HOUSE BILL NO. 24
INTRODUCED BY L. SOFT
BY REQUEST OF THE JOINT OVERSIGHT COMMITTEE ON CHILDREN AND FAMILIES
AN ACT REPLACING THE UNIFORM CHILD CUSTODY JURISDICTION ACT WITH THE UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT; AMENDING SECTIONS 40-1-105, 40-4-103, 40-7-101, 40-7-103, 40-7-105, 40-7-106, 40-7-107, 40-7-108, 40-7-109, 40-7-110, 40-7-112, 40-7-119, AND 40-7-125, MCA; AND REPEALING SECTIONS 40-7-102, 40-7-104, 40-7-111, 40-7-113, 40-7-114, 40-7-115, 40-7-116, 40-7-117, 40-7-118, 40-7-120, 40-7-121, 40-7-122, 40-7-123, AND 40-7-124, MCA.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Section 40-1-105, MCA, is amended to read:
"40-1-105. Application of the Montana Rules of Civil Procedure. (1) Except for proceedings under the Uniform
Child Custody Jurisdiction and Enforcement 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 must be entitled, "In re the Marriage of.......... and............". A parenting or support proceeding must be entitled, "In re the (parenting) (support) of........".
(3) The initial pleading in all proceedings under this chapter must be denominated a petition. A responsive pleading must be denominated a response. Other pleadings, and all pleadings in other matters under this chapter, must be denominated as provided in the Montana Rules of Civil Procedure.
(4) In this chapter, "decree" includes "judgment"."
Section 2. 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 and Enforcement 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 must be entitled, "In re the Marriage of.......... and............". A parenting or support proceeding must be entitled, "In re the (parenting) (support) of........".
(3) The initial pleading in all proceedings under this chapter must be denominated a petition. A responsive pleading must be denominated a response. Other pleadings, and all pleadings in other matters under this chapter, 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, may not be awarded to one of the parties but must provide that it affects the status previously existing between the parties in the manner decreed."
Section 3. Section 40-7-101, MCA, is amended to read:
"40-7-101. Short title. This chapter may be cited as the "Uniform Child Custody Jurisdiction and Enforcement Act"."
Section 4. Section 40-7-103, MCA, is amended to read:
"40-7-103. Definitions. As used in this chapter, the following definitions apply:
(1) "Contestant" means a person, including a parent, who claims a right to custody or visitation rights with respect to a
child.
(2) "Custody determination" means a court decision and court orders and instructions providing for the custody of a
child, including visitation rights. It does not include a decision relating to child support or any other monetary obligation of
any person.
(3) "Custody proceeding" includes proceedings in which a custody determination is one of several issues, such as an
action for divorce or separation, and includes issues of custody in adoption proceedings. A "custody proceeding" is not a
proceeding pursuant to Title 41, chapter 3 or 5.
(4) "Decree" or "custody decree" means a custody determination contained in a judicial decree or order made in a
custody proceeding and includes an initial decree and a modification decree.
(1) "Abandoned" means left without provision for reasonable and necessary care or supervision.
(2) "Child" means an individual who has not attained 18 years of age.
(3) (a) "Child custody determination" means a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child. The term includes a permanent, a temporary, an initial, and a modification order.
(b) The term does not include an order relating to child support or other monetary obligation of an individual.
(4) (a) "Child custody proceeding" means a proceeding in which legal custody, physical custody, or visitation with respect to a child is an issue. The term includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence, in which the issue may appear.
(b) The term does not include a proceeding involving juvenile delinquency, contractual emancipation, or enforcement under [sections 25 through 41].
(5) "Commencement" means the filing of the first pleading in a proceeding.
(6) "Court" means an entity authorized under the law of a state to establish, enforce, or modify a child custody determination.
(5)(7) "Home state" means the state in which the a child, immediately preceding the time involved, lived with his
parents, a parent, or a person acting as parent, for at least 6 consecutive months immediately before the commencement of a
child custody proceeding. and in In the case of a child less than 6 months old of age, the term means the state in which the
child lived from birth with any of the persons mentioned. Periods A period of temporary absence of any of the named
mentioned persons are counted as is part of the 6-month or other period.
(6)(8) "Initial decree" "Initial determination" means the first custody decree child custody determination concerning a
particular child.
(9) "Issuing court" means the court that makes a child custody determination for which enforcement is sought under this chapter.
(10) "Issuing state" means the state in which a child custody determination is made.
(7)(11) "Modification decree" means a custody decree which modifies or child custody determination that changes,
replaces, supersedes, or is otherwise made after a previous determination concerning the same child, a prior decree, whether
or not it is made by the court which rendered the prior decree or by another court that made the previous determination.
(12) "Person" includes a government, a governmental subdivision, an agency, an instrumentality, or any other legal or commercial entity.
(13) "Person acting as a parent" means a person, other than a parent, who:
(a) has physical custody of the child or has had physical custody for a period of 6 consecutive months, including any temporary absence, within 1 year immediately before the commencement of a child custody proceeding; and
(b) has been awarded legal custody by a court or claims a right to legal custody under the law of this state.
(8)(14) "Physical custody" means actual possession and control the physical care and supervision of a child.
