97-411
No. 97-411
IN THE SUPREME COURT OF THE STATE OF MONTANA
1998 MT 1
IN RE THE MATTER OF THE CUSTODY
OF D.M.G. and T.J.G.,
Minor Children,
MICHEAL A. GREENE,
Petitioner, Respondent
and Cross-Appellant,
and
TAMMY J. PRICE,
Respondent and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Dorothy McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Kirk S. Bond, Helena, Montana
For Respondent:
Mark P. Yeshe, Helena, Montana
Submitted on Briefs: November 6, 1997
Decided: January 5, 1998
Filed:
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
¶1 In October 1996, Micheal A. Greene (Micheal) filed his petition for custody and
visitation of his children, D.M.G. and T.J.G., (hereafter sometimes collectively referred
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-411%20Opinion.htm (1 of 11)4/18/2007 1:27:58 PM
97-411
to as the children) in the First Judicial District Court, Lewis and Clark County. Following
an evidentiary hearing in March 1997, the court entered its decision on April 29, 1997.
This is an appeal by the children's mother, Tammy J. Price (Tammy), and a cross-appeal
by Micheal from the findings of fact, conclusions of law and order of the District Court.
The court awarded the parties joint custody of their children and provided that, in the
event Tammy returns to the Helena area, she is to have primary physical custody of the
children. However, if the parties continue to live in separate states, primary physical
custody shall be alternated between the parties on a two-year basis with Micheal having
custody commencing in August 1997. The court also provided for reasonable visitation
by the non-custodial parent. We reverse and remand for entry of a further custody order
consistent with this opinion.
BACKGROUND
¶2 Though they never married each other, the parties are the parents of twin sons,
born in November 1993. Micheal is employed full time in Helena with a local title
company. When the children were born, Tammy quit her employment, stayed home, and
became the boys' primary care-giver. When not at work, Micheal was actively involved
with the children as a parent. After the parties separated in the summer of 1995, the
children resided with Tammy and she received AFDC assistance. Micheal spent a good
deal of time with the children, continued to be an actively involved parent, paid child
support and provided health insurance. Tammy subsequently began working part time
at a grocery store and also completed clerical training courses. Micheal often cared for
the children when Tammy was at work or at class.
¶3 In July 1996, after informing Micheal the previous month that she was preparing
to leave Helena, Tammy moved to Salem, Oregon. Micheal was not happy about the
move, but did not try to stop Tammy from leaving. He testified that he believed the
move was only temporary. The record indicates that Tammy's change of residence was
prompted because of personal conflict between the parties and because of the availability
of better job opportunities and the nearness of family in Salem. Tammy testified that
since moving, she feels more in control of her life. She is permanently employed as a
shipping clerk. She is self-supporting and earns a salary of about $1,830 per month. Her
employment includes medical, dental, retirement and life-insurance benefits. She and the
children live in their own home. Her mother and step-father live in Salem and Tammy's
mother assists her with the children in the mornings before they go to pre-school and day
care. According to Tammy, the children are doing well in Salem. Micheal offered no
evidence to the contrary. Tammy has no desire to return to Helena. Micheal has
considered moving to Oregon to be near his children, but feels that his roots, family and
career are in Helena. Moreover, he states that he is uncertain that, were he to move,
Tammy would not change residences again. Tammy and Micheal both have extended
family in Helena; Micheal has no relatives in the Salem area.
¶4 Micheal's expert, social worker/clinical counselor Dr. Leta Levoti, testified that
generally it is in the best interests of the children of divorced or separated parents that
the children have frequent and consistent contact with both parents and, to that end, that
both parents should reside in the same community. She stated that occasional, longer
visits are not as desirable, and that children who have a healthy, frequent and continuous
relationship with both parents have the best chance for a healthy and well-adjusted
development. She testified that children who do not enjoy this sort of relationship may
suffer problems with regard to role-modeling, self-esteem, behavior, grieving,
fantasizing (about the missing parent), attachment and abandonment. Dr. Levoti also
testified, however, that when a parent has been the primary care-giver for most of a
child's life, it can be devastating to the child to be removed from that parent.
