specially concurring.
I concur with the Court’s conclusion that the grandparents do not have standing as persons “other than a parent” to petition for adoption under § 40-4-211(4)(b), MCA, since the children, although physically present with the grandparents when their mother died, were nonetheless in the “custody” of their surviving fathers.
In specially concurring, however, I note that respondent Jeff K. argued that § 40-4-22l(2)(e), MCA:
mirrors the previously existing law embodied in Section 40-4-211(4)(b) M.C.A., giving a non-parent similar standing in a non-death situation, “but only if [the child] is not in the physical custody of one of his parents.”
Jeff K.’s argument fails to recognize that there is a substantive distinction between §§ -211 and -221 with regard to the standing issue presented in this case. Section 40-4-221, MCA, provides that, upon the death of a parent granted custody of a child, custody passes to the surviving noncustodial parent unless one or more of the parties named in subsection (2) requests a custody hearing. Included in the list of persons who may request a custody hearing is “any other person if that person has actual physical control over the child [.]” Unlike § 40-4-211(4)(b), MCA, which focuses on physical “custody,” § 40-4-221(2)(e), MCA, focuses on physical “control.” Certainly the grandparents in this matter had physical control of the children. Accordingly, they would have standing to request a custody hearing under § -221. The ultimate decision as to an of award custody under § -221 would be controlled by our recent decision in In re A.R.A. (1996), [277 Mont. 66], 919 P.2d 388, 392.
CHIEF JUSTICE TURNAGE and JUSTICE NELSON join in the foregoing special concurrence.