(9) "Person acting as parent" means a person other than a parent who has physical custody of a child and who has either
been awarded custody by a court or claims a right to custody.
(10)(15) "State" means any a state of the United States, territory, or possession of the United States, the Commonwealth
of Puerto Rico, and the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular
possession subject to the jurisdiction of the United States.
(16) "Tribe" means an Indian tribe or band or Alaskan Native village that is recognized by federal law or formally acknowledged by a state.
(17) "Warrant" means an order issued by a court authorizing law enforcement officers to take physical custody of a child."
Section 5. Section 40-7-105, MCA, is amended to read:
"40-7-105. Notice and -- opportunity to be heard -- joinder. (1) Before making a decree a child custody
determination is made under this chapter, reasonable notice and opportunity to be heard shall in accordance with the
standards of 40-7-106 must be given to the contestants all persons entitled to notice under the law of this state as in child
custody proceedings between residents of this state, any parent whose parental rights have not been previously terminated,
and any person who has physical custody of the child. If any of these persons are outside this state, notice and opportunity to
be heard shall be given pursuant to 40-7-106.
(2) This chapter does not govern the enforceability of a child custody determination made without notice or an opportunity to be heard.
(3) The obligation to join a party and the right to intervene as a party in a child custody proceeding under this chapter are governed by the law of this state as in child custody proceedings between residents of this state."
Section 6. Section 40-7-106, MCA, is amended to read:
"40-7-106. Notice to persons outside this state -- submission to jurisdiction. (1) Notice required for the exercise of
jurisdiction over when a person is outside this state shall may be given in a manner reasonably calculated to give actual
notice and may be:
(a) by personal delivery outside this state in the manner prescribed for service of process within this state;
(b) in the manner prescribed by the law of this state for the service of process or by the law of the place state in which
the service is made. for service of process in that place in an action in any of its courts of general jurisdiction;
(c) by any form of mail addressed to the person to be served and requesting a receipt; or
(d) as directed by the court, including Notice must be given in a manner reasonably calculated to give actual notice but
may be by publication, if other means of notification are ineffective.
(2) Notice under this section shall be served, mailed, or delivered or last published at least 10 days before any hearing in
this state.
(3) Proof of service outside this state may be made by affidavit of the individual who made the service or in the manner
prescribed by the law of this state, the order pursuant to which the service is made, or by the law of the place state in which
the service is made. If service is made by mail, proof may be a receipt signed by the addressee or other evidence of delivery
to the addressee.
(4)(3) Notice is not required if for the exercise of jurisdiction with respect to a person who submits to the jurisdiction of
the court."
Section 7. Section 40-7-107, MCA, is amended to read:
"40-7-107. Simultaneous proceedings in other states. (1) A Except as otherwise provided in [section 24], a court of
this state may not exercise its jurisdiction under this chapter 40-7-105, 40-7-107 through 40-7-110, 40-7-112, and [sections
21 through 23] if at the time of filing the petition commencement of the proceeding a proceeding concerning the custody of
the child was pending had been previously commenced in a court of another state exercising having jurisdiction
substantially in conformity with this chapter unless the proceeding has been terminated or is stayed by the court of the other
state because a court of this state is a more appropriate convenient forum or for other reasons under 40-7-108.
(2) Before Except as otherwise provided in [section 24], a court of this state, before hearing the petition in a custody a
child custody proceeding, the court shall examine the pleadings court documents and other information supplied by the
parties under 40-7-110 and shall consult the child custody registry established under 40-7-117 concerning the pendency of
proceedings with respect to the child in other states pursuant to 40-7-110. If the court has reason to believe that proceedings
may be pending determines that a child custody proceeding was previously commenced in a court in another state having
jurisdiction substantially in accordance with this chapter, it the court of this state shall direct an inquiry to the state court
administrator or other appropriate official of the other state.
(3) If the court is informed during the course of the proceeding that a proceeding concerning the custody of the child
was pending in another state before the court assumed jurisdiction, it shall stay the its proceeding and communicate with the
court in which the other proceeding is pending to the end that the issue may be litigated in the more appropriate forum and
that information be exchanged in accordance with 40-7-120 through 40-7-123. If a court of this state has made a custody
decree before being informed of a pending proceeding in a court of another state, it shall immediately inform that court of
the fact. If the court is informed that a proceeding was commenced in another state after it assumed jurisdiction, it shall
likewise inform the other court to the end that the issues may be litigated in the of the other state. If the court of the state
having jurisdiction substantially in accordance with this chapter does not determine that the court of this state is a more
appropriate forum, the court of this state shall dismiss the proceeding.
(3) In a proceeding to modify a child custody determination, a court of this state shall determine whether a proceeding to enforce the determination has been commenced in another state. If a proceeding to enforce a child custody determination has been commenced in another state, the court may:
(a) stay the proceeding for modification pending the entry of an order of a court of the other state enforcing, staying, denying, or dismissing the proceeding for enforcement;
(b) enjoin the parties from continuing with the proceeding for enforcement; or
(c) proceed with the modification under conditions that it considers appropriate."