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-411%20Opinion.htm (2 of 11)4/18/2007 1:27:58 PM
97-411
¶5 In preparation for her testimony, Dr. Levoti met with Micheal and his mother for
1 hour and 30 to 45 minutes. She never interviewed Tammy; she never evaluated either
parent with the children; she did not evaluate the children's home; nor did she evaluate
the children or their social and emotional development. As indicated, Dr. Levoti opined
generally about the detrimental effects on children who do not have a good relationship
and frequent contact with both parents. She also testified as to the results of a study
which indicated that about one-third of the children of separated parents grow up well
adjusted, while one- third turn out "so-so," with the remaining one-third growing up
maladjusted. However, Dr. Levoti offered no testimony or opinion as to whether the
children in this case, D.M.G. and T.J.G., have suffered or would likely suffer any of the
detrimental effects to which she referred by reason of Micheal and Tammy living in
distant cities, nor did she have an opinion that Tammy was not acting in the children's
best interests when she moved to Salem.
¶6 The parties conceded, and the court found, that both Tammy and Micheal were fit
parents. The trial court also found that Tammy did not consider the children's best
interests in moving to Salem, but acted in her own personal interest and that she did not
search for or demonstrate that she could not find comparable employment in Helena. The
court rejected as being economically and logistically unrealistic Tammy's stated desire
that Micheal have a relationship with the children and visit the children frequently for
short periods. The court also found, however, that since their separation, the parties
have been able to mutually and amicably arrange reasonable visitation, and the court
expected that cooperation to continue in the future.
¶7 Based upon this evidence and this record, the District Court concluded that it was
in the children's best interests that both parents reside in Helena and that it was not in the
children's best interests that Tammy relocated to Salem, Oregon, or that she remain
there. The court determined that D.M.G.'s and T.J.G.'s best interests would be more
appropriately served if the children were to have continuing contact with both parents and
that this sort of contact could not reasonably occur if Tammy resided in Oregon and
Micheal resided in Helena. Accordingly, the court entered the order referred to above.
Tammy timely appealed, and Micheal timely cross-appealed.
ISSUES
¶8 Three issues are raised on appeal:
1. Does the District Court's order violate Tammy's constitutional right to
travel?
2. Did the District Court err by failing to apply the statutory presumption at
§ 40-4-212(3)(a), MCA?
3. Did the District Court err by alternating custody every two years?
¶9 This third issue is also the subject of Micheal's cross-appeal. We hold that
the trial court's order violates Tammy's constitutional right to travel; that the court erred
by failing to apply the statutory presumption at § 40-4-212(3)(a), MCA, in favor of
Tammy; and that the court erred in alternating custody every two years.
STANDARD OF REVIEW
¶10 We review a district court's findings of fact relating to child custody and visitation
matters to determine whether the findings are clearly erroneous. A finding is clearly
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-411%20Opinion.htm (3 of 11)4/18/2007 1:27:58 PM
97-411
erroneous only if it is not supported by substantial evidence, the trial court has
misapprehended the effect of the evidence, or a review of the record leaves this Court
with the definite and firm conviction that a mistake has been committed. In re Marriage
of Johnson (1994), 266 Mont. 158, 166-67, 879 P.2d 689, 694 (citations omitted). We
will not overturn the district court's decision unless a clear abuse of discretion is shown.
In re Marriage of Huotari (Mont. 1997), 943 P.2d 1295, 1297, 54 St.Rep. 884, 885
(citations omitted). Our review as to questions of law is plenary. In re Marriage of
Syverson (Mont. 1997), 931 P.2d 691, 700, 54 St.Rep. 32, 37.
DISCUSSION
I.
Does the District Court's order violate Tammy's constitutional right to travel?
