The state of Montana takes a somewhat different approach to the topic of grandparents' visitation rights than other states. Grandparents may petition for "reasonable rights to contact" with a grandchild regardless of the status of the child's parents. Getting visitation rights for a child of parents who have been deemed "unfit" is generally easier than if the parent is considered fit. If a parent whose parental rights have not been terminated objects to such contact, the grandparent's legal task become harder, but not impossible.
How to Win Your Suit
One way to win visitation over the wishes of a parent is to present "clear and convincing evidence" of the parent's unfitness. In some states and situations, parental unfitness simply means that the parent is unfit to make the proper decision in regard to grandparent visitation. That's not what the Montana statute is talking about. An unfit parent in the context of Montana law simply means one who fails to properly take care of a child.
In order to prove parental unfitness in Montana, a grandparent must prove one of the conditions enumerated in statute 42-2-608. These include:
- A parent has lost custody due to abuse or neglect.
- The parent has abandoned the child.
- The parent, although able, has not contributed to the child's support for a year.
- The parent is in violation of an order to support the child or another child of the same birth mother.
- The parent has been found guilty of a crime against a child, including aggravated assault, sexual assault, sexual intercourse without consent, incest, homicide, sexual abuse or ritual abuse.
- The child has been maintained by a public or private agency for one year without the parent contributing to the child's support, if able.
- The parent has been convicted of a crime or of violating a protective order, indicating that the parent is unfit.
Even if a parent is proven unfit, the grandparents must still present evidence that having contact is in the best interests of the child.
When Parents Are Fit
If a parent is considered fit, a grandparent may win the right to contact with the grandchild over parental objections if "clear and convincing evidence" is presented that the contact with the grandparent would be in the best interests of the child and that the presumption in favor of the parent's wishes has been rebutted.
Petitions for grandparent-grandchild contact cannot be presented more often than once every two years unless something about the grandchild's situation has changed. The court may appoint an attorney to represent the interests of the child if it deems necessary. Adoption terminates the rights of the grandparents unless the adopting party is a stepparent or grandparent.
For more information read up on Montana Statute 40-9-102. In 2009, the provisions of statute 40-9-102 were extended to great-grandparents in statue 40-9-103. You might also want to read up on the six things you need to know about grandparents' rights.