

(p)  for filing a motion for substitution of a judge, $100.

(2)  Except as provided in subsections (3) through (8) (9), 32% of all fees collected by the clerk of the district court must be deposited in and credited to the district court fund. If no district court fund exists, that portion of the fees must be deposited in the general fund for district court operations. The remaining portion of the fees must be remitted to the state to be deposited as provided in 19-5-404.

(3)  In the case of a fee collected for issuing a marriage license or filing a declaration of marriage without solemnization, $14 must be deposited in and credited to the state general fund, $6.40 must be deposited in and credited to the county general fund, and $9.60 must be remitted to the state to be deposited as provided in 19-5-404.

(4)  Of the fee for filing a petition for dissolution of marriage or legal separation, $40 must be deposited in the state general fund, $35 must be remitted to the state to be deposited as provided in 19-5-404, $5 must be deposited in the children's trust fund account established by 41-3-702, and $20 must be deposited in and credited to the district court fund. If no district court fund exists, the $20 must be deposited in the general fund for district court operations.

(5)  (a) Before the percentages contained in subsection (2) are applied and the fees deposited in the district court fund or the county general fund or remitted to the state, the clerk of the district court shall deduct from the following fees the amounts indicated:

(i)  at the commencement of each action or proceeding and for filing a complaint in intervention as provided in subsection (1)(a), $35;

(ii) from each defendant or respondent, on appearance, as provided in subsection (1)(b), $25;

(iii) on the entry of judgment as provided in subsection (1)(c), $15; and

(iv) from the applicant or petitioner, on the filing of an application for probate or for the appointment of a personal representative or on the filing of a petition for appointment of a guardian or conservator, as provided in subsection (1)(m), $15.

(b)  The clerk of the district court shall deposit the money deducted in subsection (5)(a) in the county general fund for district court operations unless the county has a district court fund. If the county has a district court fund, the money must be deposited in that fund.

(6)  The fee for filing a motion for substitution of a judge as provided in subsection (1)(p) must be remitted to the state to be deposited as provided in 19-5-404.

(7)  Fees collected under subsections (1)(d) through (1)(i) must be deposited in the district court fund. If no district court fund exists, fees must be deposited in the general fund for district court operations.

(8)  The clerk of the district court shall remit to the credit of the state general fund $20 of each fee collected under the provisions of subsections (1)(a) through (1)(c), (1)(m), and (1)(n) to fund a portion of judicial salaries.

(9) The fee for filing a petition for a contested amendment of a parenting plan must be remitted by the clerk of the district court to the credit of the district court to defray the costs of the court-sponsored COURT-SANCTIONED educational program concerning the effects of dissolution of marriage on children, as required in 40-4-226, and to defray the expense of education when ordered for the investigation and preparation of a report concerning parenting arrangements, as provided in 40-4-215(2)(a)."



Section 2.  Section 40-1-105, MCA, is amended to read:

"40-1-105.   Application of the Montana Rules of Civil Procedure. (1) Except for proceedings coming under the Uniform Child Custody Jurisdiction Act, the Montana Rules of Civil Procedure apply to all proceedings under this chapter, except as otherwise provided in this chapter.

(2)  A proceeding for declaration of invalidity of marriage shall must be entitled, "In re the Marriage of .......... and ............". A custody parenting or support proceeding shall must be entitled, "In re the (custody) (parenting) (support) of ........".

(3)  The initial pleading in all proceedings under this chapter shall must be denominated a petition. A responsive pleading shall must be denominated a response. Other pleadings, and all pleadings in other matters under this chapter, shall must be denominated as provided in the Montana Rules of Civil Procedure.

(4)  In this chapter, "decree" includes "judgment"."



Section 3.  Section 40-1-213, MCA, is amended to read:

"40-1-213.   Judicial approval. (1) The district court may order the clerk of the district court to issue a marriage license and a marriage certificate form to a party aged 16 or 17 years of age who has no parent capable of consenting to his the party's marriage or has the consent of both parents or of the parent having the actual care, custody parenting authority, and control to his the party's marriage, if capable of giving consent, or of his the party's guardian. The court must require both parties to participate in a period of marriage counseling involving at least two separate counseling sessions not less than 10 days apart with a designated counselor as a condition of the order for issuance of a marriage license and a marriage certificate form under this section.

(2)  A marriage license and a marriage certificate form may be issued under this section only if the court finds that the underaged party is capable of assuming the responsibilities of marriage and the marriage will serve his the party's best interest interests. Pregnancy alone does not establish that the best interest interests of the party will be served.

(3)  The district court shall authorize performance of a marriage by proxy upon the showing required by the provisions on solemnization."



Section 4.  Section 40-1-402, MCA, is amended to read:

"40-1-402.   Declaration of invalidity. (1) The district court shall enter its decree declaring the invalidity of a marriage entered into under the following circumstances:

(a)  a party lacked capacity to consent to the marriage at the time that the marriage was entered into, either because of mental incapacity or infirmity or because of the influence of alcohol, drugs, or other incapacitating substances, or a party was induced to enter into a marriage by force or duress or by fraud involving the essentials of marriage;

(b)  a party lacks the physical capacity to consummate the marriage by sexual intercourse, and at the time that the marriage was entered into, the other party did not know of the incapacity;

(c)  a party was under the age of 16 years of age or was aged 16 or 17 years of age and did not have the consent of the party's parents or guardian or judicial approval; or

(d)  the marriage is prohibited.

(2)  A declaration of invalidity under subsections (1)(a) through (1)(c) may be sought by any of the following persons and must be commenced within the times specified, but in no event may a declaration of invalidity may not be sought after the death of either party to the marriage:

(a)  for lack of capacity to consent because of mental incapacity or infirmity, no later than 1 year after the petitioner obtained knowledge of the described condition;

(b)  for lack of capacity to consent because of the influence of alcohol, drugs, or other incapacitating substances, no later than 1 year after the petitioner obtained knowledge of the described condition;

(c)  for lack of capacity to consent because of force, duress, or fraud, no later than 2 years after the petitioner obtained knowledge of the described condition;

(d)  for the reason set forth in subsection (1)(b), by either party, no later than 4 years after the petitioner obtained knowledge of the described condition;

(e)  for the reason set forth in subsection (1)(c), by the underaged party or the party's parent or guardian, prior to before the time that the underaged party reaches the age at which the party could have married without satisfying the omitted requirement.

(3)  A declaration of invalidity for the reason set forth in subsection (1)(d) may be sought by either party, the legal spouse in case of a bigamous marriage, the county attorney, or a child of either party, at any time prior to before the death of one of the parties.

(4)  Children born of a marriage declared invalid are legitimate.

(5)  Unless the court finds, after a consideration of all relevant circumstances, including the effect of a retroactive decree on third parties, that the interests of justice would be served by making the decree not retroactive, it shall declare the marriage invalid as of the date of the marriage. The provisions of chapter 4 relating to property rights of the spouses, maintenance, support, and custody parenting of children on dissolution of marriage are applicable to nonretroactive decrees of invalidity.

(6)  The clerk of the court shall give notice of the entry of a decree declaring the invalidity of a marriage:

(a)  if the marriage is registered in this state, to the clerk of the district court of the county where the marriage is registered, who shall enter the fact of invalidity in the book in which the marriage license and certificate are recorded; or

(b)  if the marriage is registered in another jurisdiction, to the appropriate official of that jurisdiction, with the request that the official enter the fact of invalidity in the appropriate record."