¶11 Tammy argues that, in conditioning her continued primary physical custody of
D.M.G. and T.J.G. on the requirement that she relocate to Helena from her job, home
and extended family in Salem, the trial court violated her constitutionally protected
fundamental right of interstate travel. This right is recognized in a number of decisions
of the United States Supreme Court and in a decision of this Court. On the other hand,
Micheal maintains that, in the context of this custody dispute, Tammy's constitutional
right of interstate travel is qualified by the special obligations of custody, the state's
interest in protecting the best interests of the children and by the competing interests of
the non-custodial parent. Though raised by Tammy in the proceedings below, the trial
court did not address her constitutional argument in its decision. We conclude that the
legal positions of both parties, summarized above, are correct.
¶12 The right of interstate travel has repeatedly been recognized as a basic
constitutional freedom. Memorial Hospital v. Maricopa County (1974), 415 U.S. 250,
254, 94 S.Ct. 1076, 1080, 39 L.Ed.2d 306. This right is not mentioned in the federal
constitution. Nevertheless, it is a right so fundamental and elementary that it was
conceived from the beginning "to be a necessary concomitant of the stronger Union the
Constitution created." United States v. Guest (1966), 383 U.S. 745, 758, 86 S.Ct. 1170,
1178, 16 L.Ed.2d 239. As the Court described this right in Shapiro v. Thompson
(1969), 394 U.S. 618, 629, 89 S.Ct. 1322, 1328, 22 L.Ed.2d 600, overruled on other
grounds by Edelman v. Jordan (1974), 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662,
it is, among other things, the right "to migrate, resettle, find a new job, and start a new
life." And because the right of interstate travel is fundamental, a classification which
operates to penalize those persons who exercise this right must be justified by a
compelling state interest. Memorial Hospital, 415 U.S. at 258, 94 S.Ct. at 1082 (citing
Shapiro and Dunn v. Blumstein (1972), 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274).
The burden on the government to justify this compelling interest is a heavy one.
Memorial Hospital, 415 U.S. at 269, 94 S.Ct. at 1088.
¶13 Memorial Hospital, Dunn, and Shapiro held that various state statutory durational
residency requirements violated the Equal Protection Clause of the Fourteenth
Amendment by creating invidious classifications that impinged upon the right of interstate
travel. Memorial Hospital, 415 U.S. at 269, 94 S.Ct. at 1088; Dunn, 405 U.S. at 338,
92 S.Ct. at 1001; Shaprio, 394 U.S. at 627, 89 S.Ct. at 1327. Guest involved a
conspiracy to deprive African-Americans of their right of interstate travel based upon
racial considerations. Guest, 383 U.S. at 757, 86 S.Ct. at 1177. Those are not precisely
the sorts of legal restrictions which are at issue here. Nonetheless, Tammy correctly
points out that we have referred to this constitutional right of interstate travel and have
cited Shapiro in our own case law involving an issue of child custody. That case, In re
Marriage of Cole (1986), 224 Mont. 207, 729 P.2d 1276, involved a fact situation
wherein we affirmed the trial court's refusal to restrict the right of the primary custodial
parent to relocate the children out of state as part of a marital dissolution and joint
custody determination. We will discuss this case in more detail later in this opinion.
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-411%20Opinion.htm (4 of 11)4/18/2007 1:27:58 PM
97-411
¶14 In two other cases cited by Micheal, the change of residence issue was addressed
but not vis-a-vis the constitutional right of interstate travel. In re Marriage of Bergner
(1986), 222 Mont. 305, 310, 722 P.2d 1141, 1145, we ruled with no analysis
whatsoever, that on the issue of whether a parent has the right to change residence subject
to the best interests of the child, the answer is an "unqualified 'yes.'" We cited § 40-6-
231, MCA, which provides:
A parent entitled to the custody of a child has a right to change his
residence, subject to the power of the proper court to restrain a removal
which would prejudice the rights or welfare of the child.
In Bergner, the father, who was a joint custodian, sought modification of the custody
decree. He asked to be awarded physical custody on the basis that the children had been
integrated into his home after having been placed with him for an extended period of
time. Bergner, 722 P.2d at 1142. In addressing the change of residence issue, we noted
simply that the father was awarded custody of the children, not because the wife moved
to Texas, but because the girls' interest would best be served by allowing them to remain
in the family, school and community they had enjoyed for several years. Bergner, 722
P.2d at 1145.