Section 8. Section 40-7-108, MCA, is amended to read:
"40-7-108. Inconvenient forum. (1) A court which of this state that has jurisdiction under this chapter to make an
initial or modification decree a child custody determination may decline to exercise its jurisdiction at any time before
making a decree if it finds determines that it is an inconvenient forum to make a custody determination under the
circumstances of the case and that a court of another state is a more appropriate forum. The issue
(2) A finding of inconvenient forum may be made raised upon the court's own motion, request of another court, or upon
motion of a party or a guardian ad litem or other representative of the child.
(3)(2) In Before determining if whether it is an inconvenient forum, the a court of this state shall consider if whether it is
in the interest of the child appropriate that a court of another state assume exercise jurisdiction. For this purpose, it may take
into account the following the court shall allow the parties to submit information and shall consider all relevant factors,
among others including:
(a) if another state is or recently was the child's home state;
(b) if another state has a closer connection with the child and his family or with the child and one or more of the
contestants;
(c) if substantial evidence concerning the child's present or future care, protection, training, and personal relationships is
more readily available in another state;
(d) if the parties have agreed on another forum which is no less appropriate; and
(e) if the exercise of jurisdiction by a court of this state would contravene any of the purposes stated in 40-7-102.
(a) whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
(b) the length of time that the child has resided outside this state;
(c) the distance between the court in this state and the court in the state that would assume jurisdiction;
(d) the relative financial circumstances of the parties;
(e) any agreement of the parties as to which state should assume jurisdiction;
(f) the nature and location of the evidence required to resolve the pending litigation, including testimony of the child;
(g) the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
(h) the familiarity of the court of each state with the facts and issues in the pending litigation.
(4) Before determining whether to decline or retain jurisdiction, the court may communicate with a court of another
state and exchange information pertinent to the assumption of jurisdiction by either court with a view to assuring that
jurisdiction will be exercised by the more appropriate court and that a forum will be available to the parties.
(5)(3) If the a court finds of this state determines that it is an inconvenient forum and that a court of another state is a
more appropriate forum, it may dismiss the proceedings or it may shall stay the proceedings upon condition that a custody
child custody proceeding be promptly commenced in another named designated state or upon and may impose any other
conditions which may be condition that the court considers just and proper, including the condition that a moving party
stipulate his consent and submission to the jurisdiction of the other forum.
(6)(4) The A court of this state may decline to exercise its jurisdiction under this chapter if a custody child custody
determination is incidental to an action for divorce or another proceeding while still retaining jurisdiction over the divorce
or other proceeding.
(7) If it appears to the court that it is clearly an inappropriate forum, it may require the party who commenced the
proceedings to pay, in addition to the costs of the proceedings in this state, necessary travel and other expenses, including
attorneys' fees, incurred by other parties or their witnesses. Payment is to be made to the clerk of the court for remittance to
the proper party.
(8) Upon dismissal or stay of proceedings under this section the court shall inform the court found to be the more
appropriate forum of this fact or, if the court which would have jurisdiction in the other state is not certainly known,
transmit the information to the court administrator or other appropriate official for forwarding to the appropriate court.
(9) Any communication received from another state informing this state of a finding of inconvenient forum because a
court of this state is the more appropriate forum shall be filed in the custody registry of the appropriate court. Upon
assuming jurisdiction, the court of this state shall inform the original court of this fact."
Section 9. Section 40-7-109, MCA, is amended to read:
"40-7-109. Jurisdiction declined by reason of conduct. (1) If the petitioner for an initial decree has wrongfully taken
the child from another state or Except as otherwise provided in [section 22], if a court of this state has jurisdiction under
this chapter because a person invoking the jurisdiction has engaged in similar reprehensible unjustifiable conduct, the court
may shall decline to exercise jurisdiction if this is just and proper under the circumstances unless:
(a) the parents and all persons acting as parents have acquiesced in the exercise of jurisdiction;
(b) a court of the state otherwise having jurisdiction under [sections 19 through 21] determines that this state is a more appropriate forum under 40-7-108; or
(c) no other state would have jurisdiction under [sections 21 through 23].
(2) Unless required in the interest of the child, the court may not exercise its jurisdiction to modify a custody decree of
another state if the petitioner, without consent of the person entitled to custody, has improperly removed the child from the
physical custody of the person entitled to custody or has improperly retained the child after a visit or other temporary
relinquishment of physical custody. If the petitioner has violated any other provision of a custody decree of another state,
the court may decline to exercise its jurisdiction if this is just and proper under the circumstances.
(2) If a court of this state declines to exercise its jurisdiction pursuant to subsection (1), it may fashion an appropriate remedy to ensure the safety of the child and prevent a repetition of the wrongful conduct, including staying the proceeding until a child custody proceeding is commenced in a court having jurisdiction under [sections 21 through 23].
(3) In appropriate cases If a court dismissing a petition under this section may dismisses a petition or stays a proceeding
because it declines to exercise its jurisdiction pursuant to subsection (1), it shall charge the petitioner party invoking the
jurisdiction of the court with necessary travel and other reasonable expenses, including attorneys' fees, incurred by other
parties or their costs, communication expenses, attorney fees, investigative fees, expenses for witnesses, travel expenses,
and child care during the course of the proceedings, unless the party from whom fees are sought establishes that the award
would be clearly inappropriate. The court may not assess fees, costs, or expenses against this state except as otherwise
provided by law other than this chapter."
