No. 13564
IN THE SUPREME COURT OF THE STATE OF MONTANA
1977
MARLYS D. HENDERSON,
Plaintiff and Appellant,
KENNETH A. HENDERSON,
Defendant and Respondent,
______________-___----------------------------------
DONNA RIPHENBURG,
Petitioner,
MARLYS D. HENDERSON,
Respondent.
Appeal from: District Court of the Eighth Judicial District,
Honorable Truman G. Bradford, Judge presiding.
Counsel of Record:
For Appellant:
Marra, Wenz & Iwen, Great Falls, Montana
John Iwen argued and David Hopkins argued, Great Falls,
Montana
For Respondent :
Howard Strause argued, Great Falls, Montana
Submitted: April 27, 1977
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~ecided: - 23 in
9
Mr. Justice Daniel J. Shea delivered the Opinion of the Court.
The natural mother, Marlys Henderson, appeals from a judgment
of the district court, Cascade ~ o u n t ~ ,
awarding permanent custody and
guardianship of her two minor children to their paternal aunt, Donna
Riphenburg.
Three issues are raised on appeal:
1. Whether the aunt has standing to bring an action for
temporary custody of the children.
2. Whether the aunt can obtain temporary custody without
filing a petition or giving notice to the mother.
3. Whether the court can grant permanent custody to the aunt
without a showing the mother caused the children to be abused, neg-
lected or dependent.
Three proceedings were consolidated for hearing in the dis-
trict court and are involved in this appeal. The first proceeding
began with the divorce of Marlys and Kenneth Henderson on June 12,
1975. At that time, Marlys received custody of their daughter
Jennifer, born March 24, 1972, and Kenneth received custody of their
son Joel, born August 11, 1974. In December 1975 Marlys and Kenneth
returned to the district court, each seeking custody of both chil-
dren. They eventually agreed Kenneth would retain custody of Joel
and take temporary custody of Jennifer, pending investigation of
the question of permanent investigation of the question of permanent
custody of both children by the court of conciliation. This pro-
ceeding was never concluded because of Kenneth's untimely death in
an automobile accident April 2, 1976.
The second proceeding began immediately upon ~enneth's
death. Kenneth's attorney appeared that same day before the district
court and submitted only an affidavit in support of a proposed order
giving Donna Riphenburg, Kenneth's sister, temporary custody of the
children. The court granted the order without giving notice to the
natural mother. On April 12, 1976, the aunt filed a petition for
appointment as guardian of the children, and without notice to the
mother, the court appointed the aunt temporary guardian on April
13, 1976. On April 13, 1976, the mother's attorney was given notice
the court would hold a hearing on the guardianship petition.
The third and last proceeding in the district court was com-
menced by a petition filed by the aunt, June 7, 1976, seeking per-
manent custody of the children. All three proceedings were tried
together July 6, 1976. On July 13, 1976, judgment was entered ap-
pointing the aunt guardian of the children and also awarding her
permanent custody of the children. One of the reasons for the
guardianship proceeding was to allow the aunt to administer the pro-
ceeds of a life insurance policy on the father's life on behalf of
his children.
The court's granting temporary custody to the aunt without
notice to the mother was error. Section 48-331(4), R.C.M. 1947,
of the Uniform Marriage and Divorce Act, provides:
"(4) A child custody proceeding is commenced in
the district court:
"(a) by a parent, by filing a petition
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"(b) by a person other than a parent, by filing a
petition for custody of the child in the county in
which he is permanently resident or found, but only
if he is not in the physical custody of one of his
parents." (Emphasis supplied.)
The aunt did not have standing to begin a custody proceeding under
section 48-331(4)(b). The aunt argues the requirement that the
children not be in the physical custody of one of the parents was
met because at the time of the father's death and at the time the
aunt picked the children up, they were being cared for by a baby-
sitter. We find no merit to this argument. "Physical custody" is
not limited to having actual, immediate control of the physical
presence of the child. Rather, this phrase relates to the custodial
rights involved in the care and control of the child. Burge v.
City and County of San Francisco, 41 C.2d 608, 262 P.2d 6 (1953).
To interpret this phrase otherwise would allow a nonparent to file
a petition for custody anytime the child is out of the physical
presence of the parent or parents, even if for a few minutes, or
under the watchful eyes of an authorized babysitter, as here. It
must be emphasized that at the moment of the father's death, the
mother, as the surviving parent of the children, automatically as-
sumed the legal right to custody of the children under section 61-
105, R.C.M. 1947:
" * * * If either parent be dead, or unable, or
refuse to take the custody, or has abandoned his
or her family, the other is entitled to its cus-
tody, services, and earnings."
