WHO ARE THE PARTIES IN A GRANDPARENT VISITATION CASE?

January 23, 2012 § 3 Comments

Who gets to participate in a grandparent visitation case?

MCA § 93-16-5 states:

“All persons required to be made parties in child custody proceedings or proceedings for the termination of parental rights shall be made parties to any proceeding in which a grandparent of a minor child or children seeks to obtain visitation rights with such minor child or children … ” [Emphasis added]

MCA § 93-15-107(1), dealing with termination of parental rights, states:

“In an action to terminate parental rights, the mother of the child, the legal father of the child, and the putative father of the child, when known, shall be parties defendant.”

MCA § 93-11-65 allows for a custody action against any resident or non-resident, whether or not having actual custody. MCA § 93-27-205(1) provides that in child custody proceedings between states, any person having actual custody must be joined.

From the statutes, then, the plaintiff is required to join the natural mother, the legal father, and the putative father, when known, and any person having actual custody. The requirement of joinder is not subject to the trial court’s discretion, but rather is mandated through the statute’s use of the word shall. Since the statute is in derogation of common law, it must be strictly construed.

Don’t make the mistake of filing your suit against the custodial parent alone. You might just make a wasted trip to the court house.

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