Czapranski v. Czapranski

No. 00-471

IN THE SUPREME COURT OF THE STATE OF MONTANA

2003 MT 14

IN RE THE MARRIAGE OF

JOHN CZAPRANSKI,

Petitioner and Respondent,

v.

JULIE CZAPRANSKI,

Respondent and Appellant.

APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark, Cause No. CDR-98-158
Honorable Thomas Honzel, Judge Presiding

COUNSEL OF RECORD:

For Appellant:

John L. Hollow, Attorney at Law, Helena, Montana

For Respondent:

Mark P. Yeshe, Attorney at Law, Helena, Montana

Jacqueline T. Lenmark, Attorney at Law, Helena, Montana
(Guardian ad Litem)

Submitted on Briefs: December 28, 2001

Decided: February 11, 2003

Filed:

__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 The Respondent, John Czapranski (John), filed a petition for

dissolution of his marriage to Appellant, Julie Czapranski (Julie),

in the First Judicial District Court, Lewis and Clark County, on

February 26, 1998. Following nine days of trial, the District

Court entered its Findings of Fact, Conclusions of Law and Decree

of Dissolution. Julie now appeals the District Court’s Final

Parenting Plan. We affirm.

¶2 We address the following issues on appeal:
¶3 1. Should this Court adopt a heightened standard of review
when reviewing a district court’s custody decision in a dissolution
proceeding?
¶4 2. Did the District Court err or otherwise abuse its

discretion when it ordered in its Final Parenting Plan that John be

the primary residential parent?

BACKGROUND

¶5 The parties were married on June 5, 1992, in Helena, Montana,

and have been separated since February 1998. At the time that John

filed the petition for dissolution, the parties had three children,

Zachary, born October 3, 1992; John, born October 10, 1994; and

Jacob, born June 20, 1996. Subsequent to initiating this appeal

and filing her brief, the parties’ son, Zachary, died while

competing in the Governor’s Cup race in Helena in June 2001. This

decision will not, therefore, address matters raised in Julie’s

brief concerning Zachary.

¶6 John filed his petition for dissolution on February 26, 1998.

On that same day, the District Court entered an ex parte order

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placing the children in the temporary custody of John and giving

him possession of the family home. The interim parenting plan

obtained by John also required that Julie’s contact with the

children be supervised. Also, at the end of February, Julie

entered into inpatient treatment at St. Patrick’s Hospital in

Missoula for a period of approximately three weeks. The

requirement that Julie contact with the children be supervised

ended in May 1998, and unsupervised visitation continued through

the time of trial.
¶7 The District Court conducted a trial over nine days during the

period of February 1999 through April 1999. It entered its

Findings of Fact, Conclusions of Law and Final Parenting Plan in

January 2000. In ordering the Final Parenting Plan, the District

Court did not follow the recommended