In re The Marriage of Plaisted-Harman – 2009 MT 169
Amber and Thomas were divorced in 2008 and agreed to a joint parenting plan under which Amber was the primary custodian of the children, and Thomas had visitation on alternate weekends, and during the summer and holidays. Both parents were living in Miles City, Montana at the time of the divorce and the implementation of the parenting plan, but subsequently Amber decided to move to Kalispell, Montana. Thomas filed a petition to modify the parenting plan to award him primary custody of the children, which the District Court approved ruling that because Amber decided to move to Kalispell, she should be the one who pays the price of reduced parental contact.
SCOMONT ruled, for the first time, “that the right to travel guaranteed by the United States Constitution includes the right to travel within Montana.” Plaisted-Harman, ¶ 11. It is a fundamental right, and as such a restriction that penalizes persons who exercise the right must be justified by a compelling state interest. Chief Justice McGrath stated “[t]he District Court may not penalize Amber for exercising her right to travel by removing her as the primary custodial parent of the children, and it was an abuse of discretion to do so.” Id., ¶ 12.
