No. 04-487
IN THE SUPREME COURT OF THE STATE OF MONTANA
2005 MT 68
IN RE THE PARENTING OF D.A.H. and G.M.H.,
Minor Children
F.H. and W.H.,
Petitioners and Appellants,
v.
C.P.H.,
Respondent and Respondent.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark, Cause No. ADR 2004-43
The Honorable Dorothy McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Miriam G. Luse, Attorney at Law, Helena, Montana
For Respondent:
Joan Hunter, Attorney at Law, Helena, Montana
Submitted on Briefs: February 23, 2005
Decided: March 22, 2005
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 F.H. and W.H., the maternal grandparents of D.A.H. (D.H.) and G.M.H. (G.H.),
appeal the First Judicial District Court’s dismissal of their action for want of jurisdiction.
We affirm.
ISSUE
¶2 The dispositive issue before this Court is whether the grandparents have standing to
bring this action.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 S.H. and C.P.H. (C.H.) are the biological parents of D.H. and G.H. In May 2003, the
family moved from Washington to Maine. On August 18, 2003, C.H. assaulted S.H., who
required a short hospital stay for her injuries. Upon release from the hospital, S.H. sought
a temporary protective order which was issued by a Maine court on August 20, 2003. On
the following day, S.H. fled with her children to Oregon where her parents, F.H. and W.H.,
lived. She and the children have resided with her parents since that time.
¶4 On August 29, 2003, C.H. filed for divorce in Maine. S.H. was served with the
divorce papers and answered the complaint. On September 9, 2003, S.H. applied to an
Oregon court for a protective order. On November 7, 2003, the Maine court assumed
jurisdiction and a temporary Order was entered by the court granting custody to C.H. On
November 20, 2003, the children, their mother and their grandparents moved from Oregon
to Helena, Montana, where the children started intensive therapy for post-traumatic stress
disorder. Also, D.H., who was six years old at the time, started public school for the first
2
time.
¶5 On January 8, 2004, the Maine court ordered S.H. to return the children to Maine on
or before February 15, 2004. On February 6, 2004, the grandparents filed an emergency ex
parte motion under § 40-7-204, MCA, in the First Judicial District Court of Montana,
requesting that the District Court issue an order blocking the Maine Order to return the
children. On March 8, 2004, the Montana District Court entered a jurisdictional order
accepting jurisdiction of the children. Subsequently, in accordance with § 40-7-204(4),
MCA, of the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA), the Montana
District Court communicated with the Maine court. As a result of this communication, the
District Court entered an order declining jurisdiction, dismissing the case and remanding the
matter to the Maine court. The grandparents filed a timely appeal.
STANDARD OF REVIEW
¶6 We review a district court’s decision to decline jurisdiction for an abuse of discretion.
Riley v. Amundsen (In re Custody of N.G.H.), 2004 MT 162, ¶ 12, 322 Mont. 20, ¶ 12, 92
P.3d 1215, ¶ 12 (citing In re Marriage of Fontenot, 2003 MT 242, ¶ 11, 317 Mont. 298, ¶
11, 77 P.3d 206, ¶ 11).
DISCUSSION
¶7 As a general rule, we decline to address on appeal an issue not raised by the parties
before the District Court. See Armstrong v. State, 1999 MT 261, ¶ 4, 296 Mont. 361, ¶ 4,
989 P.2d 364, ¶ 4; Mortgage Source, Inc. v. Strong, 2003 MT 205, ¶ 14 , 317 Mont. 37, ¶
14, 75 P.3d 304, ¶ 14. Questions of standing, however, are an exception to that rule.
3
Standing is a threshold requirement of every case and may be raised by this Court sua sponte
or, as in this case, by the parties in their appeal briefs. Armstrong, ¶ 4.
¶8 Standing is a person’s right to make a legal claim or seek judicial enforcement of a
duty or right. Black’s Law Dictionary, Seventh Edition. Standing is closely linked to a
court’s jurisdiction--a court that would otherwise have jurisdiction to hear and decide a
matter will not have jurisdiction if a person without standing attempts to bring the action.
