Montana Continuing Custody Affidavit — What Happens When the Parent Returns

The parent who dropped their child off with you eight months ago shows up unannounced and says they're taking the child home tonight. You've enrolled the child in school, set up medical care, and built a stable routine. Montana law gives you a way to pause this situation long enough to get into court.

The Continuing Custody Affidavit (MCA 40-6-602)

MCA 40-6-601 recognizes that children who have lived in stable extended care with a relative suffer real disruption when an absent parent returns without warning. The companion statute, MCA 40-6-602, provides a structured process for handling that moment.

If a parent voluntarily gave custody to a relative and the child remained with that relative for at least six months while it was unclear whether or when the parent would return, the relative may file the required affidavit without a filing fee in the District Court for the county where the relative lives when the parent returns and demands custody. A firm return date communicated during that six-month period and then followed defeats these statutory conditions. The relative may maintain temporary custody for five days after the parent's return and demand while the affidavit and court order are completed. During that period, a court may order the child returned after the parent's petition and a hearing if it finds the six-month condition is unmet, the relative committed abuse or neglect, or the affidavit was not filed in good faith. A relative who refuses to surrender custody in good faith and in compliance with the section is immune from civil or criminal action.

What Happens During the Five Days

Within 48 hours of filing, the court must review the affidavit ex parte to decide whether it provides prima facie evidence of abandonment. If it does, the court must enter findings and an order continuing custody within three business days of that determination; the order lasts 14 days. If it does not, the court must order the child returned to the parent within three business days. During or after the 14-day period, the relative may file a parenting-plan proceeding or petition for guardianship through the District Court.

This is not an automatic grant of custody to the relative. It is a procedural mechanism that prevents the worst-case scenario — a parent appearing at midnight and physically removing a child from a stable home with no court oversight. The relative still needs to pursue formal legal steps if they want to maintain custody long-term.

When This Applies and When It Doesn't

The continuing custody affidavit applies only when specific conditions are met. The parent must have voluntarily placed the child with the relative, the child must have remained there continuously for at least six months while the parent's return timing was unclear, and the parent must be demanding the child's return.

It does not apply if the parent never voluntarily placed the child — for example, if CFSD removed the child and placed them with the relative. It also does not help with situations shorter than six months. And it is a one-time procedural tool, not an ongoing custody arrangement.

Practical Steps If This Situation Arises

If the parent shows up demanding the child back and you meet the six-month threshold:

Stay calm and do not physically prevent the parent from leaving. Contact an attorney or the Montana Legal Services Association (1-800-666-6899) immediately. If it is after hours and you believe the child is in danger, call law enforcement.

Go to the District Court clerk's office and file the Continuing Custody Affidavit as soon as possible. Bring documentation of how long the child has lived with you — school enrollment records, medical visit records, utility bills showing the child's address, and anything that establishes the six-month continuous care period.

The Montana Kinship Navigator Program (1-833-445-3395) can also help you navigate the process and connect with legal resources in your county.

Beyond the Five-Day Window

The continuing custody affidavit buys time, but it does not resolve the underlying question. If you want to maintain custody, you will likely need to pursue formal guardianship under MCA Title 72, Chapter 5, Part 2. The District Court Self-Help Center (courts.mt.gov/selfhelp) has form packets for minor guardianship petitions, and caregivers can request fee waivers if they cannot afford the filing fee.

Our Montana School & Medical Consent guide covers the continuing custody affidavit alongside the other Montana consent instruments, so you understand when each tool applies and what to do when a temporary arrangement reaches a turning point.

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