Nonprecedential Affirmance: Applying Law-of-the-Case and Best-Interests Standards to Modify a Third-Party Parenting Plan in Montana

Introduction

In Parenting of L.M.A.R. & N.R.R. (DA 25-0305), the Supreme Court of Montana issued a memorandum opinion on November 12, 2025, affirming a District Court’s amendment of a parenting plan that maintained the children’s primary residence with their grandparents and limited the parents’ contact to supervised visitation. The matter comes in the context of a long-running family case: after the children were removed from their parents in 2018 due to safety and neglect concerns, the grandparents were appointed guardians (2019), later granted a third-party parental interest, and, after the parents sought to terminate the guardianship in 2022, the Supreme Court affirmed the grandparents’ third-party parental status in 2024.

In early 2025, the grandparents moved to suspend visitation and seek an amended plan based on therapists’ safety concerns and the parents’ cessation of counseling. Following testimony from both children’s therapists and an in-chambers interview of one child (N.R.R.), the District Court amended the plan to supervised visitation and related conditions. The self-represented parents appealed, raising seven issues including due process objections, challenges to the third-party parental interest, appellate procedure requests (supplementing the record, en banc review, reassignment of justices), and the merits of the parenting plan modification. The Supreme Court affirmed.

Importantly, this is a noncitable memorandum opinion under the Montana Supreme Court Internal Operating Rules, Section I, Paragraph 3(c). It does not establish new precedent; rather, it applies settled law to the facts of the case.

Summary of the Opinion

The Court affirmed the District Court’s Second Amended Parenting Plan, which:

Continues the grandparents as the children’s primary residential caregivers.
Limits the parents to supervised visitation every other weekend and mid-week, as feasible with the supervisor.
Permits daily phone/video contact if the children wish to participate.
Declines to reappoint a GAL due to a deteriorated relationship with the parents, but allows the parents to seek amendment if the visit supervisor later recommends unsupervised time and the grandparents disagree.

On appeal:

Issues attacking the original grant of third-party parental interest and related reliance on sealed records or the GAL (Issues 1–3) were rejected under the doctrine of law of the case, given the 2024 affirmance.
Due process and separation-of-powers arguments (Issue 4 and related claims) failed for lack of supporting authority and because the court is not required to issue findings on each motion (M. R. Civ. P. 52).
Requests to supplement the record (Issue 5) and for en banc review/reassignment (Issue 6) were denied.
On the merits (Issue 7), the District Court did not abuse its discretion in finding a post-plan change in circumstances and in amending the plan in the children’s best interests, supported by therapists’ testimony and the in-chambers interview of N.R.R.
The Court declined the grandparents’ request to designate the parents as vexatious litigants under M. R. App. P. 19(5).

Analysis

Precedents Cited and Their Role

Law of the Case — State v. Wooster, 2001 MT 4, ¶ 12: Once an appellate court decides an issue between the same parties in the same case, that decision binds later stages of the same case. The Court invoked this doctrine to dispose of the parents’ first three issues because the Court had already affirmed the grandparents’ third-party parental interest in In re L.M.A.R. (2024 MT 148).
Parenting Plan Modification Standards — In re Marriage of Bessette, 2019 MT 35, ¶¶ 13, 16; §§ 40-4-212, -219, -220, MCA:
- Abuse of discretion review governs parenting plan decisions.
- Modification requires (1) a change in circumstances and (2) a best-interests analysis under § 40-4-212, MCA.
The Court relied on these settled standards to uphold the District Court’s findings of changed circumstances (parents ceased therapy; safety concerns escalated) and best interests (children’s psychological safety, stability, and preferences).
Broad Discretion of District Courts — In re F.L.F.L.K., 2025 MT 41, ¶ 11: Reiterates district courts’ broad discretion in formulating parenting plans. This underpins the deferential appellate posture.
Appellate Deference to Trial Court Fact-Finding — In re G.M.N., 2019 MT 18, ¶ 11; In re Z.N.-M., 2023 MT 202, ¶ 40: The Supreme Court does not reweigh evidence and recognizes the trial court’s superior position to evaluate testimony and best interests.
Requirement to Support Appellate Arguments — Estate of Harris v. Reilly, 2025 MT 126, ¶ 16; Penado v. Hunter, 2024 MT 216, ¶ 20: Unsupported arguments are not considered; the Court will not construct arguments for litigants. Applied to reject the parents’ due process and en banc/reassignment requests.
Procedural Rules:
- M. R. Civ. P. 52: Courts need not issue findings/conclusions on every motion unless a rule otherwise requires—used to reject a due process claim premised on nonresponses to filings.
- M. R. App. P. 19(5): Vexatious litigant designation—requested by grandparents and declined by the Court.
- § 41-3-205, MCA: Confidentiality of child protection records—parents argued reliance on sealed records; the Court said the order below did not rely on them.
Internal Operating Rules, Section I, ¶ 3(c): Authorizes memorandum opinions for cases controlled by settled law; such opinions are noncitable and nonprecedential. The Court explicitly used this path here.