Section 10. Section 40-7-110, MCA, is amended to read:
"40-7-110. Information under oath to be submitted to the court. (1) Each In a child custody proceeding, each party,
in a custody proceeding in his its first pleading or in an attached affidavit, attached to that pleading shall give information, if
reasonably ascertainable, under oath as to the child's present address, the places where the child has lived within during the
last 5 years, and the names and present addresses of the persons with whom the child has lived during that period. In this
The pleading or affidavit each party shall further declare under oath must state whether the party:
(a) he has participated, (as a party, or witness, or in any other capacity), in any other litigation proceeding concerning the
custody of or visitation with the same child in this or any other state and, if so, identify the court, the case number of the
proceeding, and the date of the child custody determination, if any;
(b) he has information knows of any custody proceeding concerning the child pending in a court of this or any other
state that could affect the current proceeding, including proceedings for enforcement and proceedings relating to domestic
violence, protective orders, termination of parental rights, and adoptions, and, if so, identify the court, the case number, and
the nature of the proceeding; and
(c) he knows the name and address of any person who is not a party to the proceedings proceeding who has physical
custody of the child or who claims to have rights of legal custody or physical custody of, or visitation rights with respect to,
the child and, if so, the party shall provide the names and addresses of those persons.
(2) If the information required by subsection (1) is not furnished, the court, upon motion of a party or its own motion, may stay the proceeding until the information is furnished.
(2)(3) If the declaration as to any of the above items described in subsections (1)(a) through (1)(c) is in the affirmative,
the declarant shall give additional information under oath as required by the court. The court may examine the parties under
oath as to details of the information furnished and as to other matters pertinent to the court's jurisdiction and the disposition
of the case.
(3)(4) Each party has a continuing duty to inform the court of any custody proceeding concerning the child in this or any
other state of which he obtained information during this that could affect the current proceeding."
Section 11. Section 40-7-112, MCA, is amended to read:
"40-7-112. Appearance of parties and child. (1) The A court of this state may order any a party to the a child custody
proceeding who is in this state to appear personally before the court personally with or without the child. If that party The
court may order any person who is in this state and who has physical custody or control of the child, the court may order
that he to appear personally physically with the child.
(2) If a party to the a child custody proceeding whose presence is desired by the court is outside this state with or
without the child, the court may order that the a notice given under pursuant to 40-7-106 include a statement directing that
the party to appear personally with or without the child and declaring that failure to appear may result in a decision adverse
to that the party.
(3) The court may enter any orders necessary to ensure the safety of the child and of any person ordered to appear under this section.
(3)(4) If a party to the a child custody proceeding who is outside this state is directed to appear under subsection (2) or
desires to appear personally before the court with or without the child, the court may require another party to pay to the
clerk of the court travel reasonable and other necessary travel and other expenses of the party so appearing and of the child,
if this is just and proper under the circumstances."
Section 12. Section 40-7-119, MCA, is amended to read:
"40-7-119. Taking testimony in another state. (1) In addition to other procedural devices procedures available to a
party, any a party to the a child custody proceeding or a guardian ad litem or other representative of the child may adduce
offer testimony of witnesses who are located in another state, including testimony of the parties and the child, by deposition
or otherwise, other means allowable in this state for testimony taken in another state. The court on its own motion may
direct order that the testimony of a person be taken in another state and may prescribe the manner in which and the terms
upon which the testimony shall be is taken.
(2) A court of this state may permit an individual residing in another state to be deposed or to testify by telephone, audiovisual means, or other electronic means before a designated court or at another location in that state. A court of this state shall cooperate with courts of other states in designating an appropriate location for the deposition or testimony.
(3) Documentary evidence that is transmitted from another state to a court of this state by technological means that do not produce an original writing may not be excluded from evidence on an objection based on the means of transmission."
Section 13. Section 40-7-125, MCA, is amended to read:
"40-7-125. Priority. A custody proceeding which raises If a question of existence or exercise of jurisdiction under this
chapter shall is raised in a child custody proceeding, the question, upon request of a party, must be given calendar priority
on the calendar and handled expeditiously."
Section 14. Proceedings governed by other law. This chapter does not govern an adoption proceeding or a proceeding pertaining to the authorization of emergency medical care for a child.
Section 15. Application to Indian tribes. (1) A child custody proceeding that pertains to an Indian child as defined in the Indian Child Welfare Act, 25 U.S.C. 1901, et seq., is not subject to this chapter to the extent that it is governed by the Indian Child Welfare Act.
(2) A court of this state shall treat a tribe as if it were a state of the United States for the purpose of applying 40-7-101, 40-7-103, 40-7-105 through 40-7-110, 40-7-112, 40-7-119, 40-7-125, and [sections 14 through 24].
(3) A child custody determination made by a tribe under factual circumstances in substantial conformity with the jurisdictional standards of this chapter must be recognized and enforced under [sections 25 through 41].
Section 16. International application. (1) A court of this state shall treat a foreign country as if it were a state of the United States for the purpose of applying 40-7-101, 40-7-103, 40-7-105 through 40-7-110, 40-7-112, 40-7-119, 40-7-125, and [sections 14 through 24].
(2) A child custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of this chapter must be recognized and enforced under [sections 25 through 41].
(3) A court of this state need not apply this chapter if the child custody law of a foreign country violates fundamental principles of human rights.
Section 17. Binding force of child custody determination. A child custody determination made by a court of this state that had jurisdiction under this chapter binds all persons who have been served in accordance with the laws of this state or notified in accordance with 40-7-106 or who have submitted to the jurisdiction of the court, and who have been given an opportunity to be heard. As to those persons, the determination is conclusive as to all decided issues of law and fact except to the extent that the determination is modified.
Section 18. Appearance and limited immunity. (1) A party to a child custody proceeding who is not subject to personal jurisdiction in this state and who is a responding party under 40-7-105, 40-7-107 through 40-7-110, 40-7-112, and [sections 21 through 24], a party in a proceeding to modify a child custody determination under 40-7-105, 40-7-107 through 40-7-110, 40-7-112, and [sections 21 through 24], or a petitioner in a proceeding to enforce or register a child custody determination under [sections 25 through 41] may appear and participate in the proceeding without submitting to personal jurisdiction over the party for another proceeding or purpose.
(2) A party is not subject to personal jurisdiction in this state solely by being physically present for the purpose of participating in a proceeding under this chapter. If a party is subject to personal jurisdiction in this state on a basis other than physical presence, the party may be served with process in this state. If a party present in this state is subject to the jurisdiction of another state, service of process allowable under the laws of that state may be accomplished in this state.
(3) The immunity granted by this section does not extend to civil litigation based on acts unrelated to the participation in a proceeding under this chapter committed by an individual while present in this state.
Section 19. Communication between courts. (1) A court of this state may communicate with a court in another state concerning a proceeding arising under this chapter.
(2) The court may allow the parties to participate in the communication. If the parties are not able to participate in the communication, they must be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made.
(3) Communication between courts on schedules, calendars, court records, and similar matters may occur without informing the parties. A record need not be made of the communication.
(4) Except as otherwise provided in subsection (3), a record must be made of a communication under this section. The parties must be informed promptly of the communication and granted access to the record.
(5) For the purposes of this section, "record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form. A record includes notes or transcripts of a court reporter who listened to a conference call between the courts, an electronic recording of a telephone call, a memorandum or an electronic record of the communication between the courts, or a memorandum or an electronic record made by a court after the communication.
Section 20. Cooperation between courts -- preservation of records. (1) A court of this state may request the appropriate court of another state to:
(a) hold an evidentiary hearing;
(b) order a person to produce or give evidence pursuant to procedures of that state;
(c) order that an evaluation be made with respect to the custody of a child involved in a pending proceeding;
(d) forward to the court of this state a certified copy of the transcript of the record of the hearing, the evidence otherwise presented, and any evaluation prepared in compliance with the request; and
(e) order a party to a child custody proceeding or any person having physical custody of the child to appear in the proceeding with or without the child.
(2) Upon request of a court of another state, a court of this state may hold a hearing or enter an order described in subsection (1).
(3) Travel and other necessary and reasonable expenses incurred under subsections (1) and (2) may be assessed against the parties according to the law of this state.
(4) A court of this state shall preserve the pleadings, orders, decrees, records of hearings, evaluations, and other pertinent records with respect to a child custody proceeding until the child attains 18 years of age. Upon appropriate request by a court or law enforcement official of another state, the court shall forward a certified copy of those records.
Section 21. Initial child custody jurisdiction. (1) Except as otherwise provided in [section 24], a court of this state has jurisdiction to make an initial child custody determination only if:
(a) this state is the home state of the child on the date of the commencement of the proceeding or was the home state of the child within 6 months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
(b) a court of another state does not have jurisdiction under subsection (1)(a), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under 40-7-108 or 40-7-109, and:
(i) the child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
(ii) substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships;
(c) all courts having jurisdiction under subsection (1)(a) or (1)(b) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under 40-7-108 or 40-7-109; or
(d) no state would have jurisdiction under subsection (1)(a), (1)(b), or (1)(c).
(2) Subsection (1) is the exclusive jurisdictional basis for making a child custody determination by a court of this state.
(3) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.
Section 22. Exclusive, continuing jurisdiction. (1) Except as otherwise provided in [section 24], a court of this state that has made a child custody determination consistent with [section 21 or 23] has exclusive, continuing jurisdiction over the determination until:
(a) a court of this state determines that neither the child, the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships; or
(b) a court of this state or a court of another state determines that neither the child, a parent, nor any person acting as a parent presently resides in this state.
(2) A court of this state that has exclusive, continuing jurisdiction under this section may decline to exercise jurisdiction if the court determines that it is an inconvenient forum under 40-7-108.
(3) A court of this state that has made a child custody determination and does not have exclusive, continuing jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under [section 21].
Section 23. Jurisdiction to modify determination. Except as otherwise provided in [section 24], a court of this state may not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under [section 21(1)(a) or (1)(b)] and:
(1) the court of the other state determines it no longer has exclusive, continuing jurisdiction under [section 22] or that a court of this state would be a more convenient forum under 40-7-108; or
(2) a court of this state or a court of the other state determines that the child, the child's parents, and any person acting as a parent do not presently reside in the other state.