See Edwards v. Burke, 2004 MT 350, 324 Mont. 358, 102 P.3d 1271. Moreover, because
Montana law recognizes the importance of the rights involved in the natural parent-child
relationship, the legislature has enacted a variety of statutory schemes pertaining to custody
of children and the manner in which a third party, non-parent, may intercede in the parent-
child relationship. Girard v. Williams, 1998 MT 231, ¶ 17, 291 Mont. 49, ¶ 17, 966 P.2d
1155, ¶ 17. See Title 41, Chapter 3, MCA (termination of parental rights for abuse and
neglect); Title 40, Chapter 6, MCA (the Uniform Parentage Act); and Title 40, Chapter 4,
MCA (the Uniform Marriage and Divorce Act)(UMDA). We stated in Girard that when
determining whether a non-parent has standing to intervene and petition for custody, we
must first determine whether the underlying proceeding is a custody action or some other
type of parental rights action. Girard, ¶ 27. In the case before us, W.H. and F.H. sought
emergency relief under the UCCJEA, claiming that custody of D.H. and G.H. should remain
with their family in Montana. Therefore, this is a custody proceeding and, in accordance
with Girard, non-parent standing will be determined under the UMDA. Girard, ¶ 31.
¶9 Section 40-4-211, MCA, defines a court’s jurisdictional authority for child custody
4
or parenting proceedings under the UMDA. Section 40-4-211(4)(a) and (b), MCA, identify
those persons who may commence parenting proceedings. In addition to allowing a parent
to do so, § 40-4-211(4)(b), MCA, allows a parenting plan proceeding to be commenced in
district court “by a person other than a parent if the person has established a child-parent
relationship with the child, by filing a petition for parenting in the county in which the child
resides or is found.”
¶10 F.H. and W.H. argue that they have developed the necessary “child-parent
relationship” with D.H. and G.H. They cite the definition for “child-parent relationship”
found in § 40-4-211(6), MCA, and provide numerous examples to prove that such a
relationship existed. What they have not done, however, is satisfy the statutory predicate
which requires the filing of a petition for parenting in the county in which the child is found,
followed by the notice to all interested parties, court-ordered investigation, and hearings
contemplated by § 40-4-211, et. seq., MCA. It is undisputed that the grandparents have not
filed such a petition.
¶11 The petition filed before the District Court in this matter sought to keep the children
with the grandparents by invoking the District Court’s emergency jurisdiction under § 40-7-
204(4), MCA. However, the grandparents sought more than temporary emergency
jurisdiction; they also sought--and claim on appeal that the court erred in denying--a custody
determination. The UCCJEA is not intended to be a vehicle whereby persons with no legal
right to custody may sidestep the statutory pre-requisites to obtaining parental rights. Here,
no petition for the establishment of parenting rights has been filed, nor has either biological
5
parent voluntarily relinquished custody to the grandparents or had their parental rights
terminated. Thus, the grandparents cannot make the predicate showing that they are entitled
to custody of these children in the first instance. We therefore conclude that they do not
have standing to gain custody of the children under the UCCJEA.
¶12 The dissent maintains that we have disregarded the best interests of the children in
reaching our decision. We have not. We agree there is evidence to suggest that the father
may not be the best of custodians for the children; such factors make decisions like this very
difficult to make. However, the fact remains that a party claiming entitlement to custody
must comply with the procedural requisites noted above. If, as the Dissent argues, the best
interests of the children were the sole factor deserving consideration, then any person
asserting the best interests of the children would arguably have standing to gain their
custody, notwithstanding the fact that legal custody of such children rested with a stranger
to the proceeding.
¶13 It is not this Court that placed this case in the posture we now find ourselves facing.
