No. 88-21
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
IN RE THE CUSTODY OF PIERRE DANIEL
ANDRE, a minor child.
PATRICK G. ANDRE,
Petitioner and Respondent,
-vs-
CAROL DOBSON, a/k/a ANN McALLISTER,
Respondent and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Douglas Harkin, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Klaus D. Sitte, Montana Legal Services, Missoula,
Montana
For Respondent :
Thomas W. Trigg, Missoula, Montana
Submitted on Briefs: July 14, 1988
Decided: September 16, 1988
Filed:
Mr. Justice John C. Sheehy delivered the 0pinl.on of the
Court.
Carol Dobson, the natural mother, appeals from the
findings of fact, conclusions of law and order of the Dis-
trict Court of the Fourth Judicial District, Missoula County,
which granted custody of the minor child to Patrick Andre,
the natural father. We reverse.
Although the parties vigorously contest the factual
basis of the District Court's opinion, we conclude that the
dispositive issue is one of first impression: namely, what is
the appropriate burden of proof justifying a change of
physical custody when the child has been living with a parent
pursuant to a custody agreement which has not been scruti-
nized by a court?
Carol Dobson (Mother) and Patrick Andre (Father) met
during the summer of 1977 while both parties were residing in
Arizona. The parties soon began living together but never
married. Their son was born in August 1978.
Pierre is Father's only child. Mother has two other
children from an earlier marriage. Mother had custody of the
two children following her divorce but admitted she was not a
good mother. The children were subsequently placed in foster
care by the Arizona Child Protective Services based on re-
ports of neglect. The children were later returned to Mother
during her relationship with Father but she was unable to
control the children. They were eventually placed with
mother's ex-brother-in-law voluntarily.
For most of Pierre's first four years, Mother and
Father lived together and shared parental responsibility.
During a portion of this time, Father was the primary care-
taker while Mother supported the family through employment as
an exotic dancer. Mother later resumed the role of primary
caretaker when Father obtained employment on a seismograph
crew.
In 1982, the parties separated permanently. At that
time, Mother and Father agreed that Mother would retain
custody of Pierre while Father returned to school and "got
his life together." Father was to pay an undetermined amount
of child support and would be allowed to see Pierre when he
wanted to. The agreement was oral and not presented for
judicial approval.
From 1982 until 1984, Father's contact with, and sup-
port of, Pierre was irregular. Beginning in the fall of
1984, Father took a more active role in his son's life.
Visitation increased significantly but was still not regular.
According to Father, Mother's interference and constant moves
were partially responsible for the irregularity. Father
continued to pay minimal child support.
Upon separation, Mother became acquainted with Gary
Mitchell as a result of four-year-old Pierre's wandering away
and appearing at Mr. Mitchell's door. Mr. Mitchell and
Mother later began living together and eventually married.
At one point in the relationship, Mother left Mr. Mitchell
and later moved in with Roger Garman but continued to see Mr.
Mitchell. While Mother was living alone, Pierre would
usually sleep in the front room when Mother had male guests
spend the night.
Father began the instant action in 1985 as a result of
perceived problems with Pierre. Father was disturbed by
Pierre's alleged lack of personal hygiene, inadequate dress,
lack of responsibility, failure to obey his parents, lying,
stealing, pants wetting, and failure to do well at school.
Father and his wife attempted to resolve the problems through
constructive, consistent discipline and by enrolling Pierre
at a private school at their expense. They have largely
remedied the problems.
Mother, on the other hand, is alleged to be unwilling
or unable to resolve Pierre's difficulties. An impartial
child psychologist retained by both parents determined that
Mother's lack of parenting skills and the instability in her
life had had a negative impact on Pierre. Although Pierre
was having problems in school, Mother did not consistently
help with his homework on the days Pierre was with her
because of her lack of time and her problems understanding
the work.
Her response to other problems has also been less than
adequate. When Pierre took twenty dollars from her purse and
bought himself a watch, Mother allowed him to keep the watch
as a birthday present. She explained that he may have
thought the money was his because it came from his father.
Incidents of stealing gum were dealt with by having Pierre
return the gum or by Mother keeping it. Pierre is also
allowed to be aggressive. He refers to his mother as Carol
and issues commands to her during play. Similarly, Mother
did not interfere in a fight she observed because Pierre was
sticking up for a friend and allows Pierre to be rough with
animals.
The psychologist concluded that Mother's constant
changes of residence and attempts to change Pierre's name had
led to so much instability and confusion in Pierre's life
that he was not sure what his name was. In addition, Moth-
er's smoking of marijuana in front of Pierre had not provided
a good role model. The psychologist therefore recommended
that Father be granted custody with reasonable visitation by
Mother. The District Court agreed.
The dispositive issue in the instant case is the Dis-
trict Court's use of the best interests test, as delineated
in S 40-4-212, MCA, to deprive Mother of custody. Mother
argues that her - facto custody of the child since birth
de
imposes a higher burden upon a parent seeking to deprive the
custodial parent of custody. We agree.
Although Montana has not addressed the issue of - de
facto or - jure custody arrangements, the issue has been
de
examined by our sister state of California. In Burchard v.
Garay (Cal. 1986), 724 P.2d 486, the court was confronted
with the question of the applicable standard of proof, justi-
fying a change of custody in a situation in which the mother
had maintained a - jure custody since the child's birth two
de
and one-half years earlier. Before reaching the merits, the
court first examined the nature of the changed circumstances
rule urged by the mother and the best interests test urged by
the father. It reasoned:
The changed-circumstance rule is not a
different test, devised to supplant the
statutory test, but an adjunct to the
best-interest test. It provides, in
essence, that once it has been estab-
lished that a particular custodial
arrangement is in the best interests of
the child, the court need not reexamine
that question. Instead, it should
preserve the established mode of custody
unless some significant change in
circumstances indicates that a different
arrangement would be in the child's best
interest. The rule thus fosters the
dual goals of judicial economy and
protecting stable custody arrangements.