¶15 Micheal also cites In re Marriage of Elser (1995), 271 Mont. 265, 895 P.2d 619,
overruled on other grounds by Porter v. Galarneau (1996), 275 Mont. 174, 911 P.2d
1143. In that case we affirmed the trial court's denial of the mother's motion for an
order permitting her to remove the children to a permanent residence out of state and the
court's granting the father's motion for an order designating him as the primary
residential custodian. Elser, 895 P.2d at 623. Again, the constitutional right of interstate
travel issue was not raised or addressed. We concluded simply that substantial evidence
supported the District Court's finding that the proposed relocation out of state was not in
the children's best interests, Elser, 895 P.2d at 623, again citing, among other authority,
§ 40-6-231, MCA. Elser, 895 P.2d at 621-22.
¶16 Finally, while not cited by either party, we also referred to this same statute in In
re Marriage of Johnson (1989), 238 Mont. 153, 155, 777 P.2d 305, 307, and in In re
Marriage of Paradis (1984), 213 Mont. 177, 181, 689 P.2d 1263, 1265. Again,
however, we did not address the change of residence issue in the context of the
constitutional right of interstate travel argument raised by Tammy here.
¶17 Since the constitutional issue was not raised in Bergner, Elser, Johnson or Paradis,
our decisions in those cases are of only marginal assistance in our resolution of this issue.
Furthermore, the case at bar presents a different factual twist from those in Bergner,
Cole, Elser, Johnson and Paradis. In those cases the residence change issue was raised
in the context of the court allowing or refusing to allow the custodial parent's relocation
from the children's home in Montana to another state. In those cases either there was a
previously existing custody decree for which modification was sought (Bergner, Elser,
Johnson and Paradis) or the court's decision was made as part of a marriage dissolution
action in which the parties' and children's home was in Montana at the time custody was
first determined (Cole).
¶18 The case at bar, however, involves a situation where the court is effectively
requiring that the children's primary residential custodian move to Montana from another
state where the custodian had already established her home and the children's home prior
to the initial custody determination and prior to the relocation issue being raised. As
noted later in this opinion, we conclude that the instant fact situation may impact the
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-411%20Opinion.htm (5 of 11)4/18/2007 1:27:58 PM
97-411
constitutional right of interstate travel to an even greater extent than would the facts in
our previously decided cases.
¶19 With those initial observations we turn to our decision in Cole, the one case
decided by this Court which is most clearly on point to our discussion here. Cole
involved the trial court's custody decision as part of a dissolution action. The parties had
two children, one of whom (Robby) was diagnosed with Down's Syndrome which
entailed learning and physical disabilities. Considerable testimony was presented at trial
concerning the custody arrangement which best suited Robby's special needs. The child's
teachers, therapist and trainer all testified in their particular areas of expertise and
experience with Robby and the court received recommendations from two court-appointed
investigators. The court awarded the mother custody of the children for roughly the
school year, and awarded the father custody for roughly two months in the summer.
Cole, 729 P.2d at 1278.
¶20 Among other things, the father challenged the trial court's refusal to restrict the
mother from relocating to Tampa, Florida, claiming that he would be effectively removed
from contact with his children for all but his two months of custody. The court
considered the children's best interest, the mother's testimony that there were advanced
employment opportunities in Tampa and testimony from Robby's counselors that Tampa
would likely provide a more complete line of services to disabled children. We
concluded that, on this evidence, the court's refusal was not an abuse of discretion. Cole,
729 P.2d at 1280.
¶21 We then went on to discuss the custody issue in the context of the constitutional
right of interstate travel, citing Shapiro. We noted the "delicate balancing" required of
courts in reconciling, on the one hand, the statutorily required best interests of the child,
which are most appropriately served by consistent and continuing contact with both
natural parents and, on the other hand, the custodial parent's fundamental right to travel.
We observed that
[t]he custodial parent who bears the burdens and responsibilities of raising
the child is entitled, to the greatest possible extent, to the same freedom to
seek a better life for herself or himself and the children as enjoyed by the
noncustodial parent . . . [but that] . . . the custodial parent's freedom is
qualified by the special obligations of custody, the state's interest in
protecting the best interests of the child and the competing interests of the
noncustodial parent.
