(dissenting):
With due respect I am not able to join the majority opinion for the basic reason that fundamental procedural requirements have not been complied with in this case, and it is, therefore, I submit, impossible to know what the proper resolution of this case should be. Custody disputes often raise the most difficult and delicate issues, but that is all the more reason why it is important that the prescribed procedures be complied with.
In this case, the trial court applied a patently erroneous rule of law in its Conclusion of Law number two in ruling that “there is a presumption that a child of tender years should be in the custody of its mother unless the mother is unfit.” The majority admits that this standard is improper, but nevertheless holds that the opinion should be sustained because the trial court referred in Conclusion of Law number two to the proper standard, i.e., “the best interest of the child.” But there is not a single finding of fact which supports the conclusion that the best interest of the child requires custody to be given the mother. The findings of fact, to the extent that they bear on the issue, simply recite that both the plaintiff and the defendant are fit to have custody of the child; there are no findings of fact which deal with one parent or the other being the better, more nurturing parent. The majority’s opinion — apparently in recognition of the obvious void — attempts, improperly, in my judgment, to fill that void by referring to a portion of the transcript where the trial judge chastized the plaintiff for not having married the defendant to legitimate his son by marriage. Although the record is clear that the plaintiff had adopted his son by acknowledgment, and apparently had acted as a father in all respects, the majority nonetheless finds, on its own, that his “insensitivity to the mother” and “his failure to legitimate his son by marriage . .. [does] not appear to be unreasonable considerations of ‘past conduct and demonstrated moral standards’ ...” The trial court did not hold that those propositions determine, or even bear upon, what the “best interests” of the child were, and I think the majority errs in doing so.
In all events, the findings of fact and conclusions of law clearly disclose that it was the erroneous legal standard employed by the trial court which determined the award of custody, and not as the majority would have it, the best interests of the child. Conclusion of Law number two reads as follows:
2. Under case law in the State of Utah and under the common law of this State there is a presumption that a child of tender years should be in the custody of their [sic] mother unless the mother is unfit. In this case, no evidence has been presented that the mother is unfit to care for the child. Absent such a finding, custody should be awarded to the mother of the child. This conclusion is in addition to and is distinct from Conclusion of Law number 1 above. [Emphasis added.]
As stated above, there simply is no factual basis disclosed in the findings of fact which supports Conclusion of Law number one, and therefore the custody award must stand or fall on Conclusion number two.
Unfortunately, the only appropriate course of action in this case, as I see it, is to remand the matter for additional factual findings and application of the proper legal standard.