Grandparent Visitation Petition - Montana

PETITION FOR GRANDPARENT-GRANDCHILD CONTACT

I. INTRODUCTION

Petitioner, [GRANDPARENT FULL LEGAL NAME] ("Petitioner"), a grandparent of the minor child named above, respectfully petitions this Court for reasonable grandparent-grandchild contact pursuant to Mont. Code Ann. § 40-9-102, and alleges as follows:

II. PARTIES

1. Petitioner (Grandparent).

2. Co-Petitioner (other grandparent, if applicable).

3. Respondent(s) (parent(s) / custodian).

4. The Minor Child.

III. JURISDICTION AND VENUE

5. Petitioner requests that this District Court exercise its authority under Mont. Code Ann. § 40-9-102, subject to any applicable child custody jurisdiction requirements.

6. Initial custody jurisdiction, if applicable (MCA §§ 40-7-103(7), 40-7-201). Check and complete the basis supported by the facts:

☐ Montana is the child's home state on commencement: the child lived here with a parent or person acting as a parent for at least six consecutive months immediately before this proceeding, or since birth if younger than six months.

☐ Montana was the child's home state within six months before this proceeding; the child is absent but a parent or person acting as a parent continues to live here.

☐ Another basis in MCA § 40-7-201(1) applies. State the facts and subsection: [________________________________].

☐ An existing child custody or contact order may affect jurisdiction. Issuing court, case number, order date, and child's current residences: [________________________________]. Petitioner requests a jurisdiction determination before this Petition is decided.

7. Petitioner requests venue in [________________________________] County for this reason: [________________________________]. Any venue objection or transfer is for the Court to decide under applicable law.

8. Custody information (MCA § 40-7-110). The information required under oath by § 40-7-110(1), if reasonably ascertainable, is ☐ stated below and covered by the verification ☐ attached in a sworn affidavit. If safety requires an address to be protected, request appropriate protection from the Court.

Child's current address: [________________________________]

Other custody or contact proceedings in which Petitioner participated, with court, case number, and determination date: [________________________________]

Other pending proceedings that could affect this case, including protection, termination, or adoption matters: [________________________________]

Nonparties with physical custody or a claimed custody or contact right, with addresses: [________________________________]

☐ There are NO other pending proceedings concerning custody, parenting, or contact of the child.

☐ There ARE other proceedings: Court ____________; Cause No. ____________; nature ____________.

9. Title 41 / Title 40 proceeding notice (§ 40-9-102(1)). ☐ The child is not the subject of, and has had no disposition in, an administrative or court proceeding under Title 41 or Title 40. ☐ The child is (or was) the subject of such a proceeding, and notice of this Petition is being given to the Montana Department of Public Health and Human Services (DPHHS) as required.

IV. STANDING AND PRIOR-PETITION LIMITATION

10. Standing. Petitioner is a grandparent of the minor child and is entitled to petition for reasonable contact under Mont. Code Ann. § 40-9-102(1).

11. Once-every-two-years limitation (§ 40-9-102(5)). Petitioner affirms (check one):

☐ Petitioner has not petitioned under MCA § 40-9-102 for contact with this child within the preceding two (2) years; or

☐ Petitioner petitioned within the past two (2) years, but there has been a significant change in circumstances of ☐ the child ☐ the child's parent, guardian, or custodian ☐ the grandparent, as described below: ____________________________________________________________.

12. Adoption bar (§ 40-9-102(8)). Petitioner affirms the child has not been adopted by a person other than a stepparent or a grandparent.

V. FACTUAL ALLEGATIONS

13. History of the relationship. The relationship between Petitioner and the child is as follows:

[Describe frequency and quality of contact; overnights; periods of care; activities, holidays, and support; the role Petitioner has played in the child's life. Be specific — Petitioner bears a clear-and-convincing burden.]
____________________________________________________________________________________
____________________________________________________________________________________

14. Circumstances leading to the petition. The circumstances giving rise to this Petition are:

[Describe when and how contact was reduced or denied, the reasons given, and informal efforts to resolve the matter.]
____________________________________________________________________________________
____________________________________________________________________________________

15. Petitioner's suitability. Petitioner affirms there is no history of abuse, neglect, domestic violence, substance abuse, or criminal conduct that would endanger the child, and that Petitioner can provide a safe and appropriate environment for the child.

VI. CONSTITUTIONAL AND STATUTORY STANDARD

16. Parental wishes. Petitioner acknowledges the presumption in favor of a fit parent's wishes under MCA § 40-9-102(4) and requests a hearing on the statutory findings before contact is granted over an objection.

17. Fitness determination (§ 40-9-102(2)). Petitioner acknowledges that, before contact may be granted over a parent's objection (where parental rights have not been terminated), the Court must determine — after a hearing on notice — whether the objecting parent is a fit parent, with fitness turning on whether the parent adequately cares for the child.

