No. 34-11
I N THE SUPREME COURT O THE STATE O MONTANA
F F
1384
I N RE THE MARRIAGE O F
DEANNE PARADIS,
Appellant,
and
J O H N E. PARADIS,
Respondent.
Appeal from: D i s t r i c t Court of t h e F i r s t J u d i c i a l D i s t r i c t
I n and f o r t h e County o f Lewis and C l a r k
Honorable Henry L o b l e , J u d g e p r e s i d i n g .
Counsel of Record:
For A p p e l l a n t :
John P. P o s t o n ,
H a r r i s o n , Loendorf & P o s t o n , Helena, Montana
For Respondent :
Ann L . Smoyer,
P e t a j a & Smoyer, H e l e n a , Montana
For Matthew J . P a r a d i s :
John L . H o l l o w , IIelena, Montana
Submitted: May 2 4 , 1984
Decided: I'Jovember 1, 1984
Filed: -.-
- .- -
Clerk
r . Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
This is an appeal by the mother of a seven-year-old boy
from an order modifying a joint cust0d.y decree. We reverse
and reinstate the original order.
Deanne and John Paradis were married in 1973. Their
only child, Matthew, was born in 1977. They divorced in
1980. The couple's settlement agreement and the District
Court's decree provided for joint legal and physical custody:
while young, Matthew was to spend six months of the year with
each parent; upon entering school., Matthew was to spend the
sch.001 year with Deanne and the summer with John.
Both John and Deanne have remarried. Several months
after Deanne and her new husband moved to Hawaii and shortly
after his own remarriage, John petitioned the District Court
of Lewis and Clark County for a modification of custody.
Finding that Matthew was "integrated" into John's household
and that a move to Hawaii would not be in his best interests,
the tria.1 court modified the decree and awarded John custody
during the school year and Deanne custody during the summer.
Deanne appeals. She is supported, on appeal, by Matthew's
court-appointed counsel.
Appellant end counsel challenge the trial court's
application of the section 40-4-219 (1)(b), MCA, integration
standard to a joint custody decree that has successfully
a.llowed Matthew to be integrated into both parents' families.
This issue controls our decision on appea.1.
Section 40-4-219, MCA, provides:
"Modification. (1) The court may in its
discretion modify a prior custody decree
if it finds, upon the basis of facts that
have arisen since the prior decree or
that were unknown to the court at the
time of entry of the prior decree, that a
change has occurred in the circumstances
of the child or his custodian and that
the modification is necessary to serve
the best interest of the child and if it
further finds that:
"(a) the custodian agrees to the
modification;
" (b) the child has been integrated into
the family of the petitioner with consent
of the custodian;
" (c) the child's present environment
endangers seriously his physical, mental,
moral, or emotional health and the harm
likely to be caused by a change of envi-
ronment is outweighed by its advantages
to him; or
"(d) the child is 14 years of age or
older and. desires the modification. "
The section, like most of our child custody statutes,
is taken from the Uniform Marriage and Divorce Act. Although
the Act does not specifically preclude joint custody, its
provisions address only the traditional solution of sole
custody in one parent with the other having a right to visi-
tation. See, sections 40-4-211 through -221, MCA (consis-
tently referring to the custodian or custodial parent and the
noncustodial parent) .
Montana's three joint custody provisions present a
separate and distinct approach to custody. Their express
purpose is to assure a minor child frequent and continuing
contact with both parents and to encourage both parents to
share the rights and responsibilities of child rearing.
Section 40-4-222, MCA. The joint custody statute governing
modification, section 40-4-224 ( 3 ) , MCA, provides tha.t: "Any
order for joint custody may be modified pursuant to 40-4-219
- terminate the
to joint custody." (Emphasis supplied.)
Section 40-4-219 and, thus, the subsection (1)(b) integration
standard may be applied. only where one joint custodian seeks
to terminate the other's riqht to legal as well as physical
custody. It has no application to a dispute over the times
or terms of physical custody.
The integration standard of subsection ( 1 ) (b) of sec-
tion 40-4-219 is intended to provide a child with continuity
and stability where a sole custodian under the Uniform Act
has freely relinquished his or her right to physical custody
so frequently or for so prolonged a period that the child has
become settled and established in the home of the noncustodi-
a1 parent. In re Marriage of Eolton (Mont. 1984) , P.2d
--- 41 St.Rep. 1698. In contrast, a joint custody decree
requires that "the residency of the child shall be sharec? by
the ??rents. ' Section 40-4-224 (2), MCA.
I The 1-egislatu-re
has
clearly expressed its intention that a joint custody decree
result in the child being integrated into two homes. It has,
just as clearly, expressed its intention that this dual
integration not be used as grounds for modification of the
terms of a joint custody decree. Section 40-4-224(3), MCA.
In addition to challe~ging the trial court's applica-
tion of section 40-4-219, MCA, to a modification of joint
custody, appellant questions the sufficiency of the evidence
to support the court's finding that the move to Hawaii would
not be in Matthew's best interests. The court found both
parents and both stepparents to be very fine people eminently
qualified to be entrusted with Matthew's care. It found that
the move would seriously endanger Matthew's mental and emo-
tional health hut that not being allowed to live with his
mother in Hawaii would also seriously endanger 14atthew1s
mental and emotional- health. The court apparently based its
decision to modify custody on the fact that the move would
require a change of schools. "A parent entitled to custody
of a child has a right to change his residence, subject to
the power of the court to restrain a removal which would
prejudice the rights or welfare of the child." Section
40-6-231, MCA. Deanne was entitled to custody for the school
year. There are no facts to support a finding of prejudice.
We have already disapproved the use of the concept of parens
patriae to favor the institutions of our own state over those
of another. In re the Marriage of Markegard (Elont. 1980),
616 P.2d 323, 37 St.Rep. 1539. Deanne was presumpti.vely
entitled to move with Matthew and to settle in a new home.
Auge v. Auge (Minn. 1983), 334 N.W.2d 333; see a . l s o , Shapiro
v. Thompson (1969), 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d
600; In re the Marriage of Winn (Mont. 1980), 618 P.2d 870,
37 St.Rep. 1734.
The order of the trial court is vaca.ted and the origi-
nal order reinstated.
%&%&d
Chief Justlce
We concur: