by Wilton H. Strickland

It is a well-established principle of law that parents have fundamental and constitutional rights over their children that cannot be interfered with absent abuse, neglect, or formal surrender. In an alarming decision issued on September 9, 2025, the Montana Supreme Court affirmed a judgment granting a third party’s request to share custody of two children even though their mother — whose parental rights were still intact — objected. The decision hinges on a controversial statute that entitles “nonparents” to exercise parental rights in broad circumstances, namely whenever (1) “the natural parent has engaged in conduct that is contrary to the child-parent relationship”; (2) “the nonparent has established with the child a child-parent relationship”; and (3) “it is in the best interests of the child to continue that relationship.” Mont. Code Ann. § 40-4-228. This statute already has drawn at least one constitutional challenge to the U.S. Supreme Court. See In re L.M.A.R., 2024 MT 148, 417 Mont. 212, 552 P.3d 678, cert. denied, 145 S. Ct. 105 (2025).

The decision in question is Rehbein v. Paddock, 2025 MT 201, and it arises from some rather unusual facts and arguments. Rehbein is the natural mother and gave birth to the two children while in a same-sex marriage with Paddock, who filed for divorce on the stated basis that she did not want children but soon changed her mind and sought custody. From the beginning of the case all the way through trial, Paddock never mentioned Mont. Code Ann. § 40-4-228 or pleaded for custody on that basis. Instead, Paddock argued that she was entitled to a presumption of paternity (i.e., fatherhood) under Mont. Code Ann. § 40-6-105 because the children were born during the parties’ marriage. Even though it is physically impossible for Paddock to be a biological father as discussed in that statute, she relied on recent case law from other jurisdictions holding that principles of equal protection under the Fourteenth Amendment of the U.S. Constitution require applying paternity statutes to both men and women. The district court withheld ruling on that issue and conducted a trial on the assumption that Paddock indeed could share custody, so the parties submitted evidence and testimony about each other as well as the best interests of the children.

After trial, Rehbein filed a brief explaining that Paddock was not entitled to a presumption of paternity because she had not followed the necessary steps for bringing a constitutional challenge to Mont. Code Ann. § 40-6-105, whose history, language, and purpose show that it applies exclusively to biological men and fathers. Rehbein went the extra mile and explained that even if Paddock was entitled to a presumption of paternity, it had been rebutted with uncontested evidence of the identity of the natural fathers, as provided in the statute itself. Those fathers never made a formal surrender of their rights and could not simply be ignored. Finally, Rehbein emphasized that the paternity statute was the only basis for custody that Paddock had pleaded or argued, meaning that Paddock was barred from presenting alternative grounds by virtue of precedent from the Montana Supreme Court.

Paddock filed a short response brief that did not deny that she was relying solely on Mont. Code Ann. § 40-6-105, but rather merely noted that the district court was already aware of her arguments. However, she also filed proposed findings of fact and conclusions of law in which she raised for the first time ever the other statute (Mont. Code Ann. § 40-4-228) as an alternative basis for custody.

Rehbein filed a reply brief explaining that Paddock had waived her ability to seek custody as a nonparent under Mont. Code Ann. § 40-4-228, considering that she always had argued being a parent under the paternity statute at Mont. Code Ann. § 40-6-105. Going the extra mile once again, Rehbein argued that even if Paddock could now invoke Mont. Code Ann. § 40-4-228, it made no difference because she had failed satisfy the rigorous criteria for exercising rights under that statute.

The district court ruled in favor of Paddock and granted her custodial rights to Rehbein’s children. This ruling was not on the basis of Mont. Code Ann. § 40-6-105 (the only basis that Paddock ever had pleaded or argued), but rather on the basis of Mont. Code Ann. § 40-4-228 (which Paddock did not deny failing to plead or argue). According to the district court, Paddock’s pleadings could be amended after trial to fit the evidence per Mont. R. Civ. 15(b)(2), even though Paddock never had sought such relief. The district court accepted almost verbatim Paddock’s proposed findings of fact and conclusions of law to find that she had satisfied the demanding test under Mont. Code Ann. § 40-4-228 while rejecting contrary evidence and arguments by Rehbein. So, Paddock prevailed on a complex legal argument that she never had made and never had added to her pleadings (and that Rehbein had addressed and refuted in her final brief).