(Citations omitted. 1
724 P.2d at 488.
Inexplainably, the California majority went on to hold
that the changed circumstances rule did not apply because
there had not been a prior judicial determination, a decision
which, on its face, conflicts with the stated goal of
fostering stability in a child's life.
Stability of custody arrangements, whether created
judicially, by agreement, or by default, is one of the most
crucial factors in a child's development. Recognizing this
fact, "the Uniform Marriage and Divorce Act in effect creates
a presumption that the best interests of the child are served
by continuation of initial custodial arrangements and allows
this presumption to he overcome only in the most limited
circumstances. I
' Sharp, Modification of Agreement-Based
Custody Decrees: Unitary or Dual Standard?, 68 Va.L.Rev.
1263, 1267-1268 (1982). See generally, S S 40-4-212(4) and
40-4-219, MCA. We see no reason why this presumption should
be ignored in - facto or - jure custody arrangements. As
de de
noted by Justice Mosk in his concurring opinion:
First, the limited application of the
changed-circumstance rule that the
majority adopt is in conflict with the
primary purpose of this rule. The child
whose custody was established by means
other than judicial decree has the same
need for and right to stability and
continuity--and accordingly the same
entitlement to the protection the rule
is intended to provide--as the child
whose custody was established by judi-
cial decree. Because it is not
unreasonable to assume that the children
of two-parent and relatively more afflu-
ent families are disproportionately
represented in the class of children
whose custody was originally established
by judicial decree, the majority's
holding, I fear, will effectively deny
needed protection disproportionately to
children of single-parent and less
affluent families.
Second, most states--including, until
today, California--appear to require
"changed circumstances" to modify custo-
dy regardless of how custody was origi-
nally established. [Citation omitted.]
The rationale for this position was
explained in Carney: "regardless of how
custody was originally decided upon,
after t h e child has lived in one par-
ent's home for a significant period it
surely remains 'undesirable' to uproot
him from his 'established mode of liv-
ing,' and a substantial change in his
circumstances should ordinarily be
required to justify that result. "
[Citation omitted. 1
Burchard, 724 P.2d at 497.
Although the end of a relationship is a time of great
trauma, parents generally love their children and have the
greatest interest in determining which of them can best care
and provide for the child. Black v. Black (Cal. 1906), 86 P.
505, 506. In addition, parents are in a much better position
to determine custody arrangements. Hassell v. Means (N.C.
App. 1979), 257 S.E.2d 123, 127. It would be unrealistic to
assume that the welfare of a child can better be determined
by a court after a short period of self-interested testimony.
We therefore conclude that the changed circumstances rule and
best interests test, as set forth in S 40-4-219, MCA, is
applicable when a parent seeks modification of a - facto
de
custody arrangement.
However, the primacy of the child's, not the parents' ,
interests requires additional recognition and protection.
Occasionally, in rare situations, it may appear that while
circumstances have remained unchanged, custody was clearly
inadequate since its inception. In such situations, strict
application of the change of circumstances rule would work as
a serious injustice to the child and contravene the benefits
of the flexibility inherent in the interaction of the changed
circumstances-best interests standard. As stated in
Svennungsen v. Svennungsen (1974), 165 Mont. 161, 167, 527
P . 2 d 040, 643:
We do not want to be understood as
implying that a substantial change in
circumstances would be required as a
threshold finding in every factual
situation before the issue of custody
could be litigated on a petition to
modify custody ... [Wle would be
receptive to the proposition that a
showing of unfitness on the part of the
person having custody, or some other
justifiable grounds might suffice and,
despite a failure to show a substantial
change of circumstance, enable the
district court to consider the issue of
custody on a petition to modify custody.
See also, Burchard, 724 P.2d at 499 (Mosk, J., concurring).
We offer no opinion on whether this exception is applicable
in the instant case.
The judgment of the District Court is reversed and
remanded for a determination of whether a change of circum-
stances has occurred or the above-stated exception applies.
The court is also instructed to cause separate counsel to be
appointed to represent the interests of Pierre. Costs to
Mother.
#A<~~,,,L
We Concur:
Chief Justlce
--- --
Justices
Mr. Justice Fred J. Weber dissenting.
I express reservation about this holding because I do
not feel that the facts of this case justify what I consider
to be a change in our custody statutes. I do not dispute the
importance of recognizing the length of time a parent serves
as the primary caretaker of a child whose custody has not yet
been determined under our statutory scheme. However, this
Court should not override the extensive findings and judgment
of the District Court in this case based on the requirement
of finding a change in circumstances. Unlike the majority, I
do not feel that the District Court ignored the fact of
mother's primary caretaker role. Counsel for the mother
repeatedly stressed the 9 years in which the child had been
in her care, with increased involvement by the father through
visitation beginning when the child was 6 years old and
continuing to the present. The District Court made extensive
findings regarding the competence of both parents, which
adequately justify his decision to award custody to the
father even in light of the mother's role as primary caretak-
er. I would defer to the judgment of the District Court in
this matter and affirm this decision. Even under the majori-
ty's holding I find substantial evidence in the record to
justify the District Court's determination. I respectfully
dissent.
Mr. Justice L. C. Gulbrandson joins in thtyforegoing
dissent. ,-
, '
,
Justice