Cole, 729 P.2d at 1280 (citing Cooper v. Cooper (1984), 491 A.2d 606, 613).
¶22 Next, addressing the right to travel interstate and citing Shapiro for the rule that
this, being a fundamental right, it can only be restricted in support of a compelling state
interest, we stated:
We believe that furtherance of the best interests of a child, by assuring the
maximum opportunities for the love, guidance and support of both natural
parents, may constitute a compelling state interest worthy of reasonable
interference with the right to travel interstate. [Citation omitted.] We
caution, however, that any interference with this fundamental right must be
made cautiously, and may only be made in furtherance of the best interests
of the child. To that end, we require the parent requesting the travel
restriction to provide sufficient proof that a restriction is, in fact, in the best
interests of the child.
Cole, 729 P.2d at 1280-81.
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-411%20Opinion.htm (6 of 11)4/18/2007 1:27:58 PM
97-411
¶23 Applying our rationale in Cole to the case at bar, we conclude that Micheal failed
in his burden to provide legally sufficient proof that the best interests of the parties'
children would be most appropriately served by effectively requiring Tammy to relocate
to Helena from Salem or, failing to do so, that she would lose her status as the primary
physical custodian of D.M.G. and T.J.G. for the next two years.
¶24 For the most part, the evidence pertaining to the children's best interest was
presented through the testimony of Micheal's expert Dr. Levoti. As pointed out above,
since she had not interviewed Tammy; since she had not evaluated either parent with the
children; since she had not evaluated the children's home; and since she had not evaluated
the children or their social and emotional development, her testimony was, necessarily,
limited to a general discussion about the detrimental effects on some children who, by
reason of separation or divorce, do not enjoy a good relationship and frequent, consistent
contact with both parents. Dr. Levoti offered no testimony or opinion as to whether the
children in this case, D.M.G. and T.J.G., have suffered or will likely suffer any of the
detrimental effects to which she referred, nor did she have an opinion that Tammy was
not acting in the children's best interests when she moved to Salem.
¶25 As regards the parties' testimony, neither Micheal nor Tammy disagreed with the
general proposition that it would be a good thing for their children if they both lived in
the same community so that the children could enjoy the sort of frequent, consistent
contact with each parent that Dr. Levoti recommended as being ideal. Nevertheless,
when it came to deciding which community that might be, each party tended to equate
the children's best interest with his or her own perfectly legitimate desire to maintain his
or her present life, home, community and career. Understandably, neither Tammy nor
Micheal wants to relocate and lose the life each has established and each parent believes
the best interests of the children will be better served if the other party is required to bear
the burden of moving.
¶26 In truth, on this record and aside from the generalities and probabilities expressed
by Dr. Levoti and each parties' own view of the children's best interest, there is virtually
no evidence that would lead one to the firm conclusion that the best interests of these
children would be most appropriately served by their living in Helena as opposed to
Salem or in Salem as opposed to Helena. Both parties are fit and concerned parents; both
have budding careers; each has the ability to make or has made a home for the children;
there is extended family in each community; Micheal visits the children to the extent he
is able and remains involved in their lives; and Tammy has not interfered in his efforts.
To assert on this evidentiary record that D.M.G. and T.J.G. have been or will be in some
way harmed or that their best interests will not be served because their parents happen
to live in distant cities with the result that they may not have the sort of frequent,
consistent contact with their father that may be the ideal, is pure speculation, unsupported
by any case-specific evaluation, testimony or evidence to that effect.
¶27 Assuming that neither Tammy nor Micheal is willing to relocate (and that appears
to be the situation facing the trial court), the bottom line is that the children are going to
have to live primarily either in Helena or in Salem with one parent or the other. In this
case, all things being, for the most part, equal, the question then becomes, can the court
effectively require Tammy to relocate to Helena? In this respect, the court has given
Tammy a true Hobson's choice--either she gives up her home, career, life and residence
in Salem and moves where she has chosen not to live, Helena, or she forfeits, for the
next two years, her status as the children's primary residential custodian, and the children
move to Helena, with the devastating impact attendant to their being removed from their
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-411%20Opinion.htm (7 of 11)4/18/2007 1:27:58 PM
97-411
mother. This, obviously, is not only a lose-lose situation for Tammy but also is an
unacceptable alternative for the children as well.
