SENATE BILL NO. 486
INTRODUCED BY M. HALLIGAN, J. BOHLINGER
AN ACT REVISING THE LAWS RELATING TO PARENTING MATTERS BETWEEN NATURAL PARENTS AND THIRD PARTIES; AUTHORIZING COURTS TO MAKE A DETERMINATION THAT A PARENTAL INTEREST OR VISITATION RIGHT MAY BE AWARDED TO A THIRD PARTY WHEN THE PARENT'S CONDUCT IS CONTRARY TO A CHILD-PARENT RELATIONSHIP AND THE DETERMINATION SERVES THE BEST INTERESTS OF THE CHILD; AND AMENDING SECTIONS 40-4-211 AND 40-4-221, MCA.
WHEREAS, it is undisputed that parents have a fundamental right to autonomy in child-rearing decisions; and
WHEREAS, the United States Supreme Court has long recognized a constitutionally protected interest of parents to raise their children without state interference; and
WHEREAS, the liberty interest guaranteed by the 14th amendment to the United States Constitution includes freedom to engage in any of the common occupations of life, to acquire useful knowledge, to marry, to establish a home, and to bring up children; and
WHEREAS, the freedom of personal choice in matters of family life is a fundamental liberty interest protected by the 14th amendment to the United States Constitution; and
WHEREAS, the integrity of the family unit has found protection in the due process clause of the 14th amendment, the equal protection clause of the 14th amendment, and the 9th amendment; and
WHEREAS, the Montana Supreme Court has recognized the constitutionally protected rights of natural parents to parent their children; and
WHEREAS, the Montana Legislature recognizes that the careful protection of parental rights is not merely a matter of legislative grace but is constitutionally required; and
WHEREAS, the Montana Constitution recognizes the constitutional rights of children; and
WHEREAS, Article II, section 15, of the Montana Constitution provides that the rights of persons under 18 years of age shall include but not be limited to all the fundamental rights of Article II, unless specifically precluded by law which enhances the protection of the persons; and
WHEREAS, these fundamental rights include but are not limited to freedom; pursuing life's basic necessities, enjoying and defending life and liberty, and seeking safety, health, and happiness in lawful ways and the rights of individual dignity and privacy; and
WHEREAS, the Legislature finds that there are times when the rights of parents must be balanced against the rights of children; and
WHEREAS, the Legislature further finds that the courts need direction and authority to consider the best interests of children in parenting and visitation matters; and
WHEREAS, the Legislature finds it is appropriate to establish standards and direction for resolving these issues.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Section 40-4-211, MCA, is amended to read:
"40-4-211. Jurisdiction -- commencement of parenting proceedings. (1) A court of this state competent to decide parenting matters has jurisdiction to make a parenting determination by initial or 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 proceedings and the child is absent from this state because of the child's removal or retention by any person 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 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 the child because 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 parenting of the child; and
(ii) it is in 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 parenting determination.
(3) Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine parenting of the child.
(4) A 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 parenting in the county in which the child is permanently resident or found; or
(b) by a person other than a parent if the person has established a child-parent relationship with the child, by filing a
petition for parenting in the county in which the child is permanently resident resides or is found, but only if the child is not
physically residing with one of the child's parents.
(5) Notice of a parenting proceeding must be given to the child's parent, guardian, caretaker, those persons 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.
(6) For purposes of subsection (4)(b), "child-parent relationship" means a relationship that exists or did exist, in whole or in part, preceding the filing of an action under this section, in which a person provides or provided for the physical needs of a child by supplying food, shelter, and clothing and provides or provided the child with necessary care, education, and discipline and which relationship continues or existed on a day-to-day basis through interaction, companionship, interplay, and mutuality that fulfill the child's psychological needs for a parent as well as the child's physical needs."
Section 2. Section 40-4-221, MCA, is amended to read:
"40-4-221. Determination of child's care upon death of parent. (1) Upon the death of a parent, one or more parties named in subsection (2) may request a parenting plan hearing. The surviving parent must be a party in any proceeding brought under this section.
(2) Upon the death of a parent, any of the following parties may request a parenting plan hearing:
(a) the natural parent;
(b) the surviving spouse of the deceased parent;
(c) a person nominated by the will of the deceased 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) a person who has established with the child a child-parent relationship, as defined in 40-4-211(6);
(f)(g) any other party whom, upon showing of good cause, the court permits to intervene as an interested party.
(3) The hearing and determination of a parenting plan is governed by this part."
Section 3. Rights of parents and children -- policy -- findings. (1) It is the policy of the state of Montana:
(a) to recognize the constitutionally protected rights of parents and the integrity of the family unit;
(b) to recognize a child's constitutionally protected rights, including all fundamental rights unless those rights are specifically precluded by laws that enhance their protection; and
(c) to ensure that the best interests of the child are met in parenting proceedings.
(2) The legislature finds:
(a) that while it is in the best interests of a child to maintain a relationship with a natural parent, a natural parent's inchoate interest in the child requires constitutional protection only when the parent has demonstrated a timely commitment to the responsibilities of parenthood; and
(b) that a parent's constitutionally protected interest in the parental control of a child should yield to the best interests of the child when the parent's conduct is contrary to the child-parent relationship.
Section 4. Parenting and visitation matters between natural parent and third party. (1) In cases when a nonparent seeks a parental interest in a child under 40-4-211 or visitation with a child, the provisions of this chapter apply unless a separate action is pending under Title 41, chapter 3.
(2) A court may award a parental interest to a person other than a natural parent when it is shown by clear and convincing evidence that:
(a) the natural parent has engaged in conduct that is contrary to the child-parent relationship; and
(b) the nonparent has established with the child a child-parent relationship, as defined in 40-4-211, and it is in the best interests of the child to continue that relationship.
(3) For purposes of an award of visitation rights under this section, a court may order visitation based on the best interests of the child.
(4) For purposes of this section, voluntarily permitting a child to remain continuously in the care of others for a significant period of time so that the others stand in loco parentis to the child is conduct that is contrary to the parent-child relationship.
(5) It is not necessary for the court to find a natural parent unfit before awarding a parental interest to a third party under this section.
Section 5. Codification instruction. [Sections 3 and 4] 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 3 and 4].
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