CUSTODY OF B T S
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No. 85-21 I N THE SUPREME COURT OF THE STATE OF MONTANA 1985 I N RE THE CUSTODY AND SUPPORT OF B . T . S . APPEAL FROM: D i s t r i c t C o u r t of t h e T w e l f t h J u d i c i a l D i s t r i c t , I n a n d f o r t h e C o u n t y of H i l l , T h e H o n o r a b l e C h a n E t t i e n , Judge p r e s i d i n g . COUNSEL OF RECORD: For Appellant: K a t h l e e n R i c h a r d s o n argued, H a v r e , Montana F o r Respondent: H a s h , J e l l i s o n , O ' B r i ~ n& B a r t l e t t ; argued, K a l i s p e l l , Montana Submitted: Decided: Filed: ; ! h ~ - 1935 & I James C. B a r t l e t t June 27, 1 9 8 5 January 9 , 1 9 8 6 Mr. Justice L. C. Gul-brandson delivered the Opinion of the Court. D.A., the mother, appeals from a judgment of the District Court of the Twelfth Judicial District, Hill County, awarding joint custody of B.T.S. to K.S., the father, and herself and making her award of one-half the prenatal care costs payable in installments beginning in January 1987 with no interest due until then. Reversed for findings. The mother and father were divorced on August 7, 1981. They were not aware that the mother was pregnant at the time of the dissolution. When their son, B.T.S., was born two months premature on December 17, 1981, the mother selected her maiden name as his surname. Both parents resided at Swan Lake, Montana at the time of the birth but the three of them never resided together as a family unit. after his Following B.T.S.'s twelve-day hospitalization birth, the mother provided his primary care. Because he was premature and underweight, he slept on a breathing monitor device and had to be awakened every three hours to be fed. K.S. visited B.T.S. in the hospital two or three times. When the child went home, K.S. visited twice a week at first. Later, the meetings dwindled to once a week because he and the mother could not get along. teaching job when B.T.S. D.A. returned to her was about three weeks old. She asked K.S. to assist with the night feedings and he agreed to stay two nights a week. He did not return after one week. His only other contact with the child during the first nine months occurred when he occasionally babysat. D.A. remarried in December 1982. farm during the summer months. She and her husband In the winter they live in Whitefish where he works in a local business. The father moved to Phoenix, Arizona to attend school in October 1982 when B.T.S. was about nine months old. He did not contact the mother until he returned to Swan Lake for Christmas. At that time, B.T.S. stayed with him for one week at the paternal grandparents' home where B.T.S. was familiar and comfortable. After he went back to Phoenix he did not contact the mother again until April when he wanted arrange a visit in July, 1983. the visitation arrangements. his father spend one to The parents disagreed over The mother suggested B.T.S. and week getting reacquainted through daytime visits with overnight visits the second week. father wanted to take B.T.S. The with him to Helena the first week, while he worked for relatives, and spend another week with him at the paternal grandparents' home. to Helena alone. B.T.S. When he returned, he spent one day with at the maternal grandparents' home. brought B.T.S. The father went The mother then to the paternal grandparents' home where he was familiar and he spent four days with his father. After this visit, the parents did not communicate except to arrange a one week visit over Christmas in 1983. On July 19, 1983, the father petitioned the court for joint custody of B. T. S. and requested physical custody, claiming the mother refused to allow frequent and continuous contact between the child and himself. B.T.S.'s He also requested surname be changed to his own and a determination of child support. The cause was heard on April 24, 1984. trial, Lawrence G. Jarvis, Ph.D., specializing in young child At a clinical psychologist development and family relationships, opinions: testified. He (1) a child B.T.S.'s expressed the following age would suffer anxiety and have difficulty adjusting to an abrupt change in environment; (2) the mother and stepfather (3) B.T.S. relationships with B.T.S.; development, motor had skills and warm and loving was doing well in his language; (4) B.T.S. is "bonded" to his mother; (5) custody should remain with the mother because extended periods of separation (i.e. overnight) would cause anxiety in a two-year old; (6) the father should re-enter the scene gradually to establish a long term, ongoing relationship; and (7) over a period of time, they could move into more extended visits "in line with the father ' s needs. " The District Court entered findings, conclusions and order on October 30, 1984. its The court determined that "nothing prec3-udes the awardj-ng of joint custody;" joint custody is in B.T.S.'s both parents non-custodial are likely parent; B.T.S. to best interests; all-ow contact should carry with his the father's surname; one-half the prenatal costs should be paid by the father in $100 monthly installments beginning January 1987 with interest charged from January 1987; and the should pay child support of $100 per month. father The court's order also set out the arrangement for physical custody. stays with his mother fror August 20 to June 10, and B.T.S. with his father from June 11 to August 19. The non-custodial parent is to have other reasonable visitation and the parents are to alternate the major holidays. The mother does not dispute the name change or the award of child support on appeal. We address three issues: (1) Did the District Court err by awarding custody of jointly to his mother and father? B.T.S. (2) Did the District Court err in the manner in which physical custody was divided between the mother and father? (3) Did the District Court err by ordering reimbursement of the costs of the child's birth payable in installments which would not begin until January 20, 1987 and by not awarding interest from the date of judgment? We apply the following standard of review in custody issues: This Court will not substitute its judgment for that of the trier of fact. We will consider only whether substantial credible evidence supports the findings and conclusions. Findings will not be overturned unless there is a clear preponderance of evidence against them, recognizing that evidence may be weak or conflicting, yet still support the findings . Jensen v. Jensen (Mont. 1981), 629 P.2d 765, 768, 38 St.Rep. 927, 930, cited in In re the Custody of C.C. 695 P.2d 816, 818, 42 St.Rep. 190, 193. (Mont. 1985), The appellant must overcome the presumption that the judgment of the District Court is correct. In re the Marriage of Jensen (Mont. 1979), Sections 40-4-222 and -223, MCA require that an awa.rd of joint custody be in the best interests of the child. Relevant factors in any custody determination include: (1) the wishes of the child's parent or parents as to his custody; (2) the wishes of the child as to his custodian; (3) the interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child's best interest; (4) the child's adjustment to his home, school, and community; and (5) the mental and physical health of all individuals involved. Section 40-4-212, MCA. We agree with appellant's contention that additional specific criteria should be considered when determining joint custody. This Court recognized a commonly used specific factor in Schuman v. Bestrom (Mont. 19851, 693 P.2d St.Rep. 54, 57, when we stated joint custody will not be between parents willing custody matters.'' P.2d 187, 200. finding that to ". . . it 536, 539, 42 seems clear that satisfactory unless cooperate with Citing Lembach v. Cox it exists each other in (Utah 1981), 639 Other jurisicti.ons characterize this as a both parents are able to communicate and cooperate in promoting their child's best interests, Beck v. Beck (N.J. 1981), 432 A.2d 63, 72, and whether the parents have the ability to cooperate in their parental roles, Lumbra v. Lumbra (Vt. 1978), 394 A.2d 1139, 1142. v. Braiman {N.Y. 1978), 378 N.E.2d (Mich. 1981), 310 N.W.2d Custody of Children. 434; and This See also Braiman 1019; Wilcox v. Wilcox 17 ALR4th specific factor 1013, Joint relates to j subsection (1) of 5 40-4-212, MCA, the parents' wishes as to custody. In this case the respondent requested joint custody a.nd the appellant requested sole custody of B.T.S. the father's visitation. Both parties testified as to their inability to agree about B.T.S.'s welfare. felt she carried the entire burden. B.T.S. subject to The appellant She travelled with to other cities for visitation; she maintained the child's contacts with the paternal grandparents; a-nd she sent pictures to the family. The respondent did not write or telephone on any regular or consistent basis after he left Montana. become No evidence in the record indicates he attempted to involved in decisions about B.T.S.'s welfare. Contrary to respondent1 contention, S 40-4-212 (1), MCA is s not irrelevant and "always self-evident." Section 40-4-212(3), MCA includes the child's interaction and interrelationship with his parents and others who significantly affect the child's best interests as a relevant factor in the custody determination. District Court's only findings on R.T.S.'s Here, the relationships were that he and his step-father have developed a firm father-son relationship and that he has a good relationship with his grandparents. The District Court made no findings as to his interaction or interrelationship with either of his natural parents. "The District Court need not make specific findings on each of the elements. (Citations omitted.) 