Section 5.  Section 40-4-103, MCA, is amended to read:

"40-4-103.   Application of the Montana Rules of Civil Procedure. (1) Except for proceedings coming under the Uniform Child Custody Jurisdiction Act, the Montana Rules of Civil Procedure apply to all proceedings under this chapter, except as otherwise provided in this chapter.

(2)  A proceeding for dissolution of marriage or legal separation shall must be entitled, "In re the Marriage of .......... and ............". A custody parenting or support proceeding shall must be entitled, "In re the (custody) (parenting) (support) of ........".

(3)  The initial pleading in all proceedings under this chapter shall must be denominated a petition. A responsive pleading shall must be denominated a response. Other pleadings, and all pleadings in other matters under this chapter, shall must be denominated as provided in the Montana Rules of Civil Procedure.

(4)  In this chapter, "decree" includes "judgment".

(5)  A decree of dissolution or of legal separation, if made, shall may not be awarded to one of the parties but shall must provide that it affects the status previously existing between the parties in the manner decreed."



Section 6.  Section 40-4-104, MCA, is amended to read:

"40-4-104.   Dissolution of marriage -- legal separation. (1) The district court shall enter a decree of dissolution of marriage if:

(a)  the court finds that one of the parties, at the time the action was commenced, was domiciled in this state or was stationed in this state while a member of the armed services and that the domicile or military presence has been maintained for 90 days next preceding the making of the findings;

(b)  the court finds that the marriage is irretrievably broken, which findings shall must be supported by evidence:

(i)  that the parties have lived separate and apart for a period of more than 180 days next preceding the commencement of this proceeding; or

(ii) that there is serious marital discord which that adversely affects the attitude of one or both of the parties towards the marriage;

(c)  the court finds that the conciliation provisions of the Montana Conciliation Law and of 40-4-107 either do not apply or have been met; and

(d)  to the extent it has jurisdiction to do so, the court has considered, approved, or made provision for child custody parenting, the support of any child entitled to support, the maintenance of either spouse, and the disposition of property.

(2)  If a party requests a decree of legal separation rather than a decree of dissolution of marriage, the court shall grant the decree in that form unless the other party objects."



Section 7.  Section 40-4-105, MCA, is amended to read:

"40-4-105.   Procedure -- commencement -- pleadings -- abolition of existing defenses. (1) The verified petition in a proceeding for dissolution of marriage or legal separation shall must allege that the marriage is irretrievably broken and shall must set forth:

(a)  the age, occupation, and residence of each party and his the party's length of residence in this state;

(b)  the date of the marriage and the place at which it was registered;

(c)  that the jurisdictional requirements of 40-4-104 exist and that the marriage is irretrievably broken in that either:

(i)  the parties have lived separate and apart for a period of more than 180 days next preceding the commencement of this proceeding; or

(ii) there is serious marital discord which that adversely affects the attitude of one or both of the parties towards the marriage, and there is no reasonable prospect of reconciliation;

(d)  the names, ages, and addresses of all living children of the marriage and whether the wife is pregnant;

(e)  any arrangements as to support, custody, and visitation of the children and maintenance of a spouse; and

(f)  a proposed parenting plan, if applicable; and

(g) the relief sought.

(2)  Either or both parties to the marriage may initiate the proceeding.

(3)  If a proceeding is commenced by one of the parties, the other party must be served in the manner provided by the Montana Rules of Civil Procedure and may within 20 days after the date of service file a verified response. No A decree may not be entered until 20 days after the date of service.

(4)  Previously existing defenses to divorce and legal separation, including but not limited to condonation, connivance, collusion, recrimination, insanity, and lapse of time, are abolished.

(5)  The court may join additional parties proper for the exercise of its authority to implement this chapter."



Section 8.  Section 40-4-109, MCA, is amended to read:

"40-4-109.   Independence of provisions of decree or temporary order. If a party fails to comply with a provision of a decree or temporary order or injunction, the obligation of the other party to make payments for support or maintenance or to permit visitation parental contact with the child is not suspended but he the party may move the court to grant an appropriate order."



SECTION 9.  SECTION 40-4-110, MCA, IS AMENDED TO READ:

"40-4-110.   Costs -- attorney's professional fees. (1) The court from time to time, after considering the financial resources of both parties, may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under chapters 1 and 4 of this title and for attorney's professional fees, including sums for legal and professional services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgment. The court may order that the amount be paid directly to the attorney professional, who may enforce the order in his the professional's name.

(2) The purpose of this section is to ensure that both parties have timely and equitable access to marital financial resources for costs incurred before, during, and after a proceeding under chapters 1 and 4."



Section 10.  Section 40-4-123, MCA, is amended to read:

"40-4-123.   Jurisdiction and venue. (1) District courts, municipal courts, justices' courts, and city courts have concurrent jurisdiction to hear and issue orders under 40-4-121.

(2)  The municipal judge, justice of the peace, or city court judge shall on motion suspend all further proceedings in the action and certify the pleading and any orders to the clerk of the district court of the county where the action was begun if an action for declaration of invalidity of a marriage, legal separation, or dissolution of marriage or for child custody parenting is pending between the parties. From the time of the certification of the pleadings and any orders to the clerk, the district court has the same jurisdiction over the action as if it had been commenced in district court.

(3)  An action brought under 40-4-121 may be tried in the county in which either party resides or in which the physical abuse was committed.

(4)  The right to petition for relief may not be denied because the plaintiff has vacated the residence or household to avoid abuse."



Section 11.  Section 40-4-201, MCA, is amended to read:

"40-4-201.   Separation agreement. (1) To promote amicable settlement of disputes between parties to a marriage attendant upon their separation or the dissolution of their marriage, the parties may enter into a written separation agreement containing provisions for disposition of any property owned by either of them, maintenance of either of them, and support, custody parenting, and visitation of parental contact with their children. In cases in which children are involved, the separation agreement must MAY contain a parenting plan as required in [section 19 20].

(2)  In a proceeding for dissolution of marriage or for legal separation, the terms of the separation agreement, except those providing for the support, custody parenting, and visitation of parental contact with children, are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the separation agreement is unconscionable.

(3)  If the court finds the separation agreement unconscionable, it may request that the parties to submit a revised separation agreement or it may make orders for the disposition of property, maintenance, and support.

(4)  If the court finds that the separation agreement is not unconscionable as to disposition of property or maintenance and not unsatisfactory as to support:

(a)  unless the separation agreement provides to the contrary, its terms shall must be set forth in the decree of dissolution or legal separation and the parties shall be ordered to perform them; or

(b)  if the separation agreement provides that its terms shall may not be set forth in the decree, the decree shall must identify the separation agreement and state that the court has found the terms not unconscionable.

(5)  Terms of the agreement set forth in the decree are enforceable by all remedies available for enforcement of a judgment, including contempt, and are enforceable as contract terms.

(6)  Except for terms concerning the support, custody parenting, or visitation of parental contact with the children, the decree may expressly preclude or limit modification of terms set forth in the decree if provided for in the separation agreement so provides. Otherwise, terms of a separation agreement set forth in the decree are automatically modified by modification of the decree."