¶28 Moreover, as mentioned above, § 40-6-231, MCA, allows the court to "restrain"
a custodial parent's change of residence upon a showing that removal would prejudice the
rights or welfare of the child. Our prior cases have been decided in that context--i.e.,
the custodial parent's desire to relocate the children's existing home from Montana to
another state. Arguably, an even more difficult and serious problem is presented here.
Instead of preserving the stability of the home and community to which the children are
accustomed by restraining their relocation from their home state to another state, the
court order at issue here effectively requires the custodial parent to disrupt the stability
and continuity of the children's home in the state where they have lived for a substantial
portion of their young lives and to instead relocate and start over again in Montana.
Under these latter circumstances, and balanced against the children's best interests,
Tammy's right to live and to make her home where she chooses is even more compelling
than were she simply being restrained from starting a new life elsewhere.
¶29 While, as a general proposition, it may be preferable that separated or divorced
parents both live in the same community and that their children have frequent and
consistent contact with each parent, realistically that ideal cannot always be met. Our
courts must deal with the facts that a substantial number of this country's marriages end
in divorce; that a substantial percentage of our children are born out of wedlock; that ours
is a mobile society; and that many custodial parents must move to seek or maintain
employment, to avoid abusive relationships or to simply start a new life free from the
burdens and reminders of the past.
¶30 As Tammy argues on appeal, if the best interests of the child standard, without
more, always trumps the primary custodian's constitutional right to travel and to relocate
in another state, then courts can effectively order that all primary custodial parents live
in the same community as the child's non-custodial parent until the child reaches the age
of majority. In short, if the judicial decision to restrain the custodial parent from
relocating or, as here, to effectively require the custodial parent to return to Montana, is
based upon legitimate, case-specific reasons and evidence pertaining to the particular
child--i.e., the sort of case-specific evidence and reasons that we referred to in Cole
(which we held justified relocation)--then the state's interference with the custodial
parent's fundamental right of interstate travel may be justified in furtherance of the best
interests of the child. Cole, 729 P.2d at 1280-81. Absent that sort of case-specific
proof, however, there is no compelling state interest justifying a court ordering the
custodial parent to live in a state other than in the one he or she freely chooses.
¶31 As we pointed out in Cole, the custodial parent who bears the burdens and
responsibilities of raising the child is entitled, to the greatest possible extent, to the same
freedom to seek a better life for herself or himself and the children as enjoyed by the
noncustodial parent. In the context of this case and under our decision in Cole, Tammy
has
a fundamental, though qualified, constitutional right, in the words of Shapiro, "to
migrate, resettle, find a new job, and start a new life." Shapiro, 394 U.S. at 629, 89
S.Ct. at 1328. Moreover, given that Tammy enjoys this fundamental constitutional right,
Micheal bears a heavy burden to demonstrate a compelling interest on the part of the state
(here, the court) to interfere with this right. Memorial Hospital, 415 U.S at 269, 94 S.Ct
at 1088. While the children's best interests are appropriately balanced against this
fundamental constitutional right of interstate travel, Micheal was required to provide
sufficient proof that the courtþs effectively forcing Tammy to relocate to Helena was, in
fact, in D.M.G.'s and T.J.G.'s best interests. After carefully reviewing the record in this
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-411%20Opinion.htm (8 of 11)4/18/2007 1:27:58 PM
97-411
case, we conclude that the general, non-case-specific proof presented at trial on the best
interests issue, as discussed above, was legally insufficient to demonstrate the sort of
compelling state interest required as justification for interfering with Tammy's
fundamental constitutional right of interstate travel. Micheal did not sustain the heavy
burden of proof which the law imposed upon him.
¶32 Accordingly, we hold that the court abused its discretion in ordering that, for the
next two years, Tammy must forfeit her status as the children's primary custodian absent
her relocating to Helena with the children.