Section 24. Temporary emergency jurisdiction. (1) A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.
(2) If there is no previous child custody determination that is entitled to be enforced under this chapter and a child custody proceeding has not been commenced in a court of a state having jurisdiction under [sections 21 through 23], a child custody determination made under this section remains in effect until an order is obtained from a court of a state having jurisdiction under [sections 21 through 23]. If a child custody proceeding has not been or is not commenced in a court of a state having jurisdiction under [sections 21 through 23], a child custody determination made under this section becomes a final determination if it so provides and this state becomes the home state of the child.
(3) If there is a previous child custody determination that is entitled to be enforced under this chapter or a child custody proceeding has been commenced in a court of a state having jurisdiction under [sections 21 through 23], any order issued by a court of this state under this section must specify in the order a period of time that the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction under [sections 21 through 23]. The order issued in this state remains in effect until an order is obtained from the other state within the period specified or until the period expires.
(4) A court of this state that has been asked to make a child custody determination under this section, upon being informed that a child custody proceeding has been commenced in, or a child custody determination has been made by, a court of a state having jurisdiction under [sections 21 through 23], shall immediately communicate with the other court. A court of this state that is exercising jurisdiction pursuant to [sections 21 through 23], upon being informed that a child custody proceeding has been commenced in, or a child custody determination has been made by, a court of another state under a statute similar to this section, shall immediately communicate with the court of that state. The purpose of the communication is to resolve the emergency, to protect the safety of the parties and the child, and to determine a period for the duration of the temporary order.
Section 25. Definitions. In [sections 25 through 41]:
(1) "Petitioner" means a person who seeks enforcement of an order for the return of a child under the Hague Convention on the Civil Aspects of International Child Abduction or enforcement of a child custody determination.
(2) "Respondent" means a person against whom a proceeding has been commenced for enforcement of an order for return of a child under the Hague Convention on the Civil Aspects of International Child Abduction or enforcement of a child custody determination.
Section 26. Enforcement under Hague Convention. Under [sections 25 through 41], a court of this state may enforce an order for the return of the child that was made under the Hague Convention on the Civil Aspects of International Child Abduction as if it were a child custody determination.
Section 27. Duty to enforce. (1) A court of this state shall recognize and enforce a child custody determination of a court of another state if the latter court exercised jurisdiction in substantial conformity with this chapter or the determination was made under factual circumstances meeting the jurisdictional standards of this chapter and the determination has not been modified in accordance with this chapter.
(2) A court of this state may utilize any remedy available under other law of this state to enforce a child custody determination made by a court of another state. The procedure provided by [sections 25 through 41] does not affect the availability of other remedies to enforce a child custody determination.
Section 28. Temporary visitation. (1) A court of this state that does not have jurisdiction to modify a child custody determination may issue a temporary order enforcing:
(a) a visitation schedule made by a court of another state; or
(b) the visitation provisions of a child custody determination of another state that does not provide for a specific visitation schedule.
(2) If a court of this state makes an order under subsection (1)(b), it shall specify in the order a period of time that it considers adequate to allow the petitioner to obtain an order from a court having jurisdiction under the criteria specified in 40-7-105, 40-7-107 through 40-7-110, 40-7-112, and [sections 21 through 24]. The order remains in effect until an order is obtained from the other court or the period expires.
Section 29. Registration of child custody determination. (1) A child custody determination issued by a court of another state may be registered in this state, with or without a simultaneous request for enforcement, by sending to district court in this state:
(a) a letter or other document requesting registration;
(b) two copies, including one certified copy, of the determination sought to be registered and a statement under penalty of perjury that to the best of the knowledge and belief of the person seeking registration, the order has not been modified; and
(c) the name and address of the person seeking registration and any parent or person acting as a parent who has been awarded custody or visitation in the child custody determination sought to be registered.
(2) On receipt of the documents required by subsection (1), the registering court shall:
(a) cause the determination to be filed as a foreign judgment, together with one copy of any accompanying documents and information, regardless of their form; and
(b) serve notice upon the persons named pursuant to subsection (1)(c) and provide them with an opportunity to contest the registration in accordance with this section.
(3) The notice required by subsection (2)(b) must state that:
(a) a registered determination is enforceable as of the date of the registration in the same manner as a determination issued by a court of this state;
(b) a hearing to contest the validity of the registered determination must be requested within 20 days after service of notice; and
(c) failure to contest the registration will result in confirmation of the child custody determination and preclude further contest of that determination with respect to any matter that could have been asserted.
(4) A person seeking to contest the validity of a registered order shall request a hearing within 20 days after service of the notice. At that hearing, the court shall confirm the registered order unless the person contesting registration establishes that:
(a) the issuing court did not have jurisdiction under 40-7-105, 40-7-107 through 40-7-110, 40-7-112, and [sections 21 through 24];
(b) the child custody determination sought to be registered has been vacated, stayed, or modified by a court having jurisdiction to do so under 40-7-105, 40-7-107 through 40-7-110, 40-7-112, and [sections 21 through 24]; or
(c) the person contesting registration was entitled to notice, but notice was not given in accordance with the standards of 40-7-106, in the proceedings before the court that issued the order for which registration is sought.