Section 12.  Section 40-4-204, MCA, is amended to read:

"40-4-204.   Child support -- orders to address health insurance -- withholding of child support. (1) In a proceeding for dissolution of marriage, legal separation, maintenance, or child support, the court shall order either or both parents owing a duty of support to a child to pay an amount reasonable or necessary for the child's support, without regard to marital misconduct.

(2)  The court shall consider all relevant factors, including:

(a)  the financial resources of the child;

(b)  the financial resources of the custodial parent parents;

(c)  the standard of living that the child would have enjoyed had the marriage not been dissolved;

(d)  the physical and emotional condition of the child and the child's educational and medical needs;

(e)  the financial resources and needs of the noncustodial parent;

(f)  the age of the child;

(g)(f)  the cost of day care for the child;

(h)(g)  any custody arrangement parenting plan that is ordered or decided upon; and

(i)(h)  the needs of any person, other than the child, whom either parent is legally obligated to support.

(3)  (a) Whenever a court issues or modifies an order concerning child support, the court shall determine the child support obligation by applying the standards in this section and the uniform child support guidelines adopted by the department of public health and human services pursuant to 40-5-209. The guidelines must be used in all cases, including cases in which the order is entered upon the default of a party and those in which the parties have entered into an agreement regarding the support amount. A verified representation of the defaulting parent's income, based on the best information available, may be used when a parent fails to provide financial information for use in applying the guidelines. The amount determined under the guidelines is presumed to be an adequate and reasonable support award, unless the court finds by clear and convincing evidence that the application of the standards and guidelines is unjust to the child or to any of the parties or that it is inappropriate in that particular case.

(b)  If the court finds that the guideline amount is unjust or inappropriate in a particular case, it shall state its reasons for that finding. Similar reasons must also be stated in a case in which the parties have agreed to a support amount that varies from the guideline amount. Findings that rebut and vary the guideline amount must include a statement of the amount of support that would have ordinarily been ordered under the guidelines.

(c)  If the court does not order a parent owing a duty of support to a child to pay any amount for the child's support, the court shall state its reasons for not ordering child support.

(4)  Each temporary or final district court judgment, decree, or order establishing a child support obligation under this title and each modification of a final order for child support must include a medical support order as provided for in Title 40, chapter 5, part 8.

(5)  (a) Unless the court makes a written exception under 40-5-315 or 40-5-411 and the exception is included in the support order, a support obligation established by judgment, decree, or order under this section, whether temporary or final, and each modification of an existing support obligation under 40-4-208 must be enforced by immediate or delinquency income withholding, or both, under Title 40, chapter 5, part 3 or 4. A support order that omits the written exceptions provided in 40-5-315 or 40-5-411 or that provides for a payment arrangement inconsistent with this section is nevertheless subject to withholding for the payment of support without need for an amendment to the support order or for any further action by the court.

(b)  If an obligor is exempt from immediate income withholding, the district court judgment or order must include a warning statement that if the obligor is delinquent in the payment of support, the obligor's income may be subject to income withholding procedures under Title 40, chapter 5, part 3 or 4. Failure to include a warning statement in a judgment or order does not preclude the use of withholding procedures.

(c)  If a support order subject to income withholding is expressed in terms of a monthly obligation, the order may be annualized and withheld on a weekly or biweekly basis, corresponding to the obligor's regular pay period. When an order is annualized and withheld on a weekly or biweekly basis under this section, the support withheld from the obligor may be retained by the obligee when it exceeds the obligor's monthly support obligation if the excess support is a result of annualized withholding.

(6)  For the purposes of income withholding under subsection (5), each district court judgment, decree, or order that establishes or modifies a child support obligation must include a provision requiring the parent obligated to pay support to inform the court and, if the department of public health and human services is providing services under Title IV-D of the Social Security Act for the enforcement of the judgment, decree, or order, the department, of the following:

(a)  the name and address of the parent's current employer;

(b)  whether the parent has access to health insurance through an employer or other group; and

(c)  if insurance coverage is available, the health insurance policy information.

(7)  Each district court judgment, decree, or order establishing a final child support obligation under this part and each modification of a final order for child support must contain a statement that the order is subject to review and modification by the department of public health and human services upon the request of the department or a party under 40-5-271 through 40-5-273 when the department is providing services under Title IV-D of the Social Security Act for the enforcement of the order.

(8)  (a) A district court judgment, decree, or order that establishes or modifies a child support obligation must include a provision requiring the child support OBLIGATION to be paid, WITHOUT NEED FOR FURTHER COURT ORDER:

(I) TO THE PERSON WITH WHOM THE CHILD RESIDES BY LEGAL ORDER;

(II) IF THE PERSON WITH WHOM THE CHILD LEGALLY RESIDES VOLUNTARILY OR INVOLUNTARILY RELINQUISHES PHYSICAL CARE AND CONTROL OF THE CHILD TO ANOTHER PERSON, ORGANIZATION, OR AGENCY, TO THE PERSON, ORGANIZATION, OR AGENCY TO WHOM PHYSICAL CUSTODY HAS BEEN RELINQUISHED;

(III) IF ANY OTHER PERSON, ORGANIZATION, OR AGENCY IS ENTITLED BY LAW, ASSIGNMENT, OR SIMILAR REASON TO RECEIVE OR COLLECT THE CHILD SUPPORT OBLIGATION, TO THE PERSON, ORGANIZATION, OR AGENCY HAVING THE RIGHT TO RECEIVE OR COLLECT THE PAYMENT; OR

(IV) TO THE COURT FOR THE BENEFIT OF THE MINOR CHILD to:

(i)  the legal custodian of the minor child;

(ii) (A) any other person, organization, or agency having legal physical custody of the minor child under a legal assignment of rights; or

(B)  the court for the benefit of the minor child;

(iii) any other person or agency designated as caretaker of the minor child by agreement of the legal custodian; or

(iv) any assignee or other person, organization, or agency authorized to receive or collect child support pursuant to the child support guidelines adopted under 40-5-209.

(b)  A judgment, decree, or order that omits the provision required by subsection (8)(a) is subject to the requirements of subsection (8)(a) without need for an amendment to the judgment, decree, or order or for any further action by the court."



Section 13.  Section 40-4-205, MCA, is amended to read:

"40-4-205.   Representation of child Guardian ad litem. (1) The court may appoint a guardian ad litem to represent the interests of a minor dependent child with respect to the child's support, custody parenting, and visitation parental contact. The guardian ad litem may be an attorney. The county attorney, a deputy county attorney, if any, or the department of public health and human services or any of its staff may not be appointed for this purpose.

(2)  The guardian ad litem has the following general duties:

(a)  to conduct investigations that the guardian ad litem considers necessary to ascertain the facts related to the child's support, custody parenting, and visitation parental contact;

(b)  to interview or observe the child who is the subject of the proceeding;

(c)  to make written reports to the court concerning the child's support, custody parenting, and visitation parental contact;

(d)  to appear and participate in all proceedings to the degree necessary to adequately represent the child and make recommendations to the court concerning the child's support, custody parenting, and visitation parental contact; and

(e)  to perform other duties as directed by the court.

(3)  The guardian ad litem has access to court, medical, psychological, law enforcement, social services, and school records pertaining to the child and the child's siblings and parents or custodians caretakers.

(4)  The court shall enter an order for costs and fees in favor of the child's guardian ad litem. The order must be made against either or both parents, except that if the responsible party is indigent, the costs must be waived."