This outcome was unsettling because on multiple occasions the Montana Supreme Court has urged caution when amending pleadings after trial in parenting matters and when granting parental rights to nonparents under Mont. Code Ann. § 40-4-228. See, e.g., In re Custody of C.S.F., 232 Mont. 204, 209, 755 P.2d 578, 582 (1988); In re Custody of C.J.K., 258 Mont. 525, 526-28, 855 P.2d 90, 90-92 (1993); Sayler v. Yan Sun, 2023 MT 175, ¶¶ 49, 53, 413 Mont. 303, 536 P.3d 399. The district court had abandoned any such caution, so Rehbein had good grounds for an appeal to the Montana Supreme Court, which she promptly filed.

In response to the appeal and Rehbein’s initial appellate brief, Paddock filed an opposition and cross-appeal. She argued that Rehbein tacitly had agreed to make Mont. Code Ann. § 40-4-228 part of the case by presenting evidence that was relevant to it and by mentioning it in a pretrial brief as something Paddock might attempt to rely on (even though Paddock never did). Paddock also resurrected her request to be treated as a parent under the paternity statute and requested a reversal of the district court’s refusal to grant relief under that theory (the only one she ever had pleaded).

Rehbein filed a reply brief emphasizing again the Montana Supreme Court’s precedent demanding caution when amending pleadings in parenting matters and when granting rights to nonparents. Rehbein also reminded the Court that Paddock had not bothered to present a proper equal-protection challenge to the paternity statute, something she must do to support her argument that the statute is unconstitutional in its current form. Finally, Rehbein reminded the court that an equal-protection challenge was unnecessary because even if Paddock was entitled to a presumption of paternity, the presumption had been rebutted with evidence identifying the natural fathers, meaning that Paddock already had been treated in the exact same manner that a married man would have.

The Montana Supreme Court affirmed the district court’s decision to grant rights to Paddock as a nonparent under Mont. Code Ann. § 40-4-228. This was even though she never had pleaded or argued that statute to the district court, and even though Rehbein had explained in detail why that statute could not apply and could not justify relief even if applicable. According to the Court, the mere fact that Rehbein had mentioned the statute in a pretrial brief and had introduced evidence that might be relevant under the statute made it applicable. In other words, the Court ruled that the burden was on Rehbein to keep Mont. Code Ann. § 40-4-228 out of the case, not on Paddock to introduce it into the case. The Court refused to apply its precedent requiring specific pleading and argumentation to preserve relief under Mont. Code Ann. § 40-4-228, asserting distinguishable facts. The Court also refused to second-guess how the district court had adopted Paddock’s proposed findings to satisfy the statute while ignoring contrary evidence and testimony by Rehbein.

Oddly, Justice McKinnon gave a concurring opinion that the paternity statute indeed applies to both men and women. According to Justice McKinnon, there is no need for a constitutional challenge to accomplish this because the word “person” appears at one point in the statute and (when read in a vacuum) makes the statute universally applicable. Paddock never made this point, which again did not dissuade the Court from making it for her. This point also ignores Rehbein’s arguments and authority to the contrary. As Rehbein explained in her briefing, both the title (referring to “paternity”) and the body (referring to “natural fathers”) of Mont. Code Ann. § 40-6-105 concern males, as also noted in the official Commentary to the statute (emphasis added): “In the situations described in subsection (a) [(1)], substantial evidence points to a particular man as being the father of the child and formal proceedings to establish paternity are not necessary.” Rehbein further explained that the Court itself has recognized that the unique goals of the statute pertain to males: “The significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring.” In re Paternity of Adam, 273 Mont. 351, 355, 903 P.2d 207, 210 (1995) (emphasis added). These arguments and authorities fell on deaf ears, as did Rehbein’s point that any presumption of paternity had been rebutted by the evidence of the fathers. In his own concurrence, Justice Swanson criticized Justice McKinnon for reading the paternity statute in such a distorted and ahistorical manner.

