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. § 40-4-228 (2026)

Parenting And Visitation Matters Between Natural Parent And Third Party

✓ current as of May 2026
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  1. MCA Contents
  2. TITLE 40
  3. CHAPTER 4
  4. Part 2
  5. 40-4-228 Parenting and visitation matters between natural parent and third party

TITLE 40. FAMILY LAW

CHAPTER 4. TERMINATION OF MARRIAGE, CHILD CUSTODY, SUPPORT

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

Parenting And Visitation Matters Between Natural Parent And Third Party

40-4-228. 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.

(6) If the parent receives military service orders that involve moving a substantial distance from the parent's residence or otherwise have a material effect on the parent's ability to parent the child for the period the parent is called to military service, as defined in 10-1-1003, the court may grant visitation rights to a family member of the parent with a close and substantial relationship to the minor child during the parent's absence if granting visitation rights is in the best interests of the child as determined by 40-4-212.

History: En. Sec. 4, Ch. 414, L. 1999; amd. Sec. 4, Ch. 356, L. 2009.

Notes of Decisions
Cited in 26 cases (7 in the last 5 years), 2002–2026 · leading case: Kulstad v. Maniaci, 2009 MT 326 (Mont. 2009).
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Kulstad v. Maniaci, 2009 MT 326 (Mont. 2009). · cites it 108× “The court further determined that § 40-4-228, MCA, applied to the final adjudication of parenting between the parties.”
Sayler v. Yan Sun, 2023 MT 175 (Mont. 2023). · cites it 120× “As a non-exhaustive example, § 40-4-228, MCA, further provides that: 36 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…”
Sayler v. Yan Sun, 2023 MT 175 (Mont. 2023). · cites it 120× “As a non-exhaustive example, § 40-4-228, MCA, further provides that: 36 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…”
Roth v. Weston, 789 A.2d 431 (Conn. 2002). · cites it 2× “022 (2000) (permitting visitation with person with whom *221 child has established emotional ties creating parent-child relationship); Mont. Code Ann. § 40-4-228 (2001) (same); Nev.”
In Re The Parenting of: D.C.S., 2025 MT 179 (Mont. 2025). · cites it 25× “Rebeccah also filed a motion to amend or, alternatively, for relief from the February 14 order that granted the Scotts’ motion for ex parte emergency third-party parenting, arguing that the order was based on manifest error because the Scotts had not yet established the…”
In Re App, 2011 MT 50 (Mont. 2011). · cites it 25× “Under this statute, 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 (1) the natural parent has engaged in conduct that is contrary to the child-parent relationship; (2) the nonparent has…”
Higgins v. Cumber, 2014 MT 306 (Mont. 2014). · cites it 29× “f 17 Although we have previously declined to apply the reasoning of Polasek to the best interests analysis of § 40-4-228(2), MCA, that statute and our decisions interpreting it are distinguishable such that we are not barred from applying Polasek here.”
Grice v. Price, 2011 MT 50 (Mont. 2011). · cites it 25× “Under this statute, 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 (1) the natural parent has engaged in conduct that is contrary to the child-parent relationship; (2) the nonparent has…”
In Re the Parenting of N.M.V., 2016 MT 322 (Mont. 2016). · cites it 19× “From time to time, Verploegen and Cross discussed marriage and Cross’s adoption of N.”
Schwarz v. Schwarz (In Re L.R.S.), 2018 MT 48 (Mont. 2018). · cites it 12× “¶2 We restate the issue on appeal as: Absent a consideration of whether the minor child's mother was fit, did the District Court err in awarding visitation, pursuant to § 40-4-228, MCA, to the child's paternal grandparents over mother's objection? FACTUAL AND PROCEDURAL…”
Matter of R.J.F., YINC, 2026 MT 125 (Mont. 2026). · cites it 28× “She further argued the Plan was void ab initio because it was entered during the pendency of the initial child welfare case, DN 16-407, in violation of § 40-4-228, MCA, and In re U.A.C., 2022 MT 230 , ¶ 25, 410 Mont.”
In Re Lfa, 2009 MT 363 (Mont. 2009). · cites it 9× “As we observed in Kulstad , ¶ 70, and above, in order to be awarded a parental interest under § 40-4-228, MCA, a party first must establish a child-parent relationship with the child or children.”
Show all 26 citing cases →
— Mont. Code Ann. § 40-4-228(1) — 7 cases
Sayler v. Yan Sun, 2023 MT 175 (Mont. 2023). “As a non-exhaustive example, § 40-4-228, MCA, further provides that: 36 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…”
Sayler v. Yan Sun, 2023 MT 175 (Mont. 2023). “As a non-exhaustive example, § 40-4-228, MCA, further provides that: 36 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…”
Matter of R.J.F., YINC, 2026 MT 125 (Mont. 2026). “She further argued the Plan was void ab initio because it was entered during the pendency of the initial child welfare case, DN 16-407, in violation of § 40-4-228, MCA, and In re U.A.C., 2022 MT 230 , ¶ 25, 410 Mont.”
Matter of R.J.F., YINC, 2026 MT 125 (Mont. 2026).
Cromwell v. Schaefer (In re A.J.C.), 427 P.3d 67 (Mont. 2018).
— Mont. Code Ann. § 40-4-228(2) — 18 cases
Kulstad v. Maniaci, 2009 MT 326 (Mont. 2009). “The court further determined that § 40-4-228, MCA, applied to the final adjudication of parenting between the parties.”
In Re The Parenting of: D.C.S., 2025 MT 179 (Mont. 2025). “Rebeccah also filed a motion to amend or, alternatively, for relief from the February 14 order that granted the Scotts’ motion for ex parte emergency third-party parenting, arguing that the order was based on manifest error because the Scotts had not yet established the…”