Section 14.  Section 40-4-211, MCA, is amended to read:

"40-4-211.   Child custody jurisdiction Jurisdiction -- commencement of parenting proceedings. (1) A court of this state competent to decide child custody parenting matters has jurisdiction to make a child custody parenting authority determination by initial or modification amended decree if:

(a)  this state:

(i)  is the home state of the child at the time of commencement of the proceedings; or

(ii) had been the child's home state within 6 months before commencement of the proceeding proceedings and the child is absent from this state because of his the child's removal or retention by a any person claiming his custody or for other reason and a parent or person acting as parent continues to live in this state; or

(b)  it is in the best interest of the child that a court of this state assume jurisdiction because:

(i)  the child and his the parents or the child and at least one contestant have a significant connection with this state; and

(ii) there is available in this state substantial evidence concerning the child's present or future care, protection, training, and personal relationships; or

(c)  the child is physically present in this state and:

(i)  has been abandoned; or

(ii) it is necessary in an emergency to protect him the child because he the child has been subjected to or threatened with mistreatment or abuse or is neglected or dependent; or

(d)  (i) no other state has jurisdiction under prerequisites substantially in accordance with subsection (1)(a), (1)(b), or (1)(c) or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine custody of parenting authority over OF the child; and

(ii) it is in his the child's best interest that the court assume jurisdiction.

(2)  Except under subsections (1)(c) and (1)(d), physical presence in this state of the child or of the child and one of the contestants is not alone sufficient to confer jurisdiction on a court of this state to make a child custody parenting authority determination.

(3)  Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody parenting authority OF THE CHILD.

(4)  A child custody parenting plan proceeding is commenced in the district court:

(a)  by a parent, by filing a petition:

(i)  for dissolution or legal separation; or

(ii) for custody of the child parenting authority in the county in which he the child is permanently resident or found; or

(b)  by a person other than a parent, by filing a petition for custody of the child parenting authority in the county in which he the child is permanently resident or found, but only if he the child is not in the physical custody of physically residing with one of his the child's parents.

(5)  Notice of a child custody parenting proceeding shall must be given to the child's parent, guardian, custodian caretaker, those persons having physical custody of with whom the child is physically residing, and all other contestants, who may appear, be heard, and file a responsive pleading. The court, upon a showing of good cause, may permit intervention of other interested parties."



Section 15.  Section 40-4-212, MCA, is amended to read:

"40-4-212.   Best interest interests INTEREST of child. (1) The court shall determine custody the parenting plan in accordance with the best interest interests INTEREST of the child. The court shall consider all relevant parenting factors, including WHICH MAY INCLUDE but ARE not limited to:

(a)  the wishes of the child's parent or parents as to custody;

(b)  the wishes of the child as to a custodian;

(c)  the interaction and interrelationship of the child with the child's parent or parents and siblings and with any other person who may significantly affect affects the child's best interest;

(d)  the child's adjustment to home, school, and community;

(e)  the mental and physical health of all individuals involved;

(f)  physical abuse or threat of physical abuse by one parent against the other parent or the child; and

(g)  chemical dependency, as defined in 53-24-103, or chemical abuse on the part of either parent;

(h) continuity and stability of care;

(i) developmental needs of the child;

(j) whether a parent has knowingly failed to pay birth-related costs that the parent is able to pay, which is considered to be not in the child's best interests;

(k) whether a parent has knowingly failed to financially support a child that the parent is able to support, which is considered to be not in the child's best interests;

(l) whether the child has frequent and continuing contact with both parents, which is considered to be in the child's best interests 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).

(m) adverse effects on the child resulting from continuous and vexatious parenting plan amendment actions.

(2)  A de facto custody parenting arrangement, in the absence of a prior custody parenting decree, does not require the child's parent or parents to prove the factors set forth in 40-4-219.

(3)  The following are rebuttable presumptions and apply unless contrary to the best interest of the child:

(a)  Custody should be granted to the parent who has provided most of the primary care during the child's life.

(b)  A custody parenting plan action brought by a parent within 6 months after a child support action against that parent is vexatious.

(b) A motion to amend a final parenting plan pursuant to 40-4-219 is vexatious if a parent seeks to amend a final parenting plan without making a good faith effort to comply with the provisions of the parenting plan or with dispute resolution provisions of the final parenting plan.

(4)  The following are rebuttable presumptions:

(a)  A knowing failure to pay birth-related costs that the person is able to pay is not in the best interest of the child.

(b)  Failure to pay child support that the person is able to pay is not in the best interest of a child in need of the child support."



Section 16.  Section 40-4-213, MCA, is amended to read:

"40-4-213.   Temporary orders Interim parenting plan. (1) A party to a custody parenting proceeding may move for a temporary custody order an interim parenting plan. The motion must be supported by an affidavit as provided in 40-4-220(1). The court may award temporary custody adopt an interim parenting plan under the standards of 40-4-212 after a hearing or under the standards of 40-4-212 and 40-4-220(2) before a hearing. If there is no objection, the court may act solely on the basis of the affidavits.

(2)  If a proceeding for dissolution of marriage or legal separation is dismissed, any temporary custody order interim parenting plan is vacated unless a parent or the child's custodian moves that the proceeding continue as a custody parenting proceeding and the court finds, after a hearing, that the circumstances of the parents and the best interest interests of the child require that a custody decree parenting plan be issued adopted. A CHILD SUPPORT DELINQUENCY EXISTING AT THE TIME THAT AN INTERIM PARENTING PLAN IS VACATED REMAINS A JUDGMENT SUBJECT TO COLLECTION.

(3)  If a custody parenting proceeding commenced in the absence of a petition for dissolution of marriage or legal separation is dismissed, any temporary custody order interim parenting plan is vacated. A CHILD SUPPORT DELINQUENCY EXISTING AT THE TIME THAT AN INTERIM PARENTING PLAN IS VACATED REMAINS A JUDGMENT SUBJECT TO COLLECTION.

(4) Adoption of a final parenting plan under [section 19 20] vacates any interim parenting plan adopted under this section. A CHILD SUPPORT DELINQUENCY EXISTING AT THE TIME THAT AN INTERIM PARENTING PLAN IS VACATED REMAINS A JUDGMENT SUBJECT TO COLLECTION."



Section 17.  Section 40-4-214, MCA, is amended to read:

"40-4-214.   Interviews. (1) The court may interview the child in chambers to ascertain the child's wishes as to his custodian residence and as to visitation parental contact. The court may permit counsel to be present at the interview. The court shall cause a record of the interview to be made and to be part of the record in the case.

(2)  The court may seek the advice of professional personnel, whether or not employed by the court on a regular basis. The advice given shall must be in writing and made available by the court to counsel upon request. Counsel may examine as a witness any professional personnel consulted by the court."



