No. 90-476
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
IN RE THE MARRIAGE OF
PAMELA MAXWELL,
Petitioner and Respondent,
HOWARD MAXWELL,
Respondent and Appellant.
APPEA.L FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable John M. McCarvel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Susan L. Weber, Miller & Cook, Great Falls, Montana
For Respondent:
Antonia P. Marra, Bell & Marra, Great Falls, Montana
Submitted on Briefs: April 4, 1991
Decided: April 29, 1991
Filed:
Clerk
Justice John Conway Harrison delivered the Opinion of the Court.
Howard Maxwell appeals from a judgment of the District Court
of the Eighth Judicial District, Cascade County, Montana, Judge
John M. McCarvel presiding, granting Pamela Maxwell primary
physical custody of the couple's minor children. We reverse and
remand.
We frame the issues as follows:
1. Did the District Court err in failing to consider all of
the factors set forth in 5 40-4-212, MCA, in determining the
children's best interests?
2. Did the District Court err in refusing to allow certain
testimony of witnesses offered by the father?
The Maxwells were married eleven years and had three sons,
ages 9, 8, and 4, at the time of the dissolution. Two hearings
were held. On June 18, 1990, the District Court considered the
father's motions for temporary custody and a home study. The court
ordered temporary joint custody with time between the two parents
to be shared equally. The court also ordered a home study by the
Montana Department of Social and Rehabilitation Services.
The home study was conducted by the same social worker who
testified at the first hearing as a witness for the father. Names
were given to her by both the mother and father. The social worker
interviewed everyone on the list, except for three people whose
names were supplied by the mother: Candy Maxwell, the father's
sister-in-law, Sue Lundgren, the children's maternal grandmother
and Judy Lundgren. The social worker testified at the second
hearing that she had interviewed all persons said by the mother to
have had knowledge of the mother's parenting skills.
The Home and Family Assessment documented a history of the
mother's physical and verbal abuse directed at the children and
others. While most of the accounts came from members of the
father's family, others who were not members of the Maxwell family
corroborated their information.
The most damaging narratives came from the children
themselves, who innocently accepted the blame for their mother's
abuse and viewed the mother's abusive behavior as normal. As an
example, the oldest child said he was at fault for nosebleeds
caused by his mother's slaps to the head because he "forgot to
cover his nose with his arms."
The social worker, the only expert who testified in this case,
concluded:
I found little substantiating evidence to support Pam's
statements she has never abused her children, including
statements made by her own children as they described,
in what in my opinion is physical and emotional abuse.
I found no evidence to support that Howard is an abusive,
neglectful parent.
The social worker recommended that the father have sole custody and
that the mother be given I1reasonable visitation." The social
worker also urged the court to greatly limit visitation by the
mother until she completed a psychological evaluation to determine
the extent of the mother's needs for counseling. Counseling was
also recommended for the children and for the father to "resolve
issues in regards to his unhealthy relationship with Pam1' and
"development of parenting skills."
During the second hearing held July 27, 1990, the court heard
testimony from the mother; two of the individuals whom the social
worker had not interviewed, Candy Maxwell and Sue Lundgren; the
social worker; and the two oldest sons.
Candy Maxwell, sister-in-law of the father, testified that the
mother disciplined the children as any other mother would by
spanking them after three or four warnings. She said that the
mother had recently adopted a penny method, giving and taking away
money according to the children's behavior. Mrs. Maxwell stated
that she had not seen the father discipline the children because
she usually visited the mother while the father was working.
The maternal grandmother, Sue Lundgren, testified that,
contrary to what many members of the Maxwell family and others had
said, she had never heard the mother call the children obscene
names, scream at the children, or hit the children.
The eight and nine-year-old sons again told the judge in
chambers that they would rather stay with their mother because they
disliked the father's girlfriend. The court refused to hear
testimony from any of the father's witnesses whose interviews were
detailed in the home study.