While it appears the mother did file a petition to intervene in the proceedings two months
after the grandparents commenced these proceedings, she did so in support of their petition,
and not as a parent asserting her own custodial rights. Moreover, there is no question that
the grandparents are seeking not just emergency protection, but outright legal custody of the
children. Under such circumstances, we cannot simply ignore the statutory requirement that
the person asserting custodial rights first demonstrate a right to custody under the law. We
do not rejoice in the decision we make here; however, it is not our office to render the
6
custody statutes passed by the legislature superfluous.
¶14 Based upon the foregoing, we conclude that F.H. and W.H. do not have standing to
bring this emergency custody determination. Therefore, although the District Court
declined jurisdiction for reasons other than those stated here, we conclude the court reached
the correct decision. As we have frequently stated, we will affirm district court decisions
which reach the right result, regardless of the court’s reasoning. Phillips v. City of Billings
(1988), 233 Mont. 249, 252, 758 P.2d 772, 774.
CONCLUSION
¶15 For the foregoing reasons, we affirm the District Court.
/S/ PATRICIA O. COTTER
We Concur:
/S/ KARLA M. GRAY
/S/ JIM RICE
/S/ JAMES C. NELSON
7
Justice Brian Morris dissents.
¶16 In its rush to elevate the form of § 40-4-211(4)(b), MCA, requiring a non-parent to
file a petition establishing a “child-parent relationship,” over the intent of the Uniform
Marriage and Divorce Act, the Court loses sight of the primary purpose of custody
determination proceedings under Title 40, Chapter 4, part 2–to further and protect the best
interests of the child. The Court’s decision also wrongly imputes to the grandparents
deceptive designs regarding the temporary emergency jurisdiction of the court under Title
40, Chapter 7, part 2 and the custody of the children where the record contains no evidence
of any such intention.
¶17 The Court dismisses the grandparents’ appeal for lack of standing. The Court bases
its decision on the grandparents’ failure to satisfy the statutory predicate requiring the filing
of a petition for parenting establishing their “child-parent relationship” with the children.
The majority ignores, however, evidence presented to the District Court that the grandparents
had fulfilled the “child-parent relationship” requirements and relies instead on the absence
of a petition establishing the same.
¶18 Under § 40-4-211(4)(b), MCA, a parenting plan proceeding may be commenced in
district court “by a person other than a parent if the person has established a child-parent
relationship with the child, by filing a petition for parenting in the county in which the child
resides or is found.” A “child-parent relationship” under § 40-4-211(6), MCA, requires that
a person provide for the physical needs of a child by supplying food, shelter, and clothing
as well as the necessary care, education and discipline that continues on a day-to-day basis
through interaction and companionship that fulfill the child’s psychological needs. Section
8
40-4-211(6), MCA. A court determines the best interests of a child by considering, inter
alia, the wishes of the child and his or her parents, the child’s adjustment to home, school
and community, the mental and physical health of all individuals involved and the physical
abuse or threat of physical abuse by one parent against the other parent or the child. Section
40-4-212, MCA.
¶19 The record indicates that the grandparents had developed a “child-parent relationship”
with the children. In addition to housing and feeding the children on a day-to-day basis, they
have enrolled the boys, ages 5 and 6, in intensive psychological therapy to combat their post-
traumatic stress disorder and depression resulting from the physical and emotional abuse they
suffered at their father’s hands. The grandparents also discipline and care for the children
after their frequent and violent outbursts, often manifested through inappropriate sexual
activity and masturbation and aggressive behavior towards adults and each other. It is no
stretch to say that the grandparents provide not only the primary care for these children, but
in their “child-parent relationship,” also foster loving concern for the children’s best
interests. To deny the grandparents care of the children for failure to produce a petition
establishing a “child-parent relationship” disregards the statutory intent of furthering and
protecting the best interests of the children.