Section 18.  Section 40-4-215, MCA, is amended to read:

"40-4-215.   Investigations and reports. (1) In contested custody proceedings and in other custody proceedings if If a parent or the child's custodian a court-appointed third party requests, or if the court finds that a parenting proceeding is contested, the court may order an investigation and report concerning custodial parenting arrangements for the child. The investigator may be the child's guardian ad litem or other professional considered appropriate by the court. The department of public health and human services may not be ordered to conduct the investigation or draft a report unless the parent or the child's custodian person requesting the investigation is a recipient of aid to families with dependent children CASH ASSISTANCE UNDER THE TEMPORARY ASSISTANCE FOR NEEDY FAMILIES BLOCK GRANT, food stamps, or public assistance and all reasonable options for payment of the investigation, if conducted by a person not employed by the department, are exhausted. The department may consult with any investigator and share information relevant to the child's best interests. The cost of the investigation and report must be paid according to the final order. The cost of the educational evaluation under subsection (2)(a) must be paid from the fees for filing petitions for contested amendment of a parenting plan, as provided in 25-1-201(9).

(2) The court shall determine, if appropriate, the level of evaluation necessary for adequate investigation and preparation of the report, which may include one or more of the following:

(a) parenting education;

(b) mediation pursuant to 40-4-303 40-4-301;

(c) factfinding by the investigator; and

(d) psychological evaluation of the parties.

(2)(3)  In preparing a report concerning a child, the investigator may consult any person who may have has information about the child and the child's potential custodial parenting arrangements. Upon order of the court, the investigator may refer the child to professional personnel for diagnosis. The Except as required for children 16 years of age or older, the investigator may consult with and obtain information from medical, psychiatric, or other expert persons who have served the child in the past without obtaining the consent of the parent or the child's custodian persons or entities authorized by law to grant or withhold access to the records. The child's consent must be obtained if the child has reached the age of 16 unless the court finds that the child lacks mental capacity to consent. If the requirements of subsection (3) (4) are fulfilled, the investigator's report may be received in evidence at the hearing.

(3)(4)  The court shall mail the investigator's report to counsel and to any party not represented by counsel at least 10 days prior to the hearing. The When consistent with state and federal law, the investigator shall make available to counsel and to any party not represented by counsel the investigator's file of underlying data and reports, complete texts of diagnostic reports made to the investigator pursuant to the provisions of subsection (2) (3), and the names and addresses of all persons whom the investigator has consulted. Any party to the proceeding may call the investigator and any person the investigator has consulted for cross-examination. A party may not waive the right of cross-examination prior to the hearing. The results of the investigation must be included in the court record and may, without objection, be sealed."



NEW SECTION. Section 19.  Final parenting plan -- purpose and objectives. The objectives of a final parenting plan are to:

(1) protect the best interest of the child of a marriage, consistent with 40-4-212;

(2) provide for the physical care of the child;

(3) maintain the child's emotional stability and minimize the child's exposure to parental conflict;

(4) provide for the child's changing needs as the child grows and matures, in a way that minimizes the need for future amendment to the final parenting plan;

(5) set forth the authority and responsibilities of each parent with respect to the child, consistent with the criteria in [section 19 20]; and

(6) encourage the parents, when appropriate under [section 19 20], to meet their responsibilities to their minor children through agreements in the parenting plan rather than through judicial intervention.



NEW SECTION. Section 20. Final parenting plan criteria.  (1) In every dissolution proceeding, proceeding for declaration of invalidity of marriage, parenting plan proceeding, or legal separation proceeding that involves a child, each parent or both parents jointly shall submit to the court, in good faith, a proposed final plan for parenting the child, which must MAY include the allocation of parenting functions. A final parenting plan must be incorporated into any final decree or amended decree, including cases of dissolution by default. As used in this section, parenting functions means those aspects of the parent-child relationship in which the parent makes decisions and performs functions necessary for the care and growth of the child, including WHICH MAY INCLUDE:

(a) maintaining a loving, stable, consistent, and nurturing relationship with the child;

(b) attending to the daily needs of the child such as feeding, physical care, DEVELOPMENT, and grooming, supervision, SPIRITUAL GROWTH AND DEVELOPMENT, health care, day care, and engaging in other activities that are appropriate to the developmental level of the child and that are within the social and economic circumstances of the particular family;

(c) attending to adequate education for the child, including remedial or other education essential to the best interests INTEREST of the child;

(d) assisting the child in developing and maintaining appropriate interpersonal relationships ENSURING THE INTERACTIONS AND INTERRELATIONSHIP OF THE CHILD WITH THE CHILD'S PARENTS AND SIBLINGS AND WITH ANY OTHER PERSON WHO SIGNIFICANTLY AFFECTS THE CHILD'S BEST INTEREST; and

(e) exercising appropriate judgment regarding the child's welfare, consistent with the child's developmental level and the family's social and economic circumstances.

(2) Based on the best interest of the child, a final parenting plan must MAY include, at a minimum, provisions for:

(a) designation of a parent as custodian of the child, solely for the purposes of all other state and federal statutes that require a designation or determination of custody, but the designation may not affect either parent's rights and responsibilities under the parenting plan;

(b) designation of the legal residence of both parents and the child, except as provided in 40-4-217;

(c) a residential schedule specifying the periods of time during which the child will reside with each parent, including provisions for holidays, birthdays of family members, vacations, and other special occasions;

(d) finances to provide for the child's needs; and

(e) any other factors affecting the physical and emotional health and well-being of the child.;

(3) Based on the best interest of the child, a parenting plan may include:

(a) provisions for (F) periodic review of the parenting plan when requested by either parent or the child or when circumstances arise that are foreseen by the parents as triggering a need for review, such as attainment by the child of a certain age or if a change in the child's residence is necessitated;

(b)(G) sanctions that will apply if a parent fails to follow the terms of the parenting plan, including contempt of court;

(c)(H) allocation of parental decisionmaking authority regarding the child's:

(i) education;

(ii) religious upbringing SPIRITUAL DEVELOPMENT; and

(iii) health care AND PHYSICAL GROWTH;

(d)(I) the method by which future disputes concerning the child will be resolved between the parents, other than court action; and

(e) other provisions applicable to (J) the unique circumstances of the child or the family situation that the parents agree will facilitate a meaningful, ongoing relationship between the child and parents.

(4)(3) The court may in its discretion order the parties to participate in a dispute resolution process to assist in resolving any conflicts between the parties regarding adoption of the parenting plan. The dispute resolution process may include counseling or mediation by a specified person or agency, or court action.

(5)(4) Each parent may make decisions regarding the day-to-day care and control of the child while the child is residing with that parent, and, regardless of the allocation of decisionmaking in the parenting plan, either parent may make emergency decisions affecting the child's safety or health. When mutual decisionmaking is designated in the parenting plan but cannot be achieved regarding a particular issue, the parents shall make a good faith effort to resolve the issue through any dispute resolution process provided for in the final parenting plan.

(6)(5) If a parent fails to comply with a provision of the parenting plan, the other parent's obligations under the parenting plan are not affected.

(7)(6) THE COURT MAY SHALL ORDER THAT THE PARENTING PLAN BE SEALED IF PRIVACY OF THE PLAN IS NECESSARY TO PROTECT THE BEST INTEREST OF THE CHILD EXCEPT FOR ACCESS BY THE PARENTS, GUARDIAN, OR OTHER PERSON HAVING CUSTODY OF THE CHILD.



Section 21.  Section 40-4-216, MCA, is amended to read:

"40-4-216.   Hearings. (1) Custody Parenting plan proceedings shall receive priority in being set for hearing.

(2)  The court may tax as costs the payment of necessary travel and other expenses incurred by any person whose presence at the hearing the court deems considers necessary to determine the best interest of the child.

