No. 95-512
IN THE SUPREME COURT OF THE,STATE OF MONTANA
1996
IN THE MATTER OF THE ESTATE,
CONSERVATORSHIP, AND
GUARDIANSHIP OF K.M.,
Kr.O., and Ka.O., Minor Children.
APPEAL FROM: District Court of the Ninth Judicial District,
In and for the County of Toole,
The Honorable Marc G. Buyske, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Robert G. Olson, Frisbee, Moore & Olson, Cut Bank,
Montana
For Respondents:
John Doubek, Small, Hatch, Doubek & Pyfer, Helena,
Montana; Scott Swanson, Pendroy, Montana; Terry1
Healy, Healy, McKay & Vogel, Cut Bank, Montana
Submitted on Briefs: November 7, 1996
Decided: December 17, 1996
Justice William E. Hunt, Sr., delivered the Opinion of the Court.
The grandparents of K.M., Kr.O., and Ka.0. appeal the decision
of the Ninth Judicial District Court, Toole County, concluding that
they lack the necessary standing to move for custody of their
grandchildren pursuant to 5 40-4-211, MCA. We affirm.
The sole issue presented on appeal is whether the District
Court erred in concluding that the grandparents of K.M., Kr.O., and
Ka.0. lack the requisite standing to petition for custody of the
children pursuant to § 40-4-211, MCA.
The children at issue in this case are the children of Lora,
the grandparents' daughter. Lora gave birth to K.M. in 1990.
K.M.'s father, Jeff K., initially denied paternity. Once paternity
was established, however, Jeff paid court-ordered child support to
the Child Support Enforcement Division of the Montana Department of
Social and Rehabilitation Services. Although he fulfilled his
legal obligation to contribute to the support of K.M., Jeff never
exercised his right to visitation with his daughter until after
Lora had died and the grandparents had moved for custody of the
children. Jeff and Lora were never married.
In 1992, Lora married Thorn 0. That same year, Kr.0. was
born. In 1993, Ka.0. was born. The grandparents characterize Thorn
and Lora's marriage as "stormy, at best." The couple apparently
separated several times for short periods, during which Lora and
the children would move back to the grandparents' home until she
and Thorn reconciled.
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In July 1994, Thorn, Lora, and the three children moved to
Arkansas, Thorn's home state. In January 1995, Thorn left for
California, leaving Lora and the children in Arkansas. The
grandparents contended that Thorn abandoned Lora and the children
when he left for California; Thorn contended that his move was a
precursor to the entire family's relocation, but that he and Lora
had agreed that she and the kids should not come to California
until he had found work.
Shortly after, Lora moved back to Montana from Arkansas. She
and all three children again lived with the grandparents and Lora
applied to various Montana colleges. At some point she learned
that she had received a grant to attend school in Great Falls. In
MaYI 1995, Lora went down to California, leaving the children with
the grandparents. The grandparents contended she was returning
Thorn's truck to him and that, by this time, the marriage was
essentially over. Thorn contended that Lora came down to California
to pick him up, and that they planned to move the family to Great
Falls while she went to school.
On May 30, 1995, while on their way back to Montana, Lora and
Thorn were involved in a car accident and Lora was killed. The
children were at their grandparents' home at the time of the
accident. On June 5, 1995, the grandparents moved for their
appointment as temporary guardians of the children, which motion
the District Court granted. The grandparents subsequently moved
for custody of the children pursuant to § 40-4-211, MCA; both Jeff
and Thorn opposed this motion. After a hearing, the District Court
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concluded that the grandparents did not have standing to move for
custody of the children and, accordingly, dismissed their petition.
The grandparents appeal.
Following the death of their daughter, the grandparents moved
for custody of the children pursuant to § 40-4-211, MCA, which
addresses who may institute a child custody proceeding.
Section 40-4-211, MCA, provides in part:
A child custody proceeding is commenced in the district
court . . . by a person other than a parent, by filing a
petition for custody of the child in the county in which
he is permanently resident or found, but onlv if he is
not in the uhvsical custody of one of his uarents.
Section 40-4-211(4) (b), MCA (emphasis added). The grandparents
contend that they have standing to move for custody of their three
grandchildren because the children were not in the physical custody
of their fathers when the petition was filed. Rather, the
grandparents contend, the children had been in their physical
custody for at least five months before Lora's death.
We reject the grandparents' contention that they had physical
custody of the children before Lora's death because the children
were living with them. The children were living with Lora, their
mother, who happened to live with her parents at that time.
Therefore, it is uncontroverted that Lora had physical custody
of all the children and that she never relinquished custody to
anyone. Just because the children, the mother, and the
grandparents lived in the same household for some months cannot
serve to vest the grandparents with any right to custody of the
children, any more than sharing a household with any person, be it
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a boyfriend, relative, or roommate, will somehow create in that
person a right to seek custody of the child of another.
The grandparents assert that while they may not have had
physical custody, neither did the fathers at the time of Lora's
death. The grandparents contend it is the lack of parental custody
which gives them standing under § 40-4-211(4) (b), MCA. Again, we
disagree.
Physical custody is not limited to actual possession of a
child. Rather, the phrase "relates to the custodial rights
involved in the care and control of the child." Henderson v.
Henderson (19771, 174 Mont. 1, 5, 568 P.2d 177, 179 (citation
omitted). In Henderson, this Court equated the right to custody
with actual physical custody. In re Marriage of Schultz (19791,
184 Mont. 245, 247, 602 P.2d 595, 596. See also Webb v. Charles
(Ariz.App.1980), 611 P.2d 562, 565; In re Custody of Peterson
(111.19861, 491 N.E.2d 1150, 1153. When one parent dies, the
surviving parent automatically assumes the right to custody of the
couple's children. Schultz, 602 P.2d'at 596.
Given the automatic transfer of the right to custody from the
deceased custodial parent to the surviving parent at the moment of
the former's death, a third party must show far more than mere
physical possession of the child in order to establish standing
under 5 40-4-211, MCA. The third party must demonstrate that the
surviving parent has voluntarily relinquished his or her right to
physical custody & present evidence to show the duration of the
separation between parent and child.' In re Custody of R.R.K.
(19931, 260 Mont. 191, 198, 859 P.2d 998, 1004.
The grandparents argue that Jeff and Thorn both voluntarily
relinquished their right to the care and custody of their
respective children. They contend Thorn relinquished his right to
custody of Ka.0. and Kr.0. by abandoning Lora and the children in
Arkansas when he moved to California. They contend Jeff
relinquished his right to custody of K.M. because he never
exercised his right to visitation with her until after Lora's
death.
Thorn testified that he left Lora and the children in Arkansas
with Lora's agreement and consent. He claimed that they agreed
that he should try to find work in California before sending for
her and the children. He further testified that, far from
abandoning the family, he intended to either bring them to
California or to rejoin them all in Montana. This testimony is
supported by the fact that he was returning to Montana with Lora
when the accident occurred. While the grandparents challenged his
testimony, they did not present evidence sufficient to convincingly
prove that he abandoned his children and thereby voluntarily
relinquished his right to their custody in the event of their
mother's death.
While Jeff did not exercise his right to visitation with his
daughter K.M. until after Lora's death, he fulfilled his legal
obligation to contribute to her support throughout that time. The
grandparents presented no evidence showing that he voluntarily
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relinquished his right to K.M.'s custody except for his failure to
exercise visitation. That, in and of itself, is insufficient to
divest him of his right to parent his child.
As soon as they became aware of the grandparents' petition for
custody following Lora's death, both Jeff and Thorn stepped forward
and asserted themselves to be ready and willing to care for their
children. Because there was no showing that either father had
voluntarily relinquished his right to custody of his respective
child or children, the grandparents did not have standing to
petition for custody pursuant to § 40-4-211, MCA. The decision of
the District Court is affirmed.
We Concur:
Chief Justice
Justices
Justice W. William Leaphart, specially concurring
I concur with the Court's conclusion that the grandparents do
not have standing as persons "other than a parent" to petition for
adoption under § 40-4-211(4) (b), MCA, since the children, although
physically present with the grandparents when their mother died,
were nonetheless in the "custody" of their surviving fathers.
In specially concurring, however, I note that respondent Jeff
K. argued that § 40-4-221(2) (e), MCA:
mirrors the previously existing law embodied in Section
40-4-211(4) (b) M.C.A., giving a non-parent similar
standing in a non-death situation, "but only if [the
child] is not in the physical custody of one of his
parents."
Jeff K.'s argument fails to recognize that there is a substantive
distinction between §§ -211 and -221 with regard to the standing
issue presented in this case. Section 40-4-221, MCA, provides
that, upon the death of a parent granted custody of a child,
custody passes to the surviving noncustodial parent unless one or
more of the parties named in subsection (2) requests a custody
hearing. Included in the list of persons who may request a custody
hearing is "any other person if that person has actual physical
control over the child[.l" Unlike 5 40-4-211(4) (b), MCA, which
focuses on physical "custody," § 40-4-221(2) (e), MCA, focuses on
physical "control." Certainly the grandparents in this matter had
physical control of the children. Accordingly, they would have
standing to request a custody hearing under § -221. The ultimate
decision as to an of award custody under § -221 would be controlled
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by our recent decision in In re A.R.A. (Mont. 1996), 919 P.2d 388,
392, 53 St.Rep. 543, 545-46.
Justice Y
Chief Justice J. A. Turnage and Justice James C. Nelson join in the
foregoing special concurrence.
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