A lot of people may have a similar situation to this one. What happens when a third-party non-parent wants visitation rights?
In In Re: The Parenting of A.P.P., the Montana Supreme Court awarded a third-party nonparent visitation rights when the mother passed away.
Section 40-4-228 MCA, governs the award of a child-parent interest and visitation rights to a third-party nonparent. 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 established a child-parent relationship; and
(3) it is in the best interest of the child to continue that nonparent relationship. Section 40-4-228(2), MCA.
A court may award visitation rights to a third-party nonparent based upon the best interests of the child. Section 40-4-228(3), MCA.
The facts of this case are as follows. Judith had two children from a previous marriage, one named Angelina. Judith gave birth to A.P.P. in late 2000. Brian and Judith married in May 2003, and divorced in January 2007. Judith was given custody of all three children, and Brian had visitation rights with A.P.P. and child support obligations.
Judith then married Gerald in July 2009. Two months after their marriage, Judith was killed in a motorcycle accident. All three children remained with Gerald. When Brian learned of Judith’s death, he requested Gerald return A.P.P. to his care. Gerald took A.P.P. to Brian who, in March 2010, moved out of state with her.
In July 2010, Gerald and Angelina petitioned for a determination of parental interest and visitation rights for A.P.P. The District Court held that: (1) Brian had engaged in conduct that was contrary to his child-parent relationship with A.P.P.; (2) Gerald had established a child-parent relationship with A.P.P.; and (3) it was in A.P.P.'s best interests to continue her relationship with her step-father and sister. The District Court granted to Gerald and Angelina parenting/visitation time with A.P.P.
Brian appealed the matter to the Supreme Court of Montana.
The Supreme Court of Montana then addressed and confirmed each of the District Court’s three rulings:
(1) Brian had engaged in conduct that was contrary to his child-parent relationship with A.P.P.
The District Court determined that Brian had engaged in conduct contrary to his parental relationship with A.P.P. because prior to Judith’s death, Brian had missed several visits with A.P.P. that he was entitled to, with months going by without Brian seeing A.P.P. Further, Brian failed to make all of the child support payments he owed.
The Supreme Court recognized that there was conflicting evidence brought forth from Brian and Gerald. However, the Court decided not to reweigh or disturb the District Court’s decision in weighing the evidence, and agreed that there was sufficient evidence to support the District Court’s findings.
(2) Gerald had established a child-parent relationship with A.P.P.
The Supreme Court found that Gerald had established a child-parent relationship with A.P.P. as defined in § 40-4-211, MCA, which is a finding that is required by § 40-4-228(2)(b), MCA. Section 40-4-211(6), MCA, states that a “child-parent relationship” between a child and a nonparent “means a relationship that”:
(a) exists or did exist, in whole or in part, preceding the filing of an action under this section, in which a person provides or provided for the physical needs of a child by supplying food, shelter, and clothing and provides or provided the child with necessary care, education, and discipline;
(b) 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
(c) meets or met the child's need for continuity of care by providing permanency or stability in residence, schooling, and activities outside of the home.
The Supreme Court agreed with the District Court that Gerald had established a child-parent relationship with A.P.P. This was due to the fact that the District Court had sufficient evidence that Gerald had financially supported A.P.P., helped her with her homework, provided transportation, prepared meals, attended her sporting events and school activities, and had taken care of A.P.P. while her mother was working.
As far as Angelina was concerned, Brian argued that Angelina should not be awarded visitation rights without finding a child-parent relationship between Angelina and A.P.P.
(3) Whether it was in A.P.P.’s best interests to continue her relationship with her step-father and sister.
The Supreme Court determined that it would be in A.P.P.’s best interests to maintain the relationships with Gerald and Angelina, after hearing testimony from all parties except for A.P.P.
Clearly, each case is factually different, and thus, may yield different results. But this is a case to consider for the rules of law if and when you are a non-parent, and are seeking visitation rights. Each MCA Section listed here can guide a person in determining whether to seek visitation rights.
I would recommend contacting a lawyer, including myself, if you are in a similar situation in Montana and need legal advice.
You may read this case here:
In Re the Parenting of A.P.P., 2011 MT 50
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