(3)  The court, without a jury, shall determine questions of law and fact. If it finds that a public hearing may be detrimental to the child's best interest, the court may exclude the public from a custody parenting hearing but may admit any person who has a direct and legitimate interest in the particular case or a legitimate educational or research interest in the work of the court.

(4)  If the court finds it necessary that the record of any interview, report, investigation, or testimony in a custody parenting proceeding be kept secret to protect the child's welfare, the court may make an appropriate order sealing the record."



Section 22.  Section 40-4-217, MCA, is amended to read:

"40-4-217.   Visitation Notice of intent to move. (1) A parent who is not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger seriously the child's physical, mental, moral, or emotional health.

(2)  In a proceeding for dissolution of marriage or legal separation, the court may, upon the petition of a grandparent, grant reasonable visitation rights to the grandparent of the child if the court finds, after a hearing, that the visitation would be in the best interest of the child.

(3)  The court may modify an order granting or denying visitation rights whenever modification would serve the best interest of the child; however, the court may not restrict a parent's visitation rights unless it finds that the visitation would endanger seriously the child's physical, mental, moral, or emotional health or unless the provisions of subsection (6) apply.

(4)  As long as a noncustodial parent who has visitation rights under a decree or a custody agreement remains a resident of this state, a resident custodial parent shall, before changing the child's residence to another state and unless the noncustodial parent has given written consent, give written notice to the noncustodial parent, as provided in subsection (5).

(5)  The A parent who intends to change residence shall, unless precluded under [section 19 20], provide written notice required by subsection (4) to the other parent.

(2) If a parent's change in residence will significantly affect the child's contact with the other parent, as defined in 40-4-219(1)(e), notice must be served personally or given by certified mail not less than 30 days before the proposed change in residence and must include a proposed revised residential schedule. Proof of service must be filed with the court that issued the custody order adopted the parenting plan. The purpose of the notice is to allow the noncustodial parent to seek a modification of the parent's visitation schedule. Failure of the parent who receives notice to respond to the written notice or to seek amendment of the residential schedule pursuant to 40-4-219 within the 30-day period constitutes acceptance of the proposed revised residential schedule.

(6)  (a)  If a noncustodial parent or other person residing in the noncustodial parent's household has been convicted of any of the crimes listed in subsection (6)(c), the custodial parent or any other person who has been granted custody of the child pursuant to court order may file an objection to visitation with the court. The custodial parent or other person having custody shall give notice to the noncustodial parent of the objection as provided by the Montana Rules of Civil Procedure, and the noncustodial parent has 20 days from the notice to respond. If the noncustodial parent fails to respond within 20 days, the visitation rights of the noncustodial parent are suspended until further order of the court. If the noncustodial parent responds and objects, a hearing must be held within 30 days of the response.

(b)  The noncustodial parent has the burden at the hearing to prove that visitation by the noncustodial parent does not seriously endanger the child's physical, mental, moral, or emotional health and that the modification of visitation is not in the best interest of the child.

(c)  This subsection (6) applies to the following crimes:

(i)  deliberate homicide, as described in 45-5-102;

(ii)  mitigated deliberate homicide, as described in 45-5-103;

(iii)  sexual assault, as described in 45-5-502;

(iv)  sexual intercourse without consent, as described in 45-5-503;

(v)  deviate sexual conduct with an animal, as described in 45-2-101 and prohibited under 45-5-505;

(vi) incest, as described in 45-5-507;

(vii) aggravated promotion of prostitution of a child, as described in 45-5-603(1)(b);

(viii) endangering the welfare of children, as described in 45-5-622;

(ix) partner or family member assault of the type described in 45-5-206(1)(a);

(x)  sexual abuse of children, as described in 45-5-625."



Section 23.  Section 40-4-219, MCA, is amended to read:

"40-4-219.   Modification Amendment of parenting plan -- mediation. (1) The court may in its discretion modify amend a prior custody decree parenting plan if it finds, upon the basis of facts that have arisen since the prior decree plan or that were unknown to the court at the time of entry of the prior decree plan, that a change has occurred in the circumstances of the child or the child's custodian and that the modification amendment is necessary to serve the best interest of the child. and if it further finds that In determining the child's best interest under this section, the court may, in addition to the criteria in 40-4-212, also consider whether:

(a)  the custodian agrees parents agree to the modification amendment;

(b)  the child has been integrated into the family of the petitioner with consent of the custodian parents;

(c)  the child's present environment endangers seriously the child's physical, mental, moral, or emotional health and that the harm likely to be caused by a change of environment is outweighed by its advantages to the child;

(d)  the child is 14 years of age or older and desires the modification amendment;

(e)(d)  the custodian one parent has willfully and consistently:

(i)  refuses refused to allow the child to have any contact with the noncustodial other parent; or

(ii)  attempts attempted to frustrate or deny contact with the child by the noncustodial parent's exercise of visitation rights other parent; or

(f)(e)  the custodial parent one parent has changed or intends to change the child's residence to another state in a manner that significantly affects the child's contact with the other parent. A change in residence of more than 30 miles from the child's present residence constitutes a significant effect on parent-child contact.

(2)  A court may modify a de facto custody parenting arrangement in accordance with the factors set forth in 40-4-212.

(3)  The court shall presume the custodian a parent is not acting in the child's best interest if the custodian parent does any of the acts specified in subsection (1)(e) (1)(d) or (8).

(4)  The court may modify amend the prior decree parenting plan based on subsection (1)(f) (1)(e) to provide a new visitation residential schedule for parental contact with the child and to apportion transportation costs between the parents.

(5)  Attorney fees and costs must be assessed against a party seeking modification frivolous or repeated amendment if the court finds that the modification amendment action is vexatious and constitutes harassment.

(6)  A custody decree parenting plan may be modified amended upon the death of the custodial one parent pursuant to 40-4-221.

(7)  As used in this section, "prior custody decree" parenting plan" means a custody parenting determination contained in a judicial decree or order made in a custody parenting proceeding. In proceedings for amendment under this section, a proposed amended parenting plan must be filed and served with the motion for amendment and with the response to the motion for amendment. Preference must be given to carrying out the parenting plan.

(8)  (a)  If a parent or other person residing in that parent's household has been convicted of any of the crimes listed in subsection (8)(c) (8)(b), the other parent or any other person who has been granted custody of rights to the child pursuant to court order may file an objection to the current custody parenting order with the court. The parent or other person having custody rights to the child pursuant to court order shall give notice to the other parent of the objection as provided by the Montana Rules of Civil Procedure, and the other parent has 20 days from the notice to respond. If the other parent who receives notice of objection fails to respond within 20 days, the custody parenting rights of the other that parent are suspended until further order of the court. If the other that parent responds and objects, a hearing must be held within 30 days of the response.

(b)  The other parent has the burden at the hearing to prove that custody by the other parent does not seriously endanger the child's physical, mental, moral, or emotional health and that the modification of custody is not in the best interest of the child.

(c)  This subsection (8) applies to the following crimes:

(i)  deliberate homicide, as described in 45-5-102;

(ii)  mitigated deliberate homicide, as described in 45-5-103;

(iii)  sexual assault, as described in 45-5-502;

(iv)  sexual intercourse without consent, as described in 45-5-503;

(v)  deviate sexual conduct with an animal, as described in 45-2-101 and prohibited under 45-5-505;

(vi) incest, as described in 45-5-507;

(vii) aggravated promotion of prostitution of a child, as described in 45-5-603(1)(b);

(viii) endangering the welfare of children, as described in 45-5-622;

(ix) partner or family member assault of the type described in 45-5-206(1)(a);

(x)  sexual abuse of children, as described in 45-5-625.

