In Re the Custody & Support of B.T.S.

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 ; James C. B a r t l e t t
argued, K a l i s p e l l , Montana

Submitted: June 27, 1 9 8 5

Decided: January 9 , 1 9 8 6

Filed: ; ! h ~ - 1935
& I
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. Following B.T.S.'s twelve-day hospitalization
after his 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. D.A. returned to her
teaching job when B.T.S. 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. She and her husband
farm during the summer months. 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 to
arrange a visit in July, 1983. The parents disagreed over
the visitation arrangements. The mother suggested B.T.S. and
his father spend one week getting reacquainted through
daytime visits with overnight visits the second week. The
father wanted to take B.T.S. with him to Helena the first
week, while he worked for relatives, and spend another week
with him at the paternal grandparents' home. The father went
to Helena alone. When he returned, he spent one day with
B.T.S. at the maternal grandparents' home. The mother then
brought B.T.S. 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. He also requested
B.T.S.'s surname be changed to his own and a determination of
child support. The cause was heard on April 24, 1984. At
trial, Lawrence G. Jarvis, Ph.D., a clinical psychologist
specializing in young child development and family
relationships, testified. He expressed the following
opinions: (1) a child B.T.S.'s age would suffer anxiety and
have difficulty adjusting to an abrupt change in environment;
(2) the mother and stepfather had warm and loving
relationships with B.T.S.; (3) B.T.S. was doing well in his
development, motor skills and 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 its
findings, conclusions and order on October 30, 1984. The
court determined that "nothing prec3-udes the awardj-ng of
joint custody;" joint custody is in B.T.S.'s best interests;
both parents are likely to all-ow contact with the
non-custodial parent; B.T.S. should carry his 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 father
should pay child support of $100 per month. The court's
order also set out the arrangement for physical custody.
B.T.S. stays with his mother fror August 20 to June 10, and
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
B.T.S. jointly to his mother and father?
(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. (Mont. 1985),
695 P.2d 816, 818, 42 St.Rep. 190, 193. 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 536, 539, 42
St.Rep. 54, 57, when we stated ". . . it seems clear that
joint custody will not be satisfactory unless it exists
between parents willing to cooperate with each other in
custody matters.'' Citing Lembach v. Cox (Utah 1981), 639
P.2d 187, 200. Other jurisicti.ons characterize this as a
finding that 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. See also Braiman
v. Braiman {N.Y. 1978), 378 N.E.2d 1019; Wilcox v. Wilcox
(Mich. 1981), 310 N.W.2d 434; and 17 ALR4th 1013, Joint
Custody of Children. This specific factor relates to
subsection (1) of 5 40-4-212, MCA, the parents' wishes as to
j

custody. In this case the respondent requested joint custody
a.nd the appellant requested sole custody of B.T.S. subject to
the father's visitation. Both parties testified as to their
inability to agree about B.T.S.'s welfare. The appellant
felt she carried the entire burden. She travelled with
B.T.S. 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. No evidence in the record indicates he attempted to
become 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. Here, the
District Court's only findings on R.T.S.'s 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.) However, the
'essential and determining 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 1057, 1060. Particularly in a case such as
this, with a 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 § 40-4-222, MCA, is "to assure minor children
frequent and continuing contact with both parents . . . and
to encourage parents to share the rights and responsibilities
of child rearing." This statement is based on sections 4600
and 4600.5 of California's Civil Code. Like Montana,
California requires the courts to award custody according to
the best interest of the child. However, 4600.5 (c),
Cal.Civ.Code, requires more than a 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
this subdivision. (Em~hasis added.
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: ". . . the court
shall state in its decision the reasons and factors
considered in making the award." 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. B.T.S. was
born after the divorce. The father has spent the greater
portion of B.T.S.'s 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. At trial, Dr. Jarvis testified
that abrupt 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." The mother
expressed concern that forcing a child of 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 should-
enter explicit findings on physical custody. These findings
should reflect the District Court's consideration of the
evidence presented at trial.
 This holding is consistent with newly revised
S 40-4-223(3), MCA, requiring a court to "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 statement that "each case shall be determined
according to its own practicalities" recognizes that
allotment of time may be skewed. 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. However,
under S 27-1-211, MCA, appellant is entitled to recover
interest from the date of judgment. Callihan v. Burlington
Northern, Inc. (Mont. 1982), 654 P.2d 972, 39 St.Rep. 2158.
 Reversed for findings consistent with the above

opinion.
 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. The
volume of their work precludes making findings on every
conceivable statutory guideline. The majority's approach can
most accurately be characterized as nit-picking.
I would affirm the judgment of the District Court.
Mr. J u s t i c e John C. 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.

Those criteria make it impossible for a father in the

circumstance of the respondent here ever to have joint

c u s t o d y of h i s minor c h i l d .

As to the first criterion, the mother does n o t want

joint custody. She d e m o n s t r a t e s no ability to c~cperztc.

H e r petition requests t h a t she be given s o l e custody. Her

wish to achieve sole custody is contra to public policy,

dec:lared in section 40-4-222, VCA o f t h i s s t a t e t h a t m i n o r

children h?.ve "frequent and continuing contact with both
parents after the parents have separated ... 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. Section

40-4-222, KCA.

The second criterion nierdated by the majority is

impossible for this f a t h e r because t h e m o t h e r h a s made 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 petitioner [father] and [ETS], most difficulty
efigendered by respondent [mother] 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. Sectior, 40-4-224, MCA provides that
when a parent 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

- minor child. "
the
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. The majority
opinion reverses the provisions of section 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 Court 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
the testimony of Dr. Jarvis, t h e c l i n i c a l p s y c h c l o g i s t who

t e s t i f i e d i n t h i s case, and w i t h good r e a s o n . Without e v e r

interviewing the father, the witness 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

t h e record, w e r e thzit " 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

parent capable of providing more than adequate care and

afSection fcr [BTS] ." The testimony of Jarvis has no

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 in its best light, the majority opinion is

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 parents of minor children are under the declared

public policy of t h i s s t a t e t o he a s s u r e d o f " f r e q u e n t and

continuing contact" with the minor children. Section

40-4-222, PCA. It is our f u r t h e r publ-ic p o l i c y t h a t "the

allot-ment of time between parties shall be as 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, the

District Court determined that i n t h e summertime, when t h e

tather was not attending school, he should have custody

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 f a t h e r

is under our statutes ectitled to six months, if the

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 . The D i s t r i c t

Court arranged further for alternate holidays when each

parent would enjoy the custody of the child. A more
practical way t o handle t h e problem of joint custody here

c a n n o t b e ima.gined, y e t t h e m a j o r i t y , 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 , 1985 (the child

having been d e p r i v e 2 o f h i s f a t h e r ' s company by t h e n o t h e r

during most of his life), remand 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