Mont. Code Ann. » TITLE 40. FAMILY LAW · CHAPTER 4. TERMINATION OF MARRIAGE, CHILD CUSTODY, SUPPORT · Part 2. Support, Custody, Visitation, and Related Provisions
Montana Code Annotated

Mont. Code Ann. § 40-4-221 (2026)

Determination Of Child's Care Upon Death Of Parent

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  1. MCA Contents
  2. TITLE 40
  3. CHAPTER 4
  4. Part 2
  5. 40-4-221 Determination of child's care upon death of parent

TITLE 40. FAMILY LAW

CHAPTER 4. TERMINATION OF MARRIAGE, CHILD CUSTODY, SUPPORT

Part 2. Support, Custody, Visitation, and Related Provisions

Determination Of Child's Care Upon Death Of Parent

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;

(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.

History: En. Secs. 1, 2, 3, Ch. 127, L. 1979; amd. Sec. 25, Ch. 343, L. 1997; amd. Sec. 2, Ch. 414, L. 1999.

Notes of Decisions
Cited in 21 cases (4 in the last 5 years), 1982–2023 · leading case: Erger v. Askren, 919 P.2d 388 (Mont. 1996).
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Erger v. Askren, 919 P.2d 388 (Mont. 1996). · cites it 29× “to Bill and petitioned the court for custody pursuant to § 40-4-221, MCA. The District Corut held a hearing on the matter and ordered that Patrick was the appropriate individual to have custody under the best interest of the child test even though he was not the natural father.”
Knopp v. Knopp, 2001 MT 120, 27 P.3d 953. · cites it 11× “Section 40-4-221, MCA (1997), at that time provided that upon the death of a parent who had custody of a child, custody should pass to the non-custodial parent unless a surviving spouse of the deceased parent seeks custody.”
In re Parenting of JNP, 2001 MT 120, 27 P.3d 953. · cites it 11× “Section 40-4-221, MCA (1997), at that time provided that upon the death of a parent who had custody of a child, custody should pass to the non-custodial parent unless a surviving spouse of the deceased parent seeks custody.”
McDermott v. Dougherty, 869 A.2d 751 (Md. 2005). · cites it 3× “In Brost, we held that the 1979 Legislature, in § 40-4-221, MCA, changed the test to be used in determining custody when a custodial parent dies.”
In re Ara, 919 P.2d 388 (Mont. 1996). · cites it 29× “to Bill and petitioned the court for custody pursuant to § 40-4-221, MCA. The District Court held a hearing on the matter and ordered that Patrick was the appropriate individual to have custody under the best interest of the child test even though he was not the natural father.”
Brost v. Glasgow, 651 P.2d 32 (Mont. 1982). · cites it 9× “Did the District Court lack jurisdiction to award custody to the grandmother without first terminating the natural father’s parental rights? Section 40-4-221, MCA, provides: “Determination of custody upon death of custodial parent.”
In re E.Y.R., 2019 MT 189, 446 P.3d 1117. · cites it 3× “Section 40-4-221, MCA, provides for determination of a child's care upon death of a parent and is not applicable to this case.”
Girard v. Williams, 1998 MT 231, 966 P.2d 1155. · cites it 4× “2d 388 , we held § 40-4-221, MCA, unconstitutional to the extent that it required a custody dispute initiated by a stepparent be resolved according to the best interest of the child.”
In re the Est., Conservatorship, & Guardianship of K.M., 929 P.2d 870 (Mont. 1996). · cites it 5× “Section 40-4-221, MCA, provides that, upon the death of a parent granted custody of a child, custody passes to the surviving noncustodial parent unless one or more of the parties named in subsection (2) requests a custody hearing.”
In re Guardianship of D.T.N., 914 P.2d 579 (Mont. 1996). · cites it 2× “It found that pursuant to § 40-4-221, MCA, the Nicholses had physical custody of the child and that when the physical custody commenced the child was not in the physical custody of either parent; that the natural father consented to the guardianship; that Krista “voluntarily…”
Weber v. Van De Kop, 740 P.2d 1139 (Mont. 1987). · cites it 9× “Section 40-4-221, MCA, was enacted after the Doney case and it changes the test to be used to determine custody in this situation.”
In re the Adoption of S.T.V., 733 P.2d 841 (Mont. 1987). · cites it 10× “in the event of her mother's death are remedied by § 40-4-221, MCA, which provides that appellant could petition for custody at that time.”
Show all 21 citing cases →
Mont. Code Ann. § 40-4-221(2): 1 case
Kelly v. Rose, 1999 MT 209N.
Mont. Code Ann. § 40-4-221(2)(e): 2 cases
In re the Est., Conservatorship, & Guardianship of K.M., 929 P.2d 870 (Mont. 1996). “Section 40-4-221, MCA, provides that, upon the death of a parent granted custody of a child, custody passes to the surviving noncustodial parent unless one or more of the parties named in subsection (2) requests a custody hearing.”
Matter of KM, 929 P.2d 870 (Mont. 1996).
Mont. Code Ann. § 40-4-221(2)(f): 1 case
Kelly v. Rose, 1999 MT 209N.
Mont. Code Ann. § 40-4-221(3): 1 case
Guardianship of J.S.M., 2021 MT 86, 484 P.3d 939.
Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.