(9) Except in cases of physical abuse or threat of physical abuse by one parent against the other parent or the child, or when a parent has been convicted of a crime enumerated in subsection (8)(b), the court may, in its discretion, order the parties to participate in a dispute resolution process to assist in resolving any conflicts between the parties regarding amendment of the parenting plan. The dispute resolution process may include counseling or mediation by a specified person or agency, and court action."



Section 24.  Section 40-4-220, MCA, is amended to read:

"40-4-220.   Affidavit practice. (1) A Unless the parties agree to an interim parenting plan or an amended parenting plan, the moving party seeking a temporary custody order an interim parenting plan or modification amendment of a custody decree final parenting plan shall submit, together with his the moving papers, an affidavit setting forth facts supporting the requested order plan or modification amendment and shall give notice, together with a copy of his the affidavit, to other parties to the proceeding, who may file opposing affidavits. The court shall deny the motion unless it finds that adequate cause for hearing the motion is established by the affidavits, based on the best interests of the child, in which case it shall set a date for hearing on an order to show cause why the requested order plan or modification amendment should not be granted.

(2)  (a) A party seeking a temporary custody order an interim parenting plan may request that the court grant a temporary assignment of custody order providing for living arrangements for the child ex parte. He The party shall so make the request in his the moving papers and shall submit an affidavit showing that:

(i)  no previous determination of custody parenting plan has been made ordered by a court and it would be in the child's best interest under the standards of 40-4-212 if temporary custody were placed with the person designated living arrangements for the child were as proposed by the moving party; or

(ii) although a previous determination of custody parenting plan has been made ordered, an emergency situation has arisen in the child's present environment endangers his physical or emotional health that is detrimental to the child's best interests and an immediate change of custody would serve in the parenting plan is necessary to protect the child's physical or emotional health child.

(b)  If the court finds from the affidavits submitted by the moving party that a temporary assignment of custody the interim parenting plan proposed by the moving party would be in the child's best interest under the standards of 40-4-212 or that the child's physical or emotional health is endangered present environment is detrimental to the child's best interest and would be protected by a temporary assignment of custody the interim parenting plan, the court shall make an order placing temporary custody with the person designated implementing the interim parenting plan proposed by the moving party or with some other person designated by the court and. The court shall require all parties to appear and show cause within 20 days from the execution of the order interim parenting plan why, in the case of a temporary order issued under subsection (2)(a)(i), the temporary order interim parenting plan should not remain in effect until further order of court or, in the case of a temporary order issued under subsection (2)(a)(ii), the court should not restore the child to the custodian from whom the child was removed by the temporary order."



Section 25.  Section 40-4-221, MCA, is amended to read:

"40-4-221.   Determination of custody child's care upon death of custodial parent. (1) Upon the death of a parent granted custody of a child, custody shall pass to the noncustodial parent unless, one or more parties named in subsection (2) may request a custody parenting plan hearing. The noncustodial surviving parent shall must be a party in any proceeding brought under this section.

(2)  Upon the death of a parent granted custody of a child, any of the following parties may request a custody parenting plan hearing and seek custody of the child:

(a)  the noncustodial natural parent;

(b)  the surviving spouse of the deceased custodial parent;

(c)  a person nominated by the will of the deceased custodial parent;

(d)  any person nominated by the child if the child is at least 12 years old;

(e)  any other person if that person has actual physical control over the child;

(f)  any other party whom, upon showing of good cause, the court permits to intervene as an interested party.

(3)  The hearing and determination of custody shall be a parenting plan is governed by this part."



Section 26.  Section 40-4-225, MCA, is amended to read:

"40-4-225.   Access to records by noncustodial parent. Notwithstanding any other provision of law, access to records and information pertaining to a minor child, including but not limited to medical, dental, law enforcement, and school records, may not be denied to a parent because such parent is not the child's custodial parent who is a party to a parenting plan."



Section 27.  Section 40-4-226, MCA, is amended to read:

"40-4-226.  Court-ordered COURT-SANCTIONED educational program on effects of dissolution of marriage on children. (1) In a proceeding for dissolution of marriage involving a minor child or in a custody modification parenting plan proceeding involving a minor child, a court shall inform the parties, excluding the minor child, of available educational programs concerning the effects of dissolution of marriage on children and, if the court finds that it would be in the best interest of the minor child, may shall order the parties to attend a court-sponsored COURT-SANCTIONED program. The program may be divided into sessions. The program must be educational in nature and may not be designed for individual therapy.

(2)  Any facts presented at an educational session resulting from a referral under this section may not be considered in a dissolution of a marriage or a custody modification proceeding, nor may a report resulting from an educational session become part of the record of the dissolution or proceeding unless the parties have stipulated in writing to the contrary.

(3)  The fees or costs of an educational session under this section must be borne by the parties and may be assessed by the court in an equitable manner. The cost of implementing the court-sponsored COURT-SANCTIONED educational program for each district court, provided for in subsection (1), must be paid from the fees for filing petitions for contested amendment of a parenting plan, provided for in 25-1-201(9). COSTS MAY INCLUDE PARENTING EVALUATION AND GUARDIAN AD LITEM SERVICES."



Section 28.  Section 40-4-302, MCA, is amended to read:

"40-4-302.   Mediation proceeding -- tolling of statute of limitations. (1) The purpose of a mediation proceeding is to reduce the acrimony that may exist between the parties and to develop an agreement that is supportive of the best interests of a child involved in the proceeding.

(2)  The mediator shall attempt to effect a settlement of the child custody parenting, child support, visitation parental contact with the child, maintenance, or property settlement dispute. The mediator may not use coercive measures to effect the settlement. The mediator may recommend that a party obtain assistance from other resources in the community.

(3)  Subject to 40-4-301(1), the mediator may exclude attorneys from the mediation sessions. The parties' attorneys may confer with the mediator prior to the mediation session and may review and approve any agreement.

(4)  An applicable statute of limitations is tolled as to the participants during the period of mediation. The tolling commences on the date the parties agree in writing to participate in the mediation or when the court orders mediation, whichever is later, and ends on the date the mediation is officially terminated by the mediator."



Section 29.  Section 40-4-307, MCA, is amended to read:

"40-4-307.   Mediator qualifications. A mediator shall must meet the following minimum qualifications:

(1)  knowledge of the court system and the procedures used in family law matters;

(2)  knowledge of other resources in the community to which the parties may be referred for assistance;

(3)  if applicable, knowledge of child development, clinical issues relating to children, the effects of marriage dissolution on children, and child custody parenting research; and

(4)  knowledge of the mediation process."



Section 30.  Section 40-6-211, MCA, is amended to read:

"40-6-211.   Obligations of parents for the support and education of their children. The parent or parents entitled to the custody of a child must shall give him the child support and education suitable to his the child's circumstances."