So, the nonparent who never pleaded or asserted custodial rights under the demanding test of Mont. Code Ann. § 40-4-228 prevailed, whereas the mother who went the extra mile at every turn to preserve her fundamental rights to her children lost. This outcome is both bizarre and disturbing. The courts are supposed to exercise caution in favor of parents and their established constitutional rights, but the courts on this occasion did the opposite and expressed greater concern for the purported rights of a nonparent.

This case should put all Montana parents on notice: your rights are subject to attack by third parties who purport to establish relationships with your children and portray themselves as better at parenting than you are. The U.S. Supreme Court will likely have to cast a critical eye on this statute sooner or later.

UPDATE

Shortly after I published my post, a former clerk for the district court judge in question contacted me on social media to criticize me. Without naming this individual, I will share our dialogue here because it sheds light on why courts sometimes make bad rulings:

1. You start with a generic recitation of the ultimate conclusion of Troxel v. Granville, but nowhere do you allege *how* this holding undermines or violates the holding of Troxel. It is an undisputed fact that birthmother was not fit. Troxel says that a *fit* parent must be given substantial deference in their decisions over the right to parent. The record seems to be replete with unchallenged evidence of unfitness by the birthmother. The Opinion is also clear that birthmother never challenged any of that other than to make objections as to hearsay that were overruled. I suspect the poor lawyering in this case went both ways.
2. The District Court and Supreme Court both do a very good job distinguishing all the cases you cite and say they “disregarded.” Sayler says that you need to do extremely specific findings of fact and conclusions of law, which happened here. It’s specifically addressed in the decision. In Re C.J.K. is pre-Troxel as well as easily distinguished when an argument was raised for the first time after the proponent had rested their case-in-chief. Here the “aggrieved” party had 7 months to prepare and try the issue. This is addressed specifically in the Opinion.
3. 40-4-211 and 40-4-228, MCA are Troxel-compliant. The only question is whether Rule 15(2) requires the amendment to the pleading when the parties tried an issue that was not properly raised in the pleadings. However, the failure to object here as being extrinsic to the issues being tried waives that under established Montana case law. You also repeatedly claim 40-4-228 is a “rigorous” test but they had 7 months to prepare and it’s actually a pretty simple one. There’s only two elements: (1) Is birthparent unfit to parent based on their conduct; and (2) does biological nonparent nonetheless have a parent-child relationship with the child as defined in Montana law, established by their actions to care for the child in the absence of a fit parent.

This is overall a very interesting case and I liked your article on it. I just think you’re not giving Justice Shea enough credit for the work he did answering these arguments. How Troxel applies to LGBTQ+ couples is certainly one of the more fascinating places that Family Law and Constitutional Law meet. The fact we’re almost 25 years to the anniversary of Troxel without a major follow-up case is also quite wild.

I was halfway out the door to run errands when I saw this comment, so I sat down and banged out a cordial response as quickly as I could:

Thanks, . . . , for taking the time to give your insights. I understand your desire to defend the soundness of the court’s decision, but I firmly believe that it’s a poor one for the reasons already stated in my article. As to your points:

1. The statute in question (40-4-228, MCA) allows for curtailing the rights of a parent even though he or she has not been declared unfit. That is rather unusual and something that the U.S. Supreme Court will likely have to review at some point. I have no personal view on whether the statute violates Troxel, but the statute (or its inconsistent application) certainly calls it into question. The natural mother here was never deemed unfit, and there was plenty of evidence showing that she indeed is fit (which was ignored by the district court when it practically copied and pasted the other side’s findings). It is flatly wrong to characterize the other side’s evidence as “uncontested.” It was contested every step of the way.
2. In Sayler, the court reversed a grant of parental rights to a nonparent in part because the “Surrogate did not properly ‘plead’ a § 40-4-228 nonparent parental rights claim as required by M. R. Civ. P. 7(a)(1)-(2), 8(a)(1), 12(a)(1), 13(a)(1), and 15(a)(1)-(2)).” Sayler at ¶¶ 49, 53. To assert that what happened in the present case – where the nonparent prevailed despite failing to plead or argue § 40-4-228 at all – is consistent with Sayler is somewhat heroic. If we are to inhabit a common-law system of jurisprudence where people in similar circumstances are to be treated in a similar manner, courts should make consistent decisions that honor stare decisis and enable citizens to plan their affairs. That didn’t happen here, and the result is chaos for Rehbein and for many other parents in the future. It was Paddock’s duty to plead and try § 40-4-228. She failed to do so and admitted failing to do so before the appeal, but the courts went ahead and did it for her. This shows a disturbing degree of recklessness toward Rehbein’s rights as a natural mother.
3. Again, you are placing the burden on Rehbein to keep § 40-4-228 out of the case when the burden was on Paddock to introduce it into the case (and she failed to do so). The mere fact that the parties discussed certain issues at trial that might be relevant to § 40-4-228 does not suffice to insert that statute into the pleadings after the fact (at least according to Sayler, which cites rule 15 when refusing to do this). And, to reiterate, Rehbein went the extra mile to address the merits of that statute as soon as it appeared on the radar after trial, something Paddock failed to do despite having ample opportunity. Regardless of Paddock’s complete lack of effort to amend her pleadings or make the corresponding arguments, the district court did it for her. By endorsing this, the Montana Supreme Court clearly has granted greater leeway for nonparents to interfere in the rights of parents, an unfortunate outcome that disregards prior case law encouraging caution with regard to parental rights, and which will surely give rise to future litigation.

I have no doubt that the Justices work hard and do what they honestly believe is the right thing in any given case. I do not question their character. What I do question is their judgment, something that all of us as citizens (or attorneys) should always do.

I thought this was the end of our conversation, but I was wrong because he launched into a heated rant:

Did you do work for one side on this or have a stake in it? Because I hate to break it to you, but if you don’t substantively contest evidence *that you were passed out shitfaced drunk with children you have a legal obligation to care for in your custody*, DPHHS can come take your kids and you’re going to lose any legal case you bring against the State. The DC and SC both consider that piece of evidence uncontested, which is why I’m curious whether you have some inside knowledge of the facts of the case. I’m not characterizing it that way for any reason other than that’s how the Courts have. There’s no requirement that natural mother be deemed unfit and terminated upon via a DN process in order to establish -228’s requirement that natural parent engaged in conduct that is contrary to the parent-child relationship. That’s why the evidence of being passed out drunk getting in without a substantive rebuttal is so damning. If you can’t keep it out on an evidentiary objection, of course that’s going to sink your case.

Otherwise your fundamental problem is just that you’re relitigating the same arguments from the briefing that are pretty well-addressed. You’re just completely wrong about what the DC’s Order said, which is the key point of divergence from Sayler. The DC Order had detailed findings of fact required by Sayler in it, showing that the Court was obviously aware of (and in compliance with) Sayler and the requirements of -228. I actually think this would have been much simpler if plead as a Constitutional Challenge to the Automatic Paternity Presumption statute as a 14th Amendment/Montana Constitution Violation and served it on the AG, but again, poor litigating by both sides. -228 existed in the case because both sides brought it up and both sides tried the case to that issue, including evidence that only was relevant to -228. It’s just a fundamental part of trial practice that you can amend the pleading up and through the end of the case if justice requires; I’ve been on the Defense side enough and felt like the Courts in Montana gave the Plaintiffs a lot of leeway on amending but there’s also good case law on this that they have to follow. Nobody was surprised here, despite the obvious benefit that one side has to continue claiming that 7 months to prepare a rebuttal after you get to see your opponent’s case-in-chief was “surprise.” That argument hasn’t worked on any of the 5 Justices who heard the case, nor was it obviously persuasive to the Trial Court, who is in the best position to make these judgments about the parties.