(5) If a timely request for a hearing to contest the validity of the registration is not made, the registration is confirmed as a matter of law and the person requesting registration and all persons served must be notified of the confirmation.
(6) Confirmation of a registered order, whether by operation of law or after notice and hearing, precludes further contest of the order with respect to any matter that could have been asserted at the time of registration.
Section 30. Enforcement of registered determination. (1) A court of this state may grant any relief normally available under the law of this state to enforce a registered child custody determination made by a court of another state.
(2) A court of this state shall recognize and enforce, but may not modify, except in accordance with 40-7-105, 40-7-107 through 40-7-110, 40-7-112, and [sections 21 through 24], a registered child custody determination of a court of another state.
Section 31. Simultaneous proceedings. If a proceeding for enforcement under [sections 25 through 41] is commenced in a court of this state and the court determines that a proceeding to modify the determination is commenced in a court of another state having jurisdiction to modify the determination under 40-7-105, 40-7-107 through 40-7-110, 40-7-112, and [sections 21 through 24], the enforcing court shall immediately communicate with the modifying court. The proceeding for enforcement continues unless the enforcing court, after consultation with the modifying court, stays or dismisses the proceeding.
Section 32. Expedited enforcement of child custody determination. (1) A petition under [sections 25 through 41] must be verified. Certified copies of all orders sought to be enforced and of any order confirming registration must be attached to the petition. A copy of a certified copy of an order may be attached instead of the original.
(2) A petition for enforcement of a child custody determination must state:
(a) whether the court that issued the determination identified the jurisdictional basis that it relied upon in exercising jurisdiction and, if so, what the basis was;
(b) whether the determination for which enforcement is sought has been vacated, stayed, or modified by a court whose decision must be enforced under this chapter or federal law and, if so, identify the court, the case number of the proceeding, and the action taken;
(c) whether any proceeding has been commenced that could affect the current proceeding, including proceedings relating to domestic violence, protective orders, termination of parental rights, and adoptions, and if so, identify the court, the case number, and the nature of the proceeding;
(d) the present physical address of the child and the respondent, if known;
(e) whether relief in addition to the immediate physical custody of the child and attorney fees is sought, including a request for assistance from law enforcement officials and, if so, the relief sought; and
(f) if the child custody determination has been registered and confirmed under [section 29], the date and place of registration.
(3) Upon the filing of a petition, the court shall issue an order directing the respondent to appear in person with or without the child at a hearing and may enter any order necessary to ensure the safety of the parties and the child. The hearing must be held on the next judicial day after service of the order unless that date is impossible. In that event, the court shall hold the hearing on the first judicial day possible. The court may extend the date of hearing at the request of the petitioner.
(4) The order must state the time and place of the hearing and must advise the respondent that at the hearing, the court will order the delivery of the child and the payment of fees, costs, and expenses under [section 36] and may set an additional hearing to determine whether further relief is appropriate, unless the respondent appears and establishes that:
(a) the child custody determination has not been registered and confirmed under [section 29] and that:
(i) the issuing court did not have jurisdiction under 40-7-105, 40-7-107 through 40-7-110, 40-7-112, and [sections 21 through 24];
(ii) the child custody determination for which enforcement is sought has been vacated, stayed, or modified by a court having jurisdiction to do so under 40-7-105, 40-7-107 through 40-7-110, 40-7-112, and [sections 21 through 24] or federal law; or
(iii) the respondent was entitled to notice, but notice was not given in accordance with the standards of 40-7-106, in the proceedings before the court that issued the order for which enforcement is sought; or
(b) the child custody determination for which enforcement is sought was registered and confirmed under [section 29], but has been vacated, stayed, or modified by a court of a state having jurisdiction to do so under 40-7-105, 40-7-107 through 40-7-110, 40-7-112, and [sections 21 through 24] or federal law.
Section 33. Service of petition and order. Except as otherwise provided in [section 35], the petition and order must be served, by any method authorized by the law of this state, upon the respondent and any person who has physical custody of the child.
Section 34. Hearing and order. (1) Unless the court issues a temporary emergency order pursuant to [section 24], upon a finding that a petitioner is entitled to the physical custody of the child immediately, the court shall order the child delivered to the petitioner unless the respondent establishes that:
(a) the child custody determination has not been registered and confirmed under [section 29] and that:
(i) the issuing court did not have jurisdiction under 40-7-105, 40-7-107 through 40-7-110, 40-7-112, and [sections 21 through 24];
(ii) the child custody determination for which enforcement is sought has been vacated, stayed, or modified by a court of a state having jurisdiction to do so under 40-7-105, 40-7-107 through 40-7-110, 40-7-112, and [sections 21 through 24] or federal law; or
(iii) the respondent was entitled to notice, but notice was not given in accordance with the standards of 40-7-106, in the proceedings before the court that issued the order for which enforcement is sought; or
(b) the child custody determination for which enforcement is sought was registered and confirmed under [section 29], but has been vacated, stayed, or modified by a court of a state having jurisdiction to do so under 40-7-105, 40-7-107 through 40-7-110, 40-7-112, and [sections 21 through 24] or federal law.