Section 31.  Section 40-6-221, MCA, is amended to read:

"40-6-221.   Custody Parenting, services, and earnings of child. The father and mother of an unmarried minor child are equally entitled to the custody parenting, services, and earnings of the child. If either parent be is dead or unable or refuses to take the custody exercise parenting or has abandoned his or her the family, the other parent is entitled to the custody parenting, services, and earnings of the child, unless custody care of the child is determined otherwise pursuant to 40-4-221."



Section 32.  Section 40-9-101, MCA, is amended to read:

"40-9-101.   Application of Montana Rules of Civil Procedure. (1) Except as otherwise provided, the Montana Rules of Civil Procedure apply to all proceedings under this section and 40-9-102.

(2)  A proceeding for grandparent grandparent-grandchild contact visitation under this section and 40-9-102 shall must be entitled, "In re the visitation grandparent-grandchild contact of ......"

(3)  The initial pleading in all proceedings under this section and 40-9-102 shall must be denominated a petition. A responsive pleading shall must be denominated a response. Other pleadings shall must be denominated as provided in the Montana Rules of Civil Procedure."



Section 33.  Section 40-9-102, MCA, is amended to read:

"40-9-102.   Grandparent Grandparent-grandchild contact visitation rights. (1) Except as provided in subsection (5), the district court may grant to a grandparent of a child reasonable visitation rights to contact with the child, including but not limited to visitation rights regarding a child who is the subject of, or as to whom a disposition has been made during, an administrative or court proceeding under Title 41 or this title. The department of public health and human services must be given notice of a petition for grandparent grandparent-grandchild contact visitation regarding a child who is the subject of, or as to whom a disposition has been made during, an administrative or court proceeding under Title 41 or this title.

(2)  Visitation rights Grandparent-grandchild contact granted under this section may be granted only upon a finding by the court, after a hearing, that the visitation contact would be in the best interest of the child.

(3)  A person may not petition the court under this section more often than once every 2 years unless there has been a significant change in the circumstances of:

(a) the child;

(b)  the child's parent, guardian, or custodian; or

(c)  the child's grandparent.

(4)  The court may appoint an attorney to represent the interests of a child with respect to visitation grandparent-grandchild contact when the interests are not adequately represented by the parties to the proceeding.

(5)  This section does not apply if the child has been adopted by a person other than a stepparent or a grandparent. Visitation rights Grandparent-grandchild contact granted under this section terminate terminates upon the adoption of the child by a person other than a stepparent or a grandparent."



Section 34.  Section 45-5-304, MCA, is amended to read:

"45-5-304.   Custodial interference. (1) A person commits the offense of custodial interference if, knowing that the person has no legal right to do so, the person:

(a)  takes, entices, or withholds from lawful custody any child, incompetent person, or other person entrusted by authority of law to the custody of another person or institution;

(b)  prior to the entry of a court order determining custodial rights, takes, entices, or withholds any child from the other parent when the action manifests a purpose to substantially deprive that parent of parental rights; or

(c)  is one of two persons who has joint custody of a child under a court order and takes, entices, or withholds the child from the other when the action manifests a purpose to substantially deprive the other parent of parental rights.

(2)  A person convicted of the offense of custodial interference shall be imprisoned in the state prison for any term not to exceed 10 years or be fined an amount not to exceed $50,000, or both.

(3)  With respect to the first alleged commission of the offense only, a person who has not left the state does not commit an offense under this section if the person voluntarily returns the child, incompetent person, or other person to lawful custody prior to before arraignment. With respect to the first alleged commission of the offense only, a person who has left the state does not commit an offense under this section if the person voluntarily returns the child, incompetent person, or other person to lawful custody prior to before arrest."



NEW SECTION. Section 35.  Parenting interference. (1) A person commits the offense of parenting interference if, knowing that the person has no legal right to do so, the person:

(a)  before the entry of a court order determining parenting rights, takes, entices, or withholds a child from the other parent when the action manifests a purpose to substantially deprive that parent of parenting rights; or

(b)  is one of two persons who has parenting authority of a child under a court order and takes, entices, or withholds the child from the other when the action manifests a purpose to substantially deprive the other parent of parenting rights.

(2)  A person convicted of the offense of parenting interference shall be imprisoned in the state prison for any term not to exceed 10 years or be fined an amount not to exceed $50,000, or both.

(3)  With respect to the first alleged commission of the offense only, a person who has not left the state does not commit an offense under this section if the person voluntarily returns the child before arraignment. With respect to the first alleged commission of the offense only, a person who has left the state does not commit an offense under this section if the person voluntarily returns the child before arrest.



Section 36.  Section 45-5-631, MCA, is amended to read:

"45-5-631.   Visitation interference Interference with parent-child contact. (1) A person who has legal custody of a minor child been granted parent-child contact under a parenting plan commits the offense of visitation interference with parent-child contact if he the person knowingly or purposely prevents, obstructs, or frustrates the visitation rights of a another person entitled to visitation parent-child contact under an existing court order.

(2)  A person convicted of the offense of visitation interference with parent-child contact shall be fined an amount not to exceed $500 or be imprisoned in the county jail for a term not to exceed 5 days, or both."



Section 37.  Section 45-5-632, MCA, is amended to read:

"45-5-632.   Aggravated visitation interference with parent-child contact. (1) A person who commits the offense of visitation interference with parent-child contact by changing the residence of the minor child over whom he has legal custody to another state without giving written notice as required in 40-4-217, unless the notice requirement has been precluded under [section 19 20], or without written consent of the person entitled to visitation parent-child contact pursuant to an existing court order commits the offense of aggravated visitation interference with parent-child contact.

(2)  A person convicted of the offense of aggravated visitation interference with parent-child contact shall be fined an amount not to exceed $1,000 or be imprisoned in the state prison for a term not to exceed 18 months, or both."



Section 38.  Section 45-5-633, MCA, is amended to read:

"45-5-633.   Defenses to visitation interference with parent-child contact and aggravated visitation interference with parent-child contact. (1) A person does not commit the offense of visitation interference with parent-child contact or aggravated visitation interference with parent-child contact if he the person acts:

(a)  with the consent of the person entitled to visitation parent-child contact;

(b)  under an existing court order; or

(c)  with reasonable cause.

(2)  Return of the child prior to before arrest is a defense only with respect to the first commission of visitation interference with parent-child contact or aggravated visitation interference with parent-child contact."



NEW SECTION. Section 39.  Repealer. Sections 40-4-222, 40-4-223, 40-4-224, 40-6-222, 40-6-223, 40-6-224, and 40-6-231, MCA, are repealed.



NEW SECTION. Section 40.  Codification instruction. (1) [Sections 18 and 19 AND 20] are intended to be codified as an integral part of Title 40, chapter 4, part 2, and the provisions of Title 40, chapter 4, part 2, apply to [sections 18 and 19 AND 20].

(2) [Section 34 35] is intended to be codified as an integral part of Title 45, chapter 5, part 6, and the provisions of Title 45, chapter 5, part 6, apply to [section 34 35].



NEW SECTION. Section 41.  Saving clause. [This act] does not affect rights and duties that matured, penalties that were incurred, or proceedings that were begun before October 1, 1997.



NEW SECTION. Section 42.  Severability. If a part of [this act] is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of [this act] is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications.



NEW SECTION. Section 43.  Applicability. [This act] applies to proceedings begun after October 1, 1997, INCLUDING PROCEEDINGS REGARDING MODIFICATION OF ORDERS OR DECREES EXISTING ON OCTOBER 1, 1997.

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