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Grandparents' Rights


Throughout civilization, grandparents have been instrumental in caring for the children, teaching the children, and passing on customs and traditions.  In most families, grandparents play an integral and valuable role.  A grandparent’s love is the type of love that is often unmatched by anyone else during a person’s lifetime.

In these perilous times, sometimes due to death, separation, or divorce, one parent may try to eliminate or minimize any contact between the children and the grandparents.  If that happens to you, you need the help of an attorney because, unfortunately, grandparents’ rights is not a crystal clear area of the law. 

Montana statutes present several avenues where grandparents can file an action with courts to obtain custody, visitation, and/or some other rights to their grandchildren.  However, case law does not unequivocally support grandparents’ rights when the grandparents’ wishes oppose the wishes of the parents or a single parent.  For this reason, knowledgeable and aggressive legal representation is needed. 

In 2000, the United States Supreme Court issued the case of Troxel v. Granville.  In that case, the Court decided that all decisions concerning the care, custody, and control of children belong to parents, and parents have a natural right to control such decisions – including who the children will have contact with.  However, that decision is not cut and dry, and Montana case law and Montana statutes provide grandparents with a number of avenues where their rights can be asserted.  However, because this is a tricky area of law, you do need experienced legal counsel.

My son is filing for a Parenting Plan, can I ask for grandparents' rights in the Parenting Plan?

Absolutely.  The court will look at the best interests of the child test, and under that test, certain factors may support a relationship with you.  Relevant factors include:

  • The wishes of the child’s parent or parents,
  • The wishes of the child, and 
  • The interaction or interrelationship of the child with the child’s parent or parents and siblings or any other person who significantly affects the child’s best interests

I have been raising my grandchildren for several months or years, and now their parent wants them back. Can I do anything?  

Yes.   Among other things, you could either file for a Petition for a Parenting Plan or file a Petition for a Parental Interest.  A Petition for a Parenting Plan will provide you with an avenue where you can request some level of contact between you and your grandchild.  A Petition for a Parental Interest is just like it sounds – you are asking the court to treat you the same as a parent, and provide you with essentially the same rights as a parent. 

What is required before I file a Petition for a Parenting Plan?

You can file a Petition for a Parenting Plan if you have established a “child-parent relationship with the child.”  A “child-parent relationship” means a relationship that:

  • Exists or did exist, in whole or in part, preceding the filing of an action in which a person provides or provided for the physical needs of the child by supplying food, shelter, and clothing and provides or provided the child with necessary care, education, and discipline;
  • 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; and
  • Meets or met the child’s needs for continuity of care by providing permanency or stability in residence, schooling, and activities outside the home

(If you require more information on parenting plans in general, please visit our web page on parenting plans.)

What is required before I file a Petition for a Parental Interest? 

You will need to assert that the natural parent has engaged in conduct that is contrary to the child-parent relationship, and that you have established a child-parent relationship with the child. 

Can you give me an example where a court might award me a parental interest?

For example, if your grandchild resided with you continuously for a significant period of time, and you essentially acted like the grandchild’s parent during that time, a court may award you a parental interest in your grandchild.  Even if you are not awarded a parental interest, a court may still award you with reasonable visitation.