The District Court awarded the parents joint custody with
primary custody to remain with the mother. In the findings of fact
and conclusions of law of the dissolution decree, except to mention
that a home study was ordered, the District Court did not address
the Home and Family Assessment or the social worker's
recommendations.
Did the District Court err in failing to consider all of the
factors set forth in 5 40-4-212, MCA, in determining the children's
best interests?
In child custody matters the primary consideration is the
child's best interest. Section 40-4-223, MCA. In determining the
child's best interest the court shall consider the following
factors :
(a) the wishes of the child's parent or parents as to
his custody;
(b) the wishes of the child as to his custodian;
(c) 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;
(d) the child's adjustment to his home, school, and
community;
(e) the mental and physical health of all individuals
involved ;
(f) physical abuse or threat of physical abuse by one
parent against the other parent or the child; and
(g) chemical dependency, as defined in 53-24-103, or
chemical abuse on the part of either parent.
Section 40-4-212, MCA. The district court can weigh additional
factors, such as "the parents1 ability to cooperate in their
parental roles, the child's relationship with both parents, and the
geographic proximity of the parents' residences." Lorenz v. Lorenz
(1990), 242 Mont. 62, 66-67, 788 P.2d 328, 331.
While the district court is not required to make specific
findings as to each factor, the "'essential and determining facts
upon which the District Court rested its conclusion1 must be
expressed. In re Marriage of Bloom-Higham (1987), 227 Mont. 217,
219, 738 P.2d 114, 115 (quoting In re Marriage of Keating (1984),
212 Mont. 462, 467, 689 P.2d 249, 251-252) . However, this does not
mean that the district court can ignore circumstances which may
endanger the children. Specifically, the District Court, in
stating its reasons for awarding primary physical custody to the
mother, overlooked 'Ithe mental and physical health of all
individuals involved1' and "physical abuse or threat of physical
abuse by one parent against the other parent or the child."
Sections 40-4-212(e) and (f), MCA.
Even if only part of the information in the Home and Family
Assessment is true, a great deal of evidence still exists to
support the social worker's conclusion that the mother emotionally
and physically abused the children. In contrast, none of the
persons interviewed or witnesses in court testified that the father
was abusive or a poor parent.
The District Court seemed to rely chiefly on the children's
testimony that they wished to stay with the mother. While the
children's wishes are a factor to be considered under § 40-4-212,
MCA, these wishes cannot be given priority when the evidence
indicates that the mother is unfit.
This policy is reflected by the rule in Montana that joint
custody is preferred, but "a finding that one parent physically
abused the other parent or the child is a sufficient basis for
finding that joint custody is not in the best interest of the
child." Section 40-4-224, MCA.
The standard of review in a child custody case is whether the
findings of the district court are clearly erroneous. The district
court's decision will be upheld unless a clear abuse of discretion
is shown. In re Marriage of Susen (1990), 242 Mont. 10, 13-14, 788
P.2d 332, 334.
In Bloom-Hiqham, the district court ordered an investigation
and report concerning custodial arrangements for the child pursuant
to 5 40-4-215, MCA, but did not indicate any consideration of the
report in reaching its final custody decision. We found the
court's failure to consider the report an abuse of discretion.
Bloom-Hiqham, 227 Mont. at 220, 738 P.2d at 115-116.
The District Court clearly abused its discretion in failing
to consider the home study and all of the factors of 5 40-4-212,
MCA, particularly the mother's mental health and abuse of the
children. Notably missing was any order of a psychological
evaluation of the mother to determine whether she was capable of
parenting the children or order of counseling for the mother and
other family members.
The judgment of t h e D i s t r i c t Court i s r e v e r s e d w i t h d i r e c t i o n
t o award p r i m a r y p h y s i c a l c u s t o d y of t h e t h r e e s o n s t o t h e f a t h e r .
I1
Did the District Court err in refusing to allow certain
t e s t i m o n y o f w i t n e s s e s o f f e r e d by t h e f a t h e r ?
S i n c e t h e c o u r t ' s d e c i s i o n h a s been r e v e r s e d , we need n o t
discuss t h i s issue.
W e concur:
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