II.
Did the District Court err by failing to apply the statutory presumption at § 40-4-
212(3)(a), MCA?
¶33 Tammy argues that the trial court erred in failing to apply the statutory
presumption at § 40-4-212(3)(a), MCA, in her favor under the facts of this case. Micheal
counters that Tammy's argument must fail because the court designated her the residential
custodian; because the presumption was rebutted; and because the statute has been
repealed. Though Tammy cited this statute in her legal memorandum supporting her
proposed findings of fact and conclusions of law filed in the District Court, the court did
not address this argument, nor did it refer to this statute in its decision. Again, we agree
with Tammy.
¶34 Section 40-4-212(3)(a), MCA, enacted by the 1995 Legislature, provides:
The following are rebuttable presumptions and apply unless contrary
to the best interest of the child:
(a) Custody should be granted to the parent who has provided most
of the primary care during the child's life.
We have cited this statute in two previous decisions.
¶35 In In re Marriage of Abrahamson (1996), 278 Mont. 336, 924 P.2d 1334, we
affirmed the trial court's decision to grant the father's motion to modify the joint custody
provisions of the dissolution decree which designated the mother as the primary
residential custodian. The father's motion was prompted by the mother's change of
residence to Utah. Abrahamson, 924 P.2d at 1335. (Neither § 40-6-231, MCA, nor the
constitutional right of interstate travel was raised or mentioned in our opinion.) Our
opinion discloses that the record consisted of substantial, though conflicting, case-specific
evidence. On this record, we held that the court did not err in failing to adopt the
custody recommendations made by the parties' expert, Abrahamson, 924 P.2d at 1337;
that the court did not misapprehend the effect of certain proffered, conflicting, evidence;
and that the best interests of the parties' child required modification of the custody decree
by granting residential custody to the father, Abrahamson, 924 P.2d at 1338.
¶36 In response to the mother's argument that the district court erred in failing to apply
§ 40-4-212(3)(a), MCA, we concluded that, while not mentioning this statute in its
decision, the court did, in essence, apply it. We also concluded that the court determined
that the presumption had been rebutted and that, at most, the court committed harmless
error in not explicitly mentioning the statute. We interpreted and applied the statute in
the following fashion:
[The mother's] reliance on the District Court's finding that both parents are
fit to have custody is misplaced. Section 40-4-212(3)(a), MCA, does not
require the District Court to find that one parent is unfit to have custody.
Rather, it establishes a presumption in favor of the preexisting custodial
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-411%20Opinion.htm (9 of 11)4/18/2007 1:27:58 PM
97-411
parent, but only a rebuttable presumption. And as we recognized
previously in this opinion, there was substantial evidence upon which the
District Court based its decision to modify custody. The District Court
found that [the childþs] best interest required a modification of custody and
the designation of [the father] as the primary residential custodian. . . .
Our decision today does not render § 40-4-212(3)(a), MCA,
meaningless. District courts should be cognizant of § 40-4-212(3)(a),
MCA, and should take appropriate steps to ensure that it is, in all
applicable cases, adequately considered. We hold only that, based on
substantial evidence in this case, the statutory presumption was adequately
rebutted, and the District Court's failure to specifically mention § 40-4-
212(3)(a), MCA, does not constitute reversible error.
Abrahamson, 924 P.2d at 1338-39.
¶37 In In re Marriage of Tade (Mont. 1997), 938 P.2d 673, 54 St.Rep. 426, the
parties' dissolution decree provided for joint custody with the parties sharing residential
custody of their child on alternate weeks for the one year following the divorce. The
mother petitioned for modification to be the primary residential custodian on deciding
to move from the parties' home in Glasgow to attend MSU-Billings. Based upon the
evidentiary record, the trial court awarded residential custody to the father during the
school year and residential custody to the mother during the summer. We affirmed.
Tade, 938 P.2d at 674. Citing our admonition in Abrahamson, the mother claimed that
the court erred in failing to properly apply § 40-4-212(3)(a), MCA. We rejected her
argument, however, concluding that, based upon the court's findings (which were
supported by substantial evidence in the record), the statutory presumption had been
rebutted and that modification of the child's residential custody was made in his best
interests. Tade, 938 P.2d at 675-76.