Legal Reasoning

The Supreme Court’s analysis proceeds along well-settled lines, with focused attention on the procedural posture and standards of review:

Threshold procedural bars (Issues 1–3): law of the case. The parents attempted to relitigate the grant of a third-party parental interest and related arguments about sealed Department records and the GAL. Because the Supreme Court already affirmed that grant in 2024, those arguments were barred. This conserved judicial resources and kept the appeal focused on the new modification order.
Due process and motion-response complaints. The Court observed that trial courts are not obligated to issue findings/conclusions on every motion (M. R. Civ. P. 52), and the parents failed to present authority supporting a due process violation based on nonresponses. In addition, constitutional and separation-of-powers arguments were unnecessary to reach because the case could be resolved on nonconstitutional grounds.
Record supplementation; en banc; reassignment. The Court had already denied record supplementation and declined to revisit it; the parents cited no authority warranting en banc review or reassignment. The Court refused to construct such arguments for them.
Merits of modification:
- Change in circumstances (§ 40-4-219(1), MCA): The parents stopped participating in required therapy; therapists reported heightened safety and psychological concerns; the father’s in-person appearance in violation of the no-contact order distressed N.R.R. These post-plan developments supported a threshold finding of change.
- Best interests (§ 40-4-212, MCA): The District Court made specific findings about the children’s mental health (PTSD and generalized anxiety), their stability and adjustment with the grandparents, the children’s preferences (especially N.R.R.’s expressed fear and desire for supervised contact), and the parents’ failure to alleviate safety concerns. The therapists’ testimony and the in-chambers interview corroborated concerns. The Court emphasized that therapists serve their clients (the children) and need not be “neutral,” rejecting the parents’ insinuations.
- No improper reliance on sealed records: The appellate record and order did not reference or rely on sealed DPHHS records. A letter stating a later report was unsubstantiated did not negate the courts’ independent best-interests analysis based on therapy disclosures and observations.
- Relief tailored to safety and stability: The plan maintains primary residence with the grandparents, restricts visitation to supervised settings, and allows for increased time if a professional supervisor later recommends it—an incremental, safety-forward approach aligned with the children’s therapeutic needs.
Vexatious litigant designation. Though the grandparents requested it, the Court declined to impose the designation at this time.

Impact

As a memorandum opinion, this decision does not create binding precedent. Nonetheless, it offers practical guidance for family law practitioners and trial courts:

Enforcing therapeutic conditions matters. Failure to comply with court-ordered counseling or to address ongoing safety concerns can constitute a “change in circumstances” warranting modification from unsupervised to supervised contact.
Psychological safety is paramount. Even where there are no current “physical safety” findings, credible evidence of anxiety, PTSD triggers, and child fear—especially when corroborated by therapists and an in-chambers interview—can justify restricting parenting time to supervised settings.
Children’s voices. Age-appropriate consideration of a child’s preference, particularly where the child articulates specific fears and safety concerns, will carry substantial weight in best-interests determinations.
Professional roles are respected. The Court clarified that therapists are not obligated to be neutral witnesses; they serve their clients (here, the children), and raising safety concerns consistent with their clinical role is appropriate and probative.
Procedural economy. The Court will apply law-of-the-case to foreclose relitigation of decided issues, decline to entertain unsupported arguments, and avoid constitutional questions when unnecessary—reinforcing efficient appellate practice.
Supervision as a calibrated remedy. The plan’s structure demonstrates a calibrated approach: maintaining stability while preserving parent-child contact in supervised environments, with a defined pathway to expand time if safety improves and a supervisor recommends it.
GAL management. Where the GAL-parent relationship deteriorates, courts may forgo reappointment, relying instead on other professional inputs (therapists, visit supervisors) to manage risk and structure contact.

