Montana Supreme Court Clarifies Curative Effect of Post-Hearing Findings on Premature Ex Parte Third-Party Parenting Orders
A Commentary on In re Parenting of D.C.S., 2025 MT 179 (DA 24-0547)

1. Introduction

In In re Parenting of D.C.S., the Montana Supreme Court confronted a scenario increasingly common in modern custody disputes: grandparents (or other third parties) seeking urgent protective orders while a child’s natural parent contests both their standing and the allegations of parental misconduct. The case arose after David and Janice Scott took over day-to-day care of their grand-child, D.C.S., citing the mother’s alleged substance abuse and instability. When the Scotts obtained an ex parte emergency interim parenting order before any judicial finding that they held a statutory “parental interest,” the mother, Rebeccah Grove, challenged the procedure all the way to the Supreme Court.

The appeal placed two central issues before the Court:

1. Whether the district court’s final parenting order must be vacated because the earlier temporary ex parte order was entered without first adjudicating the Scotts’ statutory standing under § 40-4-228, MCA;
2. Whether the Supreme Court should invoke its extraordinary “plain-error” power to review (and potentially overturn) the district court’s denial of the mother’s post-judgment motions for relief and a new hearing.

Justice Katherine Bidegaray, writing for a unanimous Court, affirmed the district court, setting out a precedent squarely addressing how initial procedural missteps may be “cured” by subsequent, fully-adjudicated findings and conclusions.

2. Summary of the Judgment

The Supreme Court held that:

• Although the district court granted an ex parte emergency third-party parenting order before formally finding that the Scotts met the requirements of § 40-4-228(2), MCA, that procedural defect was rendered moot and harmless once the court (i) promptly held an evidentiary hearing and (ii) issued detailed findings that did satisfy the statute.
• Constitutional claims (substantive due process and equal protection) were likewise neutralized by the protective procedures afforded at the evidentiary hearing.
• Because the mother failed to demonstrate a manifest miscarriage of justice, the Court declined to exercise “plain-error” review over the district court’s denial of her Rule 59/60-type motions.
• The final amended parenting plan—placing primary parenting with the Scotts and limited parenting time with the mother—therefore stands.

3. Analysis

3.1 Precedents Cited and Their Influence

Sayler v. Yan Sun, 2023 MT 175. The Court’s most recent pronouncement on third-party standing. In Sayler, a final parenting plan was reversed because no adjudication of parental interest ever occurred. The Court distinguished the present case: here, the district court did make those findings before issuing the final order, thereby curing the earlier deficiency.

In re L.F.A., 2009 MT 363 & Kulstad v. Maniaci, 2009 MT 326. Both decisions underscored that a non-parent must establish a qualifying “child-parent relationship” to obtain standing. These cases supplied the doctrinal backbone for requiring findings under § 40-4-228.

Edelen v. Bonamarte, 2007 MT 138. Affirmed that imperfectly drafted findings are not fatal so long as the reasoning is discernible for appellate review—an observation the Court re-invoked to note that, even though the district court forgot to state one statutory element, its factual findings clearly satisfied it.

State v. Favel (2015) & State v. George (2020). Criminal cases defining the strict threshold for “plain-error” review, imported here to civil parenting proceedings to deny extraordinary appellate intervention.

In re A.J.C. (2018) & Article II, § 17, Mont. Const. Reiterated a parent’s fundamental liberty interest, framing—but ultimately not dictating—the Court’s proportionality analysis between parental rights and child safety.

3.2 The Court’s Legal Reasoning

1. Emergency Jurisdiction & Ex Parte Relief. Under § 40-4-211(1)(c)(iii), MCA, a district court may issue emergency orders when a child is “subjected to or threatened with mistreatment.” The Scotts’ affidavits alleged immediate danger: unsupervised child, substance abuse, deprivation of food. The Court held that these averments created a prima facie basis for emergency relief even though formal standing had not yet been adjudicated.
2. Post-Hearing Cure Principle. The dispositive analytical step: a procedural error in issuing a temporary order does not, ipso facto, taint the final judgment if (a) a prompt, contested hearing is held; (b) statutory elements are actually proven by clear and convincing evidence; and (c) the parent receives full due-process safeguards. This “cure” distinguishes Sayler, where no such hearing ever occurred.
3. Mootness Doctrine. Because the final order rested on independent, valid findings, any argument about the provisional order became non-justiciable—no effective relief could be provided by vacating a now-expired interim directive.
4. Plain-Error Review Denied. Even though parental rights are fundamental, the mother failed to show that the alleged factual errors rose to the level of a “manifest miscarriage of justice.” The Court stressed the district court’s superior vantage point for assessing credibility.

3.3 Potential Impact of the Judgment

• Guidance for Trial Courts. The decision authorises, but cautiously, the issuance of ex parte third-party emergency orders without a contemporaneous standing finding—provided courts swiftly hold evidentiary hearings and enter formal findings satisfying § 40-4-228(2), MCA.
• Clarifies Obligatory Findings. The Court flagged, in footnote 6, that both prongs—(a) natural parent’s conduct contrary to the child-parent relationship, and (b) existence of a child-parent relationship with the non-parent—must be found explicitly. Expect district courts to draft more meticulous orders.
• Elevated Standard for Appellate Intervention. By refusing plain-error review, the Court signals that parenting appeals will seldom succeed absent preserved objections and demonstrable prejudice.
• Practical Effect on Custody Litigation. Third-party caretakers (grandparents, stepparents, de facto parents) gain a clearer emergency pathway, while natural parents receive a roadmap for contesting such orders: attack the final findings, not merely the interim process.

4. Complex Concepts Simplified

• Ex Parte Order: A court order issued without notifying—or getting input from—the opposing party, used in emergencies to prevent imminent harm.
• Child-Parent Relationship (§ 40-4-211): A statutory definition requiring proof of day-to-day caregiving and psychological bonding akin to that of a parent.
• Parental Interest (Third-Party Standing): Legal authority for someone who is not a biological parent to request parenting rights. Must meet the two-prong test of conduct contrary to the child-parent relationship and existence of a child-parent relationship.
• Clear and Convincing Evidence: A medium-high burden of proof—more than a preponderance, less than beyond a reasonable doubt—requiring that facts be “highly probable.”
• Mootness: A doctrine barring courts from deciding issues that no longer affect the parties’ legal rights.
• Plain-Error Review: An appellate safety-valve reserved for errors so egregious that they undermine the integrity of the proceeding, even if the issue was not preserved below. Applied sparingly in Montana.

5. Conclusion

In re Parenting of D.C.S. stands for the proposition that procedural infirmities in the issuance of temporary, emergency third-party parenting orders do not automatically unravel later, properly adjudicated final orders. The Montana Supreme Court balanced two imperatives: protecting a child from immediate harm and safeguarding a parent’s fundamental liberty interest. By ruling that a swift, comprehensive evidentiary hearing can cure earlier defects, the Court provides practical guidance to trial judges and litigants alike, harmonising child safety with constitutional due process. Future third-party parenting disputes will undoubtedly cite this case whenever interim relief is sought under pressing circumstances, and district courts will be vigilant in both issuing prompt protective orders and assembling the requisite statutory findings without delay.