Section 48-333(1), R.C.M. 1947, sets out the procedures for
a temporary order of child custody:
"(1) A party to a custody proceeding may move
for a temporary custody order. The motion must
be supported by an affidavit as provided in section
48-340. The court may award temporary custody
under the standards of section 48-332 after a hear-
ing, or, if there is no objection, solely on the
basis of the affidavits." (Emphasis supplied.)
Here, the aunt was not a party to the original custody proceeding,
nor did she become one by filing an affidavit after the father's
death. Under section 48-331(5), R.C.M. 1947, " * * * The court,
upon a showing of good cause, may permit intervention of other
interested parties." Nothing in the record suggests, however, that
the aunt tried to intervene in the original action before the father's
death. Accordingly, after the father's death, the aunt lacked stand-
ing in the original proceeding to move for temporary custody.
Finally, section 48-340, R.C.M. 1947, sets out the procedure
for submitting affidavits in custody proceedings:
"A party seeking a temporary custody order or
modification of a custody decree shall submit
together with his moving papers an affidavit
setting forth facts supporting the requested
order or modification and shall give notice,
together with a copy of his affidavit, to other
parties to the proceeding, who may file opposing
affidavits. The court shall deny the motion un-
less it finds that adequate cause for hearing the
motion is established by the affidavits, in which
case it shall set a date for hearing on an order
to show cause why the requested order or modifi-
cation should not be granted."
Even if the aunt did have standing to bring the action for
temporary custody, under the above statute she failed to follow
correct procedures. First, no motion was filed with the affidavit.
Second, no notice was given to the mother, who was among "other
parties to the proceeding". Third, and most important, the affidavit
was deficient because it did not set forth evidentiary facts in sup-
port of the requested order. This statute requires the facts to
be set out in detail so the court can make an informed decision, but
here there was simply no basis upon which the court could determine
the aunt should have temporary custody. The affidavit stated in
relevant part:
"That approximately on the 2nd day of April, 1976,
Kenneth A. Henderson was killed in an automobile
accident, That it would be in the best interests
of the children involved for Donna Riphenburg to
be granted the temporary care, custody and control
of the minor children. That Donna Riphenburg is
the sister of Kenneth A. Henderson and is responsible
and capable of caring for the needs of said children.
That this affidavit is made in support of a Court
order directing that Donna Riphenburg be granted the
temporary care, custody and control of Joel Henderson
and Jennifer Henderson."
This affidavit is devoid of even an attempt to comply with section
48-340. It does not even acknowledge the existence of the children's
mother. Under these circumstances the district court had no juris-
diction to grant temporary custody to the aunt.
The dangers of failure to comply with this statute are
illustrated by what happened here. Regardless of any deficiency in
obtaining temporary custody, the aunt argues the issue is moot since
a full hearing on the merits of the petition for permanent custody
was held on July 6, 1976. We disagree. The transcript on appeal
indicates the district judge conducting the hearing on permanent
custody mistakenly assumed that another district judge had conducted
a hearing and found misconduct on the part of the mother before he
awarded temporary custody of the children to the aunt. This temporary
custody order in effect created a presumption in favor of the aunt
and shifted the burden of proof to the mother, and was in direct
violation of section 48-333(1), R.C.M. 1947.
We next discuss the aunt's petition for permanent custody.
The petition was filed under the Montana Uniform Marriage and Divorce
Act, and the pertinent part of the petition stated:
"That Donna Riphenburg is a fit and proper person
to have the permanent care, custody and control of
said minor children. That it would be in the best
interests of said minor children to grant their
care, custody and control to Donna Riphenburg.
That Marlys D. Henderson is not a fit and proper
person to have the care, custody and control of
said minor children. That during the short time
that Marlys D. Henderson had custody of Jennifer
Henderson, she did not conduct herself as a proper
mother and by her actions indicated that she is
not a proper person to be granted custody of said
minor children."
To this allegation the mother answered in her affirmative defenses
that the petition:
" * * * contains no allegations, whatsoever, that
said minor children are abused, neglected or
dependent as defined in Section 10-1301, R.C.M.,
1947, and that Section 48-331(d) (4)(b), R.C.M.,
1947, requires such a showing before a natural
mother can be stripped of her rights to the care,
custody and control of her children by an individ-
ual who is not a natural parent of said children."