(2) The court shall award the fees, costs, and expenses authorized under [section 36] and may grant additional relief, including a request for the assistance of law enforcement officials, and may set a further hearing to determine whether additional relief is appropriate.
(3) If a party called to testify refuses to answer on the ground that the testimony may be self-incriminating, the court may draw an adverse inference from the refusal.
(4) A privilege against disclosure of communications between spouses and a defense of immunity based on the relationship of husband and wife or parent and child may not be invoked in a proceeding under [sections 25 through 41].
Section 35. Warrant to take physical custody of child. (1) Upon the filing of a petition seeking enforcement of a child custody determination, the petitioner may file a verified application for the issuance of a warrant to take physical custody of the child if the child is imminently likely to suffer serious physical harm or to be removed from this state.
(2) If the court, upon the testimony of the petitioner or other witness, finds that the child is imminently likely to suffer serious physical harm or to be removed from this state, it may issue a warrant to take physical custody of the child. The petition must be heard on the next judicial day after the warrant is executed unless that date is impossible. In that event, the court shall hold the hearing on the first judicial day possible. The application for the warrant must include the statements required by [section 32(2)].
(3) A warrant to take physical custody of a child must:
(a) recite the facts upon which a conclusion of imminent serious physical harm or removal from the jurisdiction is based;
(b) direct law enforcement officers to take physical custody of the child immediately; and
(c) provide for the placement of the child, pending final relief.
(4) The respondent must be served with the petition, warrant, and order immediately after the child is taken into physical custody.
(5) A warrant to take physical custody of a child is enforceable throughout this state. If the court finds on the basis of the testimony of the petitioner or other witness that a less intrusive remedy is not effective, it may authorize law enforcement officers to enter private property to take physical custody of the child. If required by exigent circumstances of the case, the court may authorize law enforcement officers to make a forcible entry at any hour.
(6) The court may impose conditions upon placement of a child to ensure the appearance of the child and the child's custodian.
Section 36. Costs, fees, and expenses. (1) The court shall award the prevailing party, including a state, necessary and reasonable expenses incurred by or on behalf of the party, including costs, communication expenses, attorney fees, investigative fees, expenses for witnesses, travel expenses, and child care during the course of the proceedings, unless the party from whom fees or expenses are sought establishes that the award would be clearly inappropriate.
(2) The court may not assess fees, costs, or expenses against a state unless authorized by law other than this chapter.
Section 37. Recognition and enforcement. A court of this state shall accord full faith and credit to an order issued by another state and consistent with this chapter that enforces a child custody determination by a court of another state unless the order has been vacated, stayed, or modified by a court having jurisdiction to do so under 40-7-105, 40-7-107 through 40-7-110, 40-7-112, and [sections 21 through 24].
Section 38. Appeals. An appeal may be taken from a final order in a proceeding under [sections 25 through 41]. Unless the court enters a temporary emergency order under [section 24], the enforcing court may not stay an order enforcing a child custody determination pending appeal.
Section 39. Role of prosecutor. (1) In a case arising under this chapter or involving the Hague Convention on the Civil Aspects of International Child Abduction, the prosecutor may take any lawful action, including resorting to a proceeding under [sections 25 through 41] or any other available civil proceeding, to locate a child, obtain the return of a child, or enforce a child custody determination if there is:
(a) an existing child custody determination;
(b) a request to do so from a court in a pending child custody proceeding;
(c) a reasonable belief that a criminal statute has been violated; or
(d) a reasonable belief that the child has been wrongfully removed or retained in violation of the Hague Convention on the Civil Aspects of International Child Abduction.
(2) A prosecutor acts on behalf of the court and may not represent any party to a child custody determination.
Section 40. Role of law enforcement. At the request of a prosecutor acting under [section 39], a law enforcement officer may take any lawful action reasonably necessary to locate a child or a party and to assist a prosecutor with responsibilities under [section 39].
Section 41. Costs and expenses. If the respondent is not the prevailing party, the court may assess against the respondent all direct expenses and costs incurred by the prosecutor and law enforcement officers under [section 39 or 40].
Section 42. Application and construction. In applying and construing this chapter, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
Section 43. Repealer. Sections 40-7-102, 40-7-104, 40-7-111, 40-7-113, 40-7-114, 40-7-115, 40-7-116, 40-7-117, 40-7-118, 40-7-120, 40-7-121, 40-7-122, 40-7-123, and 40-7-124, MCA, are repealed.
Section 44. Transitional provision. A motion or other request for relief made in a child custody proceeding or to enforce a child custody determination that was commenced before [the effective date of this act] is governed by the law in effect at the time the motion or other request was made.
Section 45. Notification to tribal governments. The secretary of state shall send a copy of [this act] to each tribal government located on the seven Montana reservations and to the Little Shell band of Chippewa.
Section 46. Codification instruction. [Sections 14 through 41] are intended to be codified as an integral part of Title 40, chapter 7, and the provisions of Title 40, chapter 7, apply to [sections 14 through 41].
Section 47. 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.
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