'essential and determining However, the facts upon which the District Court rested its conclusion' must be expressed." In Re Marriage of Hardy (Mont. 1984), 685 P.2d 372, 374, 41 St.Rep. 1566, 1569; citing, Cameron v. Cameron (1982), 197 Mont. 226, 231, 641 P.2d this, with a 1057, 1060. Particularly in a case such as post-divorce birth and an absent parent requesting joint custody, findings regarding the interaction and interrelationship of the child with each parent are necessary. A third specific criterion important to an award of joint custody, is the geographic proximity of the parents1 residences. In Quinn v. Quinn (Mont. 1981), 622 P.2d 230, 38 St.Rep. 93, this Court remanded an award of joint custody to determine whether the best interests of the minor children were being served since the geographic distance between the parties appeared to be fostering antagonism and instability in the home environment. The distance affects the parent's access to each other for joint decisions and the extent and type of interaction between each parent and the child. In. this case, the uncertainty of the father's residence also impinges on B.T.S.'s stability in his environment. The declared legislative intent for joint custody, as stated in ยง 40-4-222, MCA, is "to assure minor children . . . and frequent and continuing contact with both parents to encourage parents to share the rights and responsibilities of child rearing." and 4600.5 of This statement is based on sections 4600 California's Civil Code. Like Montana, California requires the courts to award custody according to the best interest Cal.Civ.Code, of the requires more child. than a However, 4600.5 (c), statement that joint custody is in the child's best interests. Whenever a request for joint custody is granted or denied, the court, upon the request of any party, shall state in its decision the reasons for granting or denvin~ the reauest. A statement that ioint physical custody is, or is not, in the best interests of the child shall not be sufficient to meet the requirements of (Em~hasis added. this subdivision. Changes enacted to Montana's joint custody provisions by the 49th Legislature, effective October 1, 1985, reflect the California requirement. Section 40-4-224(1), MCA, now provides: Upon application of either parent or both parents for joint custody, the court shall presume joint cutody is in the best interests of a minor child unless the court finds, under the factors set forth in 40-4-212, that joint custody is not in the best interests of the minor child. If the court declines to enter an order awarding joint custody, the court shall state in its decision the reasons for denial of an award of joint custody. Objection to joint custody by a parent seeking sole custody is not a sufficient basis for a finding that joint custody is not in the best interests of a child, nor is a finding that the parents are hostile to each other. ". . . Section 40-4-223 ( 3 ) , MCA, now provides: shall state in its decision the considered in making the award." reasons the court and factors Reading these sections together, a district court must make findings and state conclusions based on those findings even where joint custody is awarded in accordance with the newly enacted presumption. Thus, the above discussion would apply under the recent changes as well as under the former statutory language. On remand, the District Court should consider and make findings on these useful specific factors along wit11 the general criteria in S 40-4-212, MCA, to determine whether joint custody is in B.T.S.'s best interests. The second issue concerns the District Court's order that physical custody of B.T.S. be with appellant from August 20 to June 10 and be with respondent from June 11 to August 19. Each parent has reasonable visitation with reasonable notice and alternates custody on major holidays. " [TIhe physical custody element of a joint custody award requires examination of practical considerations such as the financial status of the parents, the proximity of their respective homes, the demands of parental employment, and the age a-nd number of children." Beck, 432 A.2d at 72. The proximity of the parents' residences and the apparent uncertainty of the father's residence are of concern here. We recognize the uniqueness of these particular circumstances. born after the divorce. portion of B.T.S.'s B.T.S. was The father has spent the greater life in different states. B.T.S. has never experienced a family unit with his natural parents and has not had an opportunity to develop a father-son bond with respondent. Finally, the father has never been a decision maker for B.T.S. Under these circumstances, the order should contain findings to support the division physical custody. This alone would be sufficient ground for rema.nd. Jones v. Jones (Mont. 1980), 620 P.2d 850, 37 St.Rep. 1973. In addition, the evidence at trial supports a different division of physical custody. that abrupt At trial, Dr. Jarvis testified changes in B.T.S.'s environment would cause anxiety and would be a difficult adjustment for him. He expressed the opinion that extended periods of separation such as overnight visits would adversely affect B.T.S. and that the father should re-enter gradually to establish a long-term, ongoing relationship. He recognized that extended visits were "in line with the father's needs." expressed concern that forcing a child of The mother this age to experience extended visitation without "warm-up" time to the father would be detrimental to B.T.S. The psychologist testified that