The district court did not directly rule on this affirmative
defense and concluded at the end of the hearing that the mother was
not a fit and proper person to have custody of her children. We
hold the district court should have allowed this affirmative defense
and ruled the proper procedure for the aunt to undertake was a sep-
arate proceeding under the dependent and neglect statutes, rather
than under the Uniform Marriage and Divorce Act.
The record shows the district court reached its decision on
the basis of the "best interest" test set out in section 48-332,
R.C.M. 1947, of the Uniform Marriage and Divorce Act, which was not
designed to give nonparents the same standards for determining cus-
tody of children. The Uniform Code Commissioners' note on this
section states in 9 Uniform Laws Annotated, Marriage and Divorce
Act, § 401, p. 504:
" * * * if one of the parents has physical custody
of the child, a non-parent may not bring an action
to contest that parent's right to continuing cus-
tody under the 'best interest of the child' standard
of Section 402. If a non-parent (a grandparent or
an aunt or uncle, perhaps) wants to acquire custody,
he must commence proceedings under the far more
stringent standards for intervention provided in
the typical Juvenile Court Act. In short, this sub-
section has been devised to protect the 'parental
rights' of custodial parents and to insure that in-
trusions upon those rights will occur only when the
care the parent is providing the child falls short
of the minimum standard imposed by the community at
large--the standard incorporated in the neglect or
delinquency definitions of the state's ~uvenile
Court Act." (Parenthetical matter in original.)
This is not a radical departure from existing law. This Court stated
50 years ago in August v. Burns, 79 Mont. 198, 219-220, 255 P. 737
" * * * in a proper proceeding a child may be
taken from a surviving parent, or from both parents,
when it appears that such are not proper persons
to have the custody of the child. However, the
surviving parent is legally entitled to the custody
of the children * * * and is required by law to
support and care for such children * * * and the
paramount interest of the child, or its wish, will
not justify the court, in the absence of a showing
of unfitness or inability to support a child, in
arbitrarily taking a child from its natural guardian
and turning it over to a stranger."
Clearly, no petition to take the children away was filed here under
the abuse, neglect and dependency statutes. It is important to note
the mother was never, either before or after the father's death,
declared to be unfit to have the custody of the children. This
being so, the district court had no jurisdiction to take the children
away from their natural mother.
The "best interest of the child" test is correctly used to
determine custody rights between natural parents in divorce pro-
ceedings. In this situation the "equal rights" to custody which
both the father and mother possess under section 61-105, R.C.M. 1947,
are weighed in relation to each parent's ability to provide best for
the child's physical, mental, and emotional needs upon the breakdown
of the marital relationship. "Fitness" of each parent is determined
only in relation to the other and not to society as a whole. However,
where third parties seek custody, it has long been the law in Montana
that the right of the natural parent prevails until a showing of a
forfeiture of this right. Ex parte Bourquin, 88 Mont. 118, 290
P. 250 (1930). See also Matter of Fisher, 169 Mont. 254, 545 P.2d
654, 33 St.Rep. 183 (1976). The Uniform Marriage and Divorce Act
does not change this law. This forfeiture can result only where
the parent's conduct does not meet the minimum standards of the
child abuse, neglect and dependency statutes.
The remaining question concerns guardianship. It is clear
that the district court appointed the aunt guardian because of its
decision on her petition for permanent custody. If the district
court would have awarded permanent custody to the mother, we cannot
envision the court still would have appointed the aunt guardian of
the estates and persons of the children. It stands, therefore, that
the guardianship, with one exception, must also be set aside. One
of the reasons the aunt petitioned the court to be appointed guardian
was so she could administer on behalf of the children the proceeds
of a life insurance policy on their father's life. The aunt was
named as beneficiary of the policy with the understanding that she
administer the money for the children. No good purpose would be
achieved in changing the guardianship with regard to the insurance
proceeds. Accordingly, the aunt is retained as a limited guardian
only, to administer the insurance policy proceeds on behalf of the
children.
The permanent custody order of the district court is set
aside and the children are ordered returned to their mother. This
decision is without prejudice to the aunt to start proceedings
under Title LO, Chapter 13, Revised Codes of Montana, 1947. The
guardianship appointments are also vacated with the exception stated.
This cause is remanded to the district court for further
proceedings in accordance with this opinion.
We Concur:
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Chief Justice