Sayler v. Yan Sun, 2023 MT 175 (Mont. 2023). “As a non-exhaustive example, § 40-4-228, MCA, further provides that: 36 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…”
In Re the Parenting of N.M.V., 2016 MT 322 (Mont. 2016). “From time to time, Verploegen and Cross discussed marriage and Cross’s adoption of N.”
Sayler v. Yan Sun, 2023 MT 175 (Mont. 2023). “As a non-exhaustive example, § 40-4-228, MCA, further provides that: 36 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…”
— Mont. Code Ann. § 40-4-228(2)(a) — 9 cases
Kulstad v. Maniaci, 2009 MT 326 (Mont. 2009). “The court further determined that § 40-4-228, MCA, applied to the final adjudication of parenting between the parties.”
Sayler v. Yan Sun, 2023 MT 175 (Mont. 2023). “As a non-exhaustive example, § 40-4-228, MCA, further provides that: 36 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…”
Sayler v. Yan Sun, 2023 MT 175 (Mont. 2023). “As a non-exhaustive example, § 40-4-228, MCA, further provides that: 36 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…”
In Re The Parenting of: D.C.S., 2025 MT 179 (Mont. 2025). “Rebeccah also filed a motion to amend or, alternatively, for relief from the February 14 order that granted the Scotts’ motion for ex parte emergency third-party parenting, arguing that the order was based on manifest error because the Scotts had not yet established the…”
In Re Lfa, 2009 MT 363 (Mont. 2009). “As we observed in Kulstad , ¶ 70, and above, in order to be awarded a parental interest under § 40-4-228, MCA, a party first must establish a child-parent relationship with the child or children.”
— Mont. Code Ann. § 40-4-228(2)(a)(b) — 1 case
Kulstad v. Maniaci, 2009 MT 326 (Mont. 2009). “The court further determined that § 40-4-228, MCA, applied to the final adjudication of parenting between the parties.”
— Mont. Code Ann. § 40-4-228(2)(b) — 8 cases
Kulstad v. Maniaci, 2009 MT 326 (Mont. 2009). “The court further determined that § 40-4-228, MCA, applied to the final adjudication of parenting between the parties.”
Sayler v. Yan Sun, 2023 MT 175 (Mont. 2023). “As a non-exhaustive example, § 40-4-228, MCA, further provides that: 36 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…”
In Re The Parenting of: D.C.S., 2025 MT 179 (Mont. 2025). “Rebeccah also filed a motion to amend or, alternatively, for relief from the February 14 order that granted the Scotts’ motion for ex parte emergency third-party parenting, arguing that the order was based on manifest error because the Scotts had not yet established the…”
Sayler v. Yan Sun, 2023 MT 175 (Mont. 2023). “As a non-exhaustive example, § 40-4-228, MCA, further provides that: 36 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…”
In Re App, 2011 MT 50 (Mont. 2011). “Under this statute, 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 (1) the natural parent has engaged in conduct that is contrary to the child-parent relationship; (2) the nonparent has…”
— Mont. Code Ann. § 40-4-228(3) — 8 cases
Sayler v. Yan Sun, 2023 MT 175 (Mont. 2023). “As a non-exhaustive example, § 40-4-228, MCA, further provides that: 36 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…”
Higgins v. Cumber, 2014 MT 306 (Mont. 2014). “f 17 Although we have previously declined to apply the reasoning of Polasek to the best interests analysis of § 40-4-228(2), MCA, that statute and our decisions interpreting it are distinguishable such that we are not barred from applying Polasek here.”
Sayler v. Yan Sun, 2023 MT 175 (Mont. 2023). “As a non-exhaustive example, § 40-4-228, MCA, further provides that: 36 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…”
In Re App, 2011 MT 50 (Mont. 2011). “Under this statute, 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 (1) the natural parent has engaged in conduct that is contrary to the child-parent relationship; (2) the nonparent has…”
Schwarz v. Schwarz (In Re L.R.S.), 2018 MT 48 (Mont. 2018). “¶2 We restate the issue on appeal as: Absent a consideration of whether the minor child's mother was fit, did the District Court err in awarding visitation, pursuant to § 40-4-228, MCA, to the child's paternal grandparents over mother's objection? FACTUAL AND PROCEDURAL…”
— Mont. Code Ann. § 40-4-228(4) — 3 cases
Kulstad v. Maniaci, 2009 MT 326 (Mont. 2009). “The court further determined that § 40-4-228, MCA, applied to the final adjudication of parenting between the parties.”
Sayler v. Yan Sun, 2023 MT 175 (Mont. 2023). “As a non-exhaustive example, § 40-4-228, MCA, further provides that: 36 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…”
Sayler v. Yan Sun, 2023 MT 175 (Mont. 2023). “As a non-exhaustive example, § 40-4-228, MCA, further provides that: 36 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…”
— Mont. Code Ann. § 40-4-228(5) — 7 cases
Kulstad v. Maniaci, 2009 MT 326 (Mont. 2009). “The court further determined that § 40-4-228, MCA, applied to the final adjudication of parenting between the parties.”
Sayler v. Yan Sun, 2023 MT 175 (Mont. 2023). “As a non-exhaustive example, § 40-4-228, MCA, further provides that: 36 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…”
In Re Lfa, 2009 MT 363 (Mont. 2009). “As we observed in Kulstad , ¶ 70, and above, in order to be awarded a parental interest under § 40-4-228, MCA, a party first must establish a child-parent relationship with the child or children.”
Filpula v. Ankney, 2009 MT 363 (Mont. 2009).
Sayler v. Yan Sun, 2023 MT 175 (Mont. 2023). “As a non-exhaustive example, § 40-4-228, MCA, further provides that: 36 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…”
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