Complex Concepts Simplified

Third-Party Parental Interest: A legal status granted to nonparents who have formed a parent-like relationship with a child, allowing courts to allocate parenting rights and responsibilities based on the child’s best interests. Here, the grandparents hold this status, affirmed by the Supreme Court in 2024.
Law of the Case: Once an appellate court decides an issue in a case, that decision binds later stages of the same case between the same parties. Parties cannot relitigate the same issue in a subsequent appeal in the same matter.
Change in Circumstances (Modification Threshold): To modify a parenting plan, there must be material changes since the prior order, or facts previously unknown to the court, followed by a best-interests analysis.
Best Interests of the Child: The lodestar of Montana custody law (§ 40-4-212, MCA). Courts weigh factors like the child’s health and safety (including psychological safety), relationships, adjustment to home/school/community, and, as appropriate, the child’s wishes.
Abuse of Discretion/Clearly Erroneous: Appellate courts defer to trial courts on fact-finding. A decision is reversed only if based on clearly erroneous facts, legal error, or unreasonable judgment.
In-Chambers Interview: A judge may interview a child privately, often to gauge preferences and safety concerns, balancing candor, privacy, and potential agitation.
M. R. Civ. P. 52: Trial courts need not issue detailed findings on every motion unless a rule requires them; lack of a written response is not, by itself, a due process violation.
Sealed DPHHS Records (§ 41-3-205, MCA): Confidential child protection records. Alleging reliance on such records requires showing the court actually used them. The Supreme Court found no such reliance here.
Memorandum Opinion (IOR § I, ¶ 3(c)): A noncitable, nonprecedential decision used when the case is controlled by settled law or clear application of standards of review.

Key Details from the Record

Both children have been in grandparents’ care since 2018; grandparents appointed guardians (2019) and granted third-party parental interest (affirmed in 2024).
Parents’ participation in required therapy lapsed; therapists reported worsening fears and PTSD/anxiety symptoms when unsupervised weekends resumed.
N.R.R. described fear of physical escalation, distrust, and “bribing with nice things after they do something abusive,” and felt safer with grandparents; she asked her therapist not to share session content with her mother out of fear.
Father’s appearance at the courthouse, in violation of no-contact parameters, distressed the child on the day of the in-chambers interview.
Both therapists observed the children were calmer after visitation was suspended pending the hearing.

Practical Takeaways for Litigants and Practitioners

When prior orders condition parenting time on therapy or safety benchmarks, noncompliance can justify a shift from unsupervised to supervised contact.
Therapists’ observations linking parenting time to symptomatic regression (e.g., dissociation, anxiety behaviors) carry significant weight in best-interests assessments.
Do not assume therapists must be “neutral” witnesses; their duty is to the child-client. Courts may credit their safety recommendations without appointing a new GAL.
Children’s specific, credible safety fears (even absent current physical harm findings) support restrictions where mental/psychological safety is at stake.
Repeated efforts to relitigate already-decided issues will be foreclosed; unsupported appellate claims will be disregarded.
Supervised visitation can be structured as a step toward expansion if safety improves and professionals support change, aligning with therapeutic progress.

Conclusion

This nonprecedential memorandum opinion reaffirms core Montana principles governing parenting plan modifications: deference to trial courts; the necessity of a post-order change in circumstances; and a child-centered, best-interests analysis that prioritizes psychological safety and stability. The Supreme Court declined to re-open settled issues, rejected unsupported due process and procedural claims, and upheld a careful, safety-first modification that preserved parent-child contact under supervision while maintaining the children’s stable placement with their grandparents. While not citable as precedent, the decision delineates sound practice: comply with therapeutic conditions, respect no-contact parameters, credit clinicians’ safety concerns, and tailor parenting time to the child’s demonstrated needs—with clear avenues to expand contact if and when safety allows.

Note: This commentary is an analytical summary and does not constitute legal advice.