¶20 The Court also imputes misleading intentions to the grandparents’ appeal for
temporary emergency jurisdiction where none exist. The Court believes the grandparents,
in invoking the District Court’s temporary emergency jurisdiction, actually sought a custody
determination. The Court concludes that the grandparents’ failure to file a petition
establishing their “child-parent relationship” with the children prevents them from seeking
9
a custody determination. The fact that the mother filed a petition to intervene as a party in
support of the grandparents on April 14, 2004, should have alleviated the Court’s fear that
the grandparents were seeking an end run around the normal custody proceedings. The
District Court dismissed the grandparents’ petition on May 3, 2004, however, without ever
ruling on the mother’s attempt to intervene. Nevertheless, the Court ignores the
jurisdictional statutes under Title 40, Section 7, part 2, that provide a district court temporary
emergency jurisdiction in particular circumstances.
¶21 Under § 40-7-204(1), MCA, a district court possesses temporary emergency
jurisdiction if the child is present in the state or it is necessary in an emergency to protect the
child from abuse. In this instance, the record indicates that the father had emotionally and
physically abused both the children and their mother during their three-month stay in Maine.
The mother’s injuries were so severe that she remained hospitalized for three days after one
attack and obtained a protective order against the father. The Court downplays the severity
of the mother’s injuries when it refers to her “short hospital stay.” ¶ 3. In fact, the mother
spent three of her 108 days in Maine in the hospital.
¶22 The children not only witnessed their father’s violent attacks against their mother, but
also continued to suffer the effects of his violence towards them, as exhibited through their
post-traumatic stress disorders and aggressive and abusive behavior. Moreover, the
children’s therapist concluded from the children’s admissions concerning their father and his
abusive nature that it would be very detrimental for the children to return to Maine given the
anxiety and depression they exhibit.
¶23 Similarly, under § 40-7-201(a) and (b), MCA, the children failed to live in any one
10
state pertinent to the proceedings for more than six months prior to the filing so the District
Court had jurisdiction to make an initial child custody determination. The children stayed
in Maine only for three months before their father’s violence forced their mother to flee with
them to their grandparents. The family actually stayed at the house of another women and
her two children during their 108 days in Maine. The father, himself, could not satisfy
Maine’s own 6-month residency requirement when he filed for divorce from the mother on
August 29, 2003. Title 19A Me. Rev. Stat. Ann. § 901(a) (2004). At that point, he had
resided in Maine for fewer than four months.
¶24 Further, considerable doubt surrounds the validity of the Maine court’s decision of
November 7, 2003, to assume jurisdiction and make an initial child custody determination
considering the children’s brief stay in Maine and their abrupt departure on August 20, 2003.
Title 19A Me. Rev. Stat. Ann. § 1745 (2004). By contrast, substantial evidence regarding
the children’s care, protection, training and personal relationships remains within Montana,
including their mother, grandparents, therapists and school teachers, rather than in Maine,
where the children spent three months of their young lives. Section 40-7-201(b)(ii), MCA.
As such, any jurisdictional determination should have considered the children’s welfare and
their continuing improvements in the community.
¶25 The Court disregards the best interests of the children when it requires the
grandparents to file a petition evidencing a “child-parent relationship” before proceeding to
the merits of the case. The mother sought to intervene in this same proceeding before the
District Court dismissed the case and she surely had standing to bring the petition. See
Section 40-4-211(4)(a), MCA, and § 40-7-204(1), MCA.
11
¶26 In all matters involving minor children, we have consistently held that the primary
guide remains the best interests of the minor child. Firman v. Firman (1980), 187 Mont.
465, 468, 610 P.2d 178, 180. The Court’s opinion effectively abandons that principle. This
outcome seems particularly jarring in light of our admonition to district courts “to give
priority to the safety of victims of domestic violence when considering jurisdictional issues
under the UCCJEA.” In re Marriage of Stoneman, 2003 MT 25, ¶ 26, 314 Mont. 139, ¶ 26,
64 P.3d 997, ¶ 26.
¶27 I respectfully dissent.
/S/ BRIAN MORRIS
12