I think the only way to prevent repeat instances of what happened here is either: (a) SCOTUS takes up a new test case on parental rights for lesbian couples that expands or clarifies Troxel or (b) we create some statutory regime for LGTBQ+ parents here in Montana that clarifies who is a “parent” and when, and let the Fed Courts sort it out if someone sues. Because the fundamental constitutional case that will come down the pipe very soon is related to the trend of gay partners deciding to have “gestational twins,” one with the DNA of each father. I don’t think the Montana Courts really want to keep applying these third-party parenting statutes to married gay/lesbian couples, but our law has not kept up with medicine and culture.

Here is where I politely ended the conversation because he was taking things personally and conducting himself in a belligerent and unprofessional manner. Such conduct by a former clerk is its own cause for concern, but the substance of his comments also shows an inability or a reluctance to engage in objective legal analysis.

For one, he asserts that the relevant facts are “uncontested” simply because the courts’ opinions say so, thereby acting as if the mountain of contrary evidence presented by Rehbein at trial and cited in her appellate briefing does not exist. This is quite a circular argument – the court is right because the court says it is right. Such an attitude displays a stunning level of elitism and disregard for the truth. A lot of people took the time to appear and testify in favor of Rehbein. According to him, however, they might as well have stayed home because the subsequent rulings state that their testimony never happened or doesn’t matter. It’s offensive. We might as well stop criticizing courts at all according to his outlook, since they are always irreproachable and perfect.

For another, even if the specific allegations regarding drunkenness were uncontested (and they were very much contested), they concern only the first prong of the test under Mont. Code Ann. § 40-4-228 (“the natural parent has engaged in conduct that is contrary to the child-parent relationship”). That leaves two other prongs that Paddock needed to prove with clear and convincing evidence but failed to for reasons set forth in Rehbein’s briefs during trial and on appeal (“the nonparent has established with the child a child-parent relationship,” and “it is in the best interests of the child to continue that relationship.”). According to him, however, alleged drunkenness alone is sufficient to strip a mother of her constitutional rights to her children and grant custody to a third party. This isn’t possible even under the statute that he champions.

For another, the constitutionality of the statute remains very open to question. Even though the Montana Supreme Court has blessed it – which might be good enough for him – it broadens the scope of potential interference in parental rights that are guaranteed by the U.S. Constitution and can be challenged before the U.S. Supreme Court. Indeed, the constitutionality of this statute (which was enacted in 1999) is far more questionable than the constitutionality of the paternity statute, which has a long and well-established pedigree. On top of all this, the glaring inconsistency in how this statute was applied in Sayler versus the present case triggers constitutional concerns even if the statute is otherwise valid. 

For another, the district court’s order does not comply with Sayler but blatantly defies it by amending the pleadings despite the absence of a request, an argument, or the parties’ joint consent. It is not standard practice for a court to unilaterally amend the pleadings for the benefit of a party who never sought to do so before or during trial, and then to rule in favor of that party on a complex legal argument that the party never even bothered to make and that was already refuted by the other party. This is extraordinary behavior that undermines due process of law, as held in numerous prior decisions that the courts and this former clerk have chosen to ignore. As for the “detailed findings” in the order, they again ignore the considerable evidence presented by Rehbein and should not be treated as irreproachable simply because the court adopted them.

Finally, as for “the constitutional case that will come down the pipe [sic],” I hope that such a case addresses and reinforces the established rights of natural parents, which were treated very poorly in the present matter.  

In conclusion, the foregoing dialogue goes a long way toward explaining why courts sometimes make bad rulings. Judges and their clerks are only human and thereby subject to the same passions, prejudices, and errors that we all are. I am perfectly willing to admit that my own analysis could be wrong, but I have not yet seen a good argument explaining why it is.