¶38 Reading Abrahamson and Tade together, we conclude that Micheal's arguments
are not well taken and that, in the case at bar, the District Court erred in not considering
and properly applying the statutory presumption at § 40-4-212(3)(a), MCA, in favor of
Tammy.
¶39 While, here, the District Court did designate Tammy as the residential custodian,
it conditioned this designation for the following two years on her relocating to Helena--
i.e., her status as the primary residential custodian is forfeitable in favor of Micheal if
she chooses not to move. Moreover, while this case involved an initial legal custody and
residential custody determination by the court, the record reflects that from the twin's
birth until the present, Tammy provided most of the primary care to D.M.G. and T.J.G.,
especially following her move to Oregon. That is not to diminish the important and
conscientious involvement of Micheal in parenting his boys while they lived in Helena.
Nonetheless, based upon the evidentiary record here, it would be difficult not to
conclude, if one is required to label the parties as either primary or secondary care-
givers, that Tammy would fit the former designation. In fact, the District Court found
that after the children were born Tammy stayed home and was the children's primary
care-giver. Her status as primary care-giver has never changed.
¶40 Furthermore, unlike Abrahamson and Tade, there was not substantial evidence in
the record here to rebut the statutory presumption. As we pointed out in our discussion
of Issue 1, the record in this case is lacking any case-specific, substantial evidence that
the best interests of D.M.G. and T.J.G. will not be served by continuing to live with
their mother in Salem or that their best interests would be served by relocating to Helena
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-411%20Opinion.htm (10 of 11)4/18/2007 1:27:58 PM
97-411
without Tammy. In both Abrahamson and Tade, we affirmed the trial court's decision
to modify residential custody based upon the evidentiary record. The sort of case-
specific, substantial evidence that supported the district court's decisions in those cases
is simply not present in the case at bar.
¶41 Accordingly, we hold that the District Court erred in not applying the § 40-4-
212(3)(a), MCA, rebuttable presumption in favor of Tammy, and that the court abused
its discretion in not awarding her primary residential custody of D.M.G. and T.J.G.
III.
Did the District Court err by alternating custody every two years?
¶42 Both Tammy and Micheal argue on appeal that the trial court erred in ordering that
the children's primary physical custody be alternated every two years. At the outset, we
note that Micheal did not request this sort of relief in his petition nor did either party
approach this case before the trial court on the premise that custody should be shared on
a biennial basis. More importantly, the record is void of any evidence that would support
the District Court's conclusion that this sort of custodial arrangement would be in
D.M.G.'s and T.J.G.'s best interests. In fact, the evidence--at least in the general terms
in which it was presented by Dr. Levoti--is to the contrary. We conclude that, on the
record here, the court abused its discretion in requiring custody of the children to be
alternated between Micheal and Tammy every two years.
Summary
¶43 On the record here, we hold that in the context of her fundamental constitutional
right of interstate travel and in the absence of legally sufficient proof of a compelling
interest (in the form of D.M.G.'s and T.J.G.'s best interests) for interfering with this
right, the court abused its discretion in effectively requiring Tammy to relocate to
Montana or, in the alternative, to forfeit for the next two years her status as the children's
primary residential custodian. Moreover, we hold that the District Court erred and
abused its discretion in failing to award Tammy primary residential custody based on §
40-4-212(3)(a), MCA. Finally, there being no evidence in the record to support the trial
court's conclusion that the best interests of the children would be served by alternating
custody between Tammy and Micheal every two years, we hold that the court abused its
discretion in imposing this requirement on the parties.
¶44 Reversed and remanded for entry of a further custody order consistent with this
opinion.
/S/ JAMES C. NELSON
We Concur:
/S/ J. A. TURNAGE
/S/ W. WILLIAM LEAPHART
/S/ KARLA M. GRAY
/S/ WILLIAM E. HUNT, SR.
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-411%20Opinion.htm (11 of 11)4/18/2007 1:27:58 PM