dissenting.
¶28 I respectfully dissent from the Court’s opinion which, in my view, sweeps with far too broad a broom. While I agree entirely with the *360Court’s concerns about a natural parent’s fundamental right to parent the child, I would reverse the District Court’s order dismissing the Knopps’ petition and remand for further proceedings on whether the Knopps are entitled to the parenting plan for which they petitioned.
¶29 In this regard, I begin from the premise that the question before us is essentially one of standing, rather than-as the Court puts it-one to resolve the Knopps’ ultimate entitlement to the parenting plan. As the Court states, Tammy Lynn argued in the District Court-and argues again in this Court-that parental rights can only be terminated pursuant to Title 41; she also “argued that as a matter of law, Knopps were not proper parties to a parenting plan prior to termination of her parental rights.” These are “standing” arguments, pure and simple. Indeed, the issues as stated in Tammy Lynn’s brief on appeal are whether the Knopps “as non-parents have standing in a child custody proceeding to seek a parenting plan ...” and whether the trial court erred in dismissing their petition “when the [Knopps] did not have standing....” (Emphasis added.) I agree with the Court’s characterization of Tammy Lynn’s arguments and also with her issue statements as to what is before us on appeal.
¶30 Asa result, we need only-and should only-determine whether the Knopps were entitled to bring their petition for a parenting plan under § 40-4-211, MCA (1997). Section 40-4-2ll(4)(b), MCA (1997), provides in pertinent part that the parenting plan proceeding may be initiated by a nonparent “by filing a petition for parenting in the county in which the child is permanently resident or found, but only if the child is not physically residing with one of the child’s parents.” In the present case, it is undisputed that J.N.P. was living with the Knopps at the time they filed their petition and, therefore, was not “physically residing” with either of her parents. Consequently, the Knopps were authorized under the statute to commence a parenting plan proceeding. In my view, this is the basis on which the appeal actually before us should be resolved and where it should end, at least for now. I would reverse the District Court and remand for further proceedings.
¶31 Instead of doing so, however, the Court examines and resolves an issue neither raised nor argued in the District Court or here, namely, the constitutionality of § 40-4-211(4)(b), MCA (1997). In addition, the Court bases its decision on A.R.A., on the theory that we can affirm a trial court if it reaches the right result, regardless of its reasoning. While I agree that we can do so and, in proper cases, in fact do so, it is my view that this is not a proper case. It is one thing to affirm a court on an issue raised but not decided by that court. It is another thing altogether for this Court to simply raise an issue and then resolve it without the benefit of briefing from any party. In the present casé, Tammy Lynn does not rely on A.R.A. The reason, of course, is that she does not raise the constitutional issue we resolved there.
*361¶32 For the same reason, Tammy did not comply with Rule 24(d), M.R.Civ.P., in the District Court or Rule 38, M.R.App.P., in this Court. Those Rules require a party challenging the constitutionality of an act of the Montana Legislature in a proceeding to which the State of Montana is not a party to affirmatively take certain acts. In the trial court arena, the party must “notify the Montana attorney general and the court of the constitutional issue[,]” in writing, at the time the document raising the constitutional issue is filed. Rule 24(d), M.R.Civ.P. In this Court, a party challenging the constitutionality of a legislative act must “give notice to the supreme court and to the Montana attorney general of the existence of the constitutional issue[,]” in writing and contemporaneously with the notice of appeal. Rule 38, M.R.App.P. Tammy Lynn did neither.
¶33 By acting so freely in striking down a statute enacted by the Legislature, prematurely and absent having the issue presented and the arguments fully briefed, it is my view that this Court totally subsumes the well-established rule that a statute is presumed constitutional and the burden is on the challenging party to establish that the statute is unconstitutional beyond a reasonable doubt. See, e.g., Powell v. State Comp. Ins. Fund, 2000 MT 321, ¶ 13, 302 Mont. 518, ¶ 13, 15 P.3d 877, ¶ 13. 1 cannot agree with such an approach.
¶34 Finally, I simply do not agree that A.R.A. is applicable to the present case in its current procedural posture. Unlike this case, we did not have a standing issue before us in A.R.A. There, a stepparent who was statutorily qualified to request custody of his deceased wife’s child was awarded custody, over objection by the remaining natural parent, based on the best interest of the child test. See In re A.R.A., 277 Mont. at 68-69, 919 P.2d at 390. While we ultimately held that the trial court erred by applying the best interest of the child test to award custody to a nonparent absent termination of parental rights, we also “recognize[d] that § 40-4-221, MCA, gives a nonparent standing to request a custody hearing....” In re A.R.A., 277 Mont. at 72, 919 P.2d at 392.
¶35 Here, only the threshold issue of standing is properly before us, by Tammy Lynn’s own words. At this point, we should follow the dictates of § 40-4-2 ll(4)(b), MCA, conclude that the Knopps have standing to initiate a parenting plan proceeding, reverse the District Court and remand for further proceedings. Instead, in a possible effort to promote “judicial economy,” the Court reaches a constitutional issue not before it and puts the cart before the horse. While I am all in favor of judicial economy, I am not willing to sacrifice so much to achieve it.
¶36 I dissent.