18. Clear-and-convincing burden over a fit parent's objection (§ 40-9-102(4)). Petitioner understands and alleges that, where the objecting parent is fit, the Court may grant contact only upon a finding, by clear and convincing evidence, that:

(a) contact with Petitioner would be in the best interest of the child; and

(b) the presumption in favor of the fit parent's wishes has been rebutted.

Petitioner alleges this heightened standard is met for the reasons set forth in Section VII.

19. Burden over an unfit parent's objection (§ 40-9-102(3)). In the alternative, if the Court determines the objecting parent is unfit, the Court may grant contact upon a finding, by clear and convincing evidence, that contact is in the child's best interest.

VII. BEST INTERESTS OF THE CHILD AND REBUTTAL OF THE PRESUMPTION

20. Petitioner alleges, and will prove by clear and convincing evidence, that grandparent-grandchild contact is in the child's best interest and that the presumption favoring the fit parent's wishes is rebutted because (check all that apply):

☐ A strong, established, and beneficial bond exists between Petitioner and the child;

☐ The child has relied on Petitioner for emotional support and stability, and abrupt loss of contact would be harmful to the child;

☐ The parent's decision to deny all contact is not reasonably related to the child's welfare;

☐ Petitioner will support, and not undermine, the child's relationship with the parent(s) and will accept that Petitioner is not the parent;

☐ The requested contact is reasonable and limited and will not disrupt the child's routine or the parent-child relationship;

☐ Other facts rebutting the presumption: ____________________________________________

21. Child's preference (if of suitable age and maturity). ☐ The child has expressed a desire for contact with Petitioner. ☐ The child is too young to express a meaningful preference.

22. Representation for the child (§ 40-9-102(6)-(7)). Petitioner ☐ requests ☐ does not request that the Court appoint an attorney to represent the child's interests, if those interests are not adequately represented, and/or a guardian ad litem to represent the child's best interests.

VIII. REQUESTED CONTACT SCHEDULE

23. Petitioner requests the following reasonable grandparent-grandchild contact:

IX. PRAYER FOR RELIEF

WHEREFORE, Petitioner respectfully prays that this Court:

A. Take jurisdiction of this cause and set the matter for hearing on notice as required by Mont. Code Ann. § 40-9-102(2);

B. Determine the fitness of any objecting parent and, as appropriate, appoint an attorney for the child and/or a guardian ad litem;

C. Find, by clear and convincing evidence, that grandparent-grandchild contact is in the best interest of the child and — as to any fit objecting parent — that the presumption in favor of the parent's wishes has been rebutted;

D. Enter an order granting Petitioner reasonable, defined grandparent-grandchild contact as set forth in Section VIII, including telephone/electronic contact and transportation arrangements;

E. Grant any future modification or enforcement relief only as authorized by applicable law; and

F. Grant such other and further relief as the Court deems just and proper.

DATED this ____ day of __________, 20____.

_________________________________
[GRANDPARENT NAME], Petitioner

_________________________________
[ATTORNEY NAME] (Mont. Bar No. __________)
[FIRM NAME]
[ADDRESS]
[PHONE] | [EMAIL]
Attorney for Petitioner

X. VERIFICATION

STATE OF MONTANA )
) ss.
COUNTY OF [COUNTY] )

I, [GRANDPARENT NAME], being first duly sworn, depose and state that I am the Petitioner in the foregoing Petition, that I have read it, and that the statements contained therein are true and correct to the best of my knowledge, information, and belief.

_________________________________
[GRANDPARENT NAME], Petitioner

SUBSCRIBED AND SWORN to before me this ____ day of __________, 20____.

_________________________________
Notary Public for the State of Montana
[SEAL]
My commission expires: __________

XI. CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing Petition was served upon the following by the method indicated:

DATED this ____ day of __________, 20____.

_________________________________
[ATTORNEY NAME / PETITIONER]

NOTICE TO RESPONDENT

You have been served with a Petition for Grandparent-Grandchild Contact. A responsive pleading is called a response under MCA § 40-9-101(3). Review the summons and applicable court rules for the response deadline. If you object and your parental rights have not been terminated, the Court must determine fitness after a hearing on notice before granting contact over your objection. You may appear and be heard and may retain an attorney.

ATTACHMENTS

☐ Custody information under oath in the first pleading or attached affidavit (MCA § 40-7-110)
☐ Evidence supporting clear-and-convincing showing (records of prior contact and care; correspondence; witness affidavits)
☐ Notice to DPHHS (if the child is/was subject to a Title 41 or Title 40 proceeding)
☐ Proposed Order Granting Grandparent-Grandchild Contact
☐ Filing fee or motion to waive fees

SOURCES & REFERENCES

• MCA § 40-9-101 — petition caption and pleadings
• MCA § 40-9-102 — grandparent-grandchild contact standards
• MCA § 40-7-103 — home-state definition
• MCA § 40-7-110 — sworn custody information
• MCA § 40-7-201 — initial child custody jurisdiction

This Petition is provided for informational purposes only. Have a Montana family-law attorney review the completed filing and service requirements.