Montana Code 41-3-442. Temporary legal custody
41-3-442. Temporary legal custody. (1) If a child is found to be a youth in need of care under 41-3-437, the court may grant temporary legal custody under 41-3-438 if the court determines by a preponderance of the evidence that:
Terms Used In Montana Code 41-3-442
- Best interests of the child: means the physical, mental, and psychological conditions and needs of the child and any other factor considered by the court to be relevant to the child. See Montana Code 41-3-102
- Department: means the department of public health and human services provided for in 2-15-2201. See Montana Code 41-3-102
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
- Parent: means a biological or adoptive parent or stepparent. See Montana Code 41-3-102
- Parent-child legal relationship: means the legal relationship that exists between a child and the child's birth or adoptive parents, as provided in Title 40, chapter 6, part 2, unless the relationship has been terminated by competent judicial decree as provided in 40-6-234, Title 42, or part 6 of this chapter. See Montana Code 41-3-102
- State: when applied to the different parts of the United States, includes the District of Columbia and the territories. See Montana Code 1-1-201
- Treatment plan: means a written agreement between the department and the parent or guardian or a court order that includes action that must be taken to resolve the condition or conduct of the parent or guardian that resulted in the need for protective services for the child. See Montana Code 41-3-102
- youth: means any person under 18 years of age. See Montana Code 41-3-102
(a)dismissing the petition would create a substantial risk of harm to the child or would be a detriment to the child’s physical or psychological well-being; and
(b)unless there is a finding that reasonable efforts are not required pursuant to 41-3-423, reasonable services have been provided to the parent or guardian to prevent the removal of the child from the home or to make it possible for the child to safely return home.
(2)An order for temporary legal custody may be in effect for no longer than 6 months.
(3)The granting of temporary legal custody to the department allows the department to place a child in care provided by a custodial or noncustodial parent, kinship foster home, youth foster home, youth group home, youth shelter care facility, or institution.
(4)Before the expiration of the order for temporary legal custody, the county attorney, the attorney general, or an attorney hired by the county shall petition for one of the following:
(a)an extension of temporary legal custody, not to exceed 6 months, upon a showing that:
(i)additional time is necessary for the parent or guardian to successfully complete a treatment plan; or
(ii)continuation of temporary legal custody is necessary because of the child’s individual circumstances;
(b)continued temporary placement of the child with the noncustodial parent, superseding any existing custodial order;
(c)termination of the parent-child legal relationship and:
(i)permanent legal custody with the right of adoption;
(ii)permanent placement of the child with the noncustodial parent, superseding any existing custodial order; or
(iii)appointment of a guardian pursuant to 41-3-607;
(d)long-term custody when the child is in a planned permanent living arrangement pursuant to 41-3-445;
(e)appointment of a guardian pursuant to 41-3-444; or
(f)dismissal.
(5)The court may continue an order for temporary legal custody pending a hearing on a petition provided for in subsection (2).
(6)If an extension of temporary legal custody is granted to the department, the court shall state the reasons why the child was not returned home and the conditions upon which the child may be returned home and shall specifically find that an extension is in the child’s best interests.
(7)If the time limitations of this section are not met, the court shall review the reasons for the failure and order an appropriate remedy that considers the best interests of the child.
(8)In implementing the policy of this section, the child’s health and safety are of paramount concern.
(9)A petition requesting temporary legal custody must be served as provided in 41-3-422.