this was an appropriate concern with a. child this age. Even the father's testimony coincided with the opinions of the mother and Dr. Jarvis: At this point, I think one week at a time is about all that [B.T.S.] could take awa.y from his parents, or away from hi.s home. As he grows older, I think it should grow up [sic] to be close to a five week period. Probably by the time that he is in school, at seven or eight. Neither party offered any evidence to support the extended visitation awarded. On remand, particularly because of the unique circumstances of this case, the District Court shouldenter explicit findings on physical custody. These findings should reflect the District Court's consideration of the evidence presented at trial. This holding S 40-4-223(3), is MCA, consistent requiring a with newly court to revised "state in its decision the reasons and factors consid-ered in making the award. " New revisions in S 40-4-224 (2), MCA, also reflect the Legislature's concern with the division of time in an award of physical custody. For the purposes of this section, "joint custody" means an order awarding custody of the minor child to both parents and providing that the physical custody and residency of the child shall be allotted between the parents in such a way as to assure the child frequent and continuing contact with both parents. The allotment of time between parties shall be as equal as possible; however, each case shall be determined according to its own practicalities with the best interests of the child as the primary consideration. The according statement that to its own "each case shall be practicalities" allotment of time may be skewed. determined recognizes that The District Court should consider whether a division of physical custody allowing a gradual build-up of time for the father, consistent with the evidence presented at trial and consistent with the new revisions in the statutes on joint custody awards, would be appropriate if joint custody is awarded. The District Court awarded judgment to appellant for respondent's share of medical expenses incident to B.T.S.'s birth in the amount of $2,612. No interest was to be charged until repayment began at the rate of $100 per month beginning on January 20, 1987. The District Court acted within its discretion when it scheduled monthly installments. under S 27-1-211, MCA, appellant is entitled interest from the date of judgment. to However, recover Callihan v. Burlington Northern, Inc. (Mont. 1982), 654 P.2d 972, 39 St.Rep. 2158. Reversed opinion. for findings consistent with the above Mr. Justice Frank B. Morrison, Jr. dissents as follows: I believe the majority opinion in this case is but a further example of this Court's substituting its judgment for that of the trial court and/or the jury. The trial court is in the best position to observe the demeanor of the witnesses and thereby acquire a feel for their credibility and even their cha.racter, which no cold record can possibly convey. Only the trial judge is in a sound position to decide matters of custody. The majority opinion seeks to reverse the lower court's discretion by finding inadequacies in the court's findings. The majority's approach is unrealistic. Many trial judges in this state operate without the benefit of law clerks. volume of their work precludes making conceivable statutory guideline. The findings on every The majority's approach can most accurately be characterized as nit-picking. I would affirm the judgment of the District Court. J u s t i c e John C. Mr. Sheehy, d i s s e n t i n g : 1 2issent. The m a j o r i t y o p i n i o n w i l l f u r t h e r encumber t h e a l r e a 6 y beleaguered judges of t h e d i s t r i c t c o u r t s i n custody c a s e s , a n 2 u n n e c e s s a r i l y s o i n c a s e s where j o i n t c u s t o d y i s p r o p e r . The majority opinion requires findings by district judges of t h r e e a d d i t i o n a l c r i t e r i a t h a t a r e n o t found i n t h e stztute. The m a j o r i t y mandate t h a t i n j o i n t custody cases t h e C i s t r i c t C o u r t f i n d ( 1 ) t h a t t h e p a r e n t s have t h e a b i l i t y t o cooperate i n t h e i r parental r o l e s , (2) t h a t the chi12 has a n e s t a b l i s h e d r e l a t i o n s h i p w i t h b o t h p a r e n t s and sees them as a source of love and security, and (3) t h a t the court consieer t h e geographic proxinity of t h e parent" seesizences. it in Those criteria circumstance make of the impossible respondent for a here ever the mother no father to ability have the joint c u s t o d y of h i s minor c h i l d . As joint to the custody. H e r petition wish first to She d e m o n s t r a t e s requests t h a t achieve dec:lared in children h?.ve parents criterion, sole section after the 40-4-222, and parents n o t want to c~cperztc. she be given s o l e custody. custody "frequent does is contra to public Her policy, VCA o f t h i s s t a t e t h a t m i n o r continuing have contact separated with ... both and to enccurage p a r e n t s t o s h a r e t h e r i g h t s and r e s p o n s i b i l i t i e s o f child rearing i n order t o effectfi t h e State policy. 40-4-222, Section KCA. The impossible second for criterion this nierdated f a t h e r because by the majority t h e m o t h e r h a s made is it n e a r l y impossible f o r t h e f a t h e r t o have v i s i t a t i o n w i t h t h e c h i l d and t h e t r a n s c r i p t i n t h i s c a u s e i s a h i s t o r y o f t h e obstructiveness of the mother fn p r e v e n t i n y the i a t h e r fron getting to know his child. The father has been prevented by the mother from an established relationship with his child. For that reason the District Court found that "the parties have experienced great difficulty in arranging visitation between [ETS], petitioner efigendered by [father] respondent and [mother] most difficulty dictating terms of visitation." The third criterion, geographic proximity should not be considered a deterrent to joint custody, especially a s worked out by the court in this case. Under the statutes applicable, the District Court has no duty to make the findings for which the majority are now rernading this cause. when a parent Sectior, 40-4-224, MCA provides that requests joint custody, "the court shall presume joint custody - - - is in the best interests of a minor child unless the court finds, under the factors set forth in 40-4-212, that joint custody - -is - not in the best interests of - the - minor child. " Und-er section 40-4-224, KCA, the presumption of the law is that joint custody is in the best interests of the minor child. It is only when the District Court finds against joint custody that it must set forth the factors in section 40-4-212, which nrilit-ate against joint custody. opinion reverses the provisions of section The majority 40-4-224 and requires the I?istrict Court to make findings explaining the factors in section 40-4-212, even - -it has awarded joint when custody. It is for that reason that I asserted above that the majority is encumbering the district courts with duties not mandated by the statute, unnecessary to the exercise of their jurisdiction in joint custody cases and p a r t i c u l a r l y u n w i e l d l y i n c a s e s s u c h a s w e have f a c i n g u s a t b a r . The O i s t r i c t the Court testimony of Dr. Jarvis, t e s t i f i e d i n t h i s case, interviewing the ir! t h i s c a s e a p p a r e n t l y d i ~ r e g a r ~ e d t h e c l i n i c a l p s y c h c l o g i s t who and w i t h good r e a s o n . father, the witness Without e v e r purported to make f i n d i n g s w i t h r e s p e c t t o t h e i n t e r r e l a t i o n s h i p of t h e chil-l! t o t h e f a t h e r o n l y on t.he b a s i s o n what t h e m o t h e r had t o l d him. Morecver, t h e f i n d i n g s o f t h e D i s t r i c t C o u r t , b a s e d c n w e r e thzit t h e record, parent of capable afSection fcr " e a c h r e c o g n i z e s t h e o t h e r a s a good providing [BTS] ." more The than adequate testimony of care Jarvis and has no opinion is s i g n i f i c a n c e i n view o f t h a t f i n d i n g . Even its in best light, the majority f r u s t r a t i n g t h e p u b l i c p o l i c y of t h i s s t a t e . Separated o r divorced the parents public policy of continuing of PCA. allot-ment of children are under t h i s s t a t e t o he a s s u r e d o f contact" 40-4-222, minor It time with the is our minor declared " f r e q u e n t and children. Section f u r t h e r publ-ic p o l i c y t h a t between parties shall be as "the equal as p o s s i b l e ; however, e a c h c a s e s h a l l b e d e t e r m i n e d a c c o r d i n g t o i t s own p r a c t i c a l i t i e s w i t h t h e b e s t i n t e r e s t s o f t h e c h i l d 2 s a primary c o n s i d e r a t i o n . " S e c t i o n 40-4-224(2), MCF. Faving t h o s e p u b l i c p o l i c y c o n s i d e r a t i o n s i n nir,d, Court determined District tather was not that attending i n t h e summertime, school, he should is under our statutes ectitled to six parent arranged would further enjoy the for alternate custody of if the The D i s t r i c t holidays the custody The f a t h e r months, p r a c t i c a l i t i e s o f t h e c a s e would work i t o u t . Court when t h e have r i g h t s t o t h e c h i l d f o r t h r e e months o f t h e y e a r . the child. when each A more practical way t o handle t h e problem of c a n n o t b e ima.gined, y e t t h e m a j o r i t y , joint i n a c a s e where t h i s c h i l d i s f o u r y e a r s oil! a s o f Decenber 1 7 , having been d e p r i v e 2 o f h i s f a t h e r ' s during most of his life), remand custody here 1985 (the child company by t h e n o t h e r the cause for further f i n d i n g s on vagu.e and e l u s i v e c o n s i d e r a t . i o n s d e r i v e d from a n unwarranted d i s t i l l a t i o n o f j o i n t custody s t a t u t e s . I s a y i.t i s t i m e t o g i v e t h i s c h i l d a c h a n c e t o know h i s f a t h e r . I would a f f i r m t h e C i s t r i c t C o u r t . C' L ' ,,,3/2Jt*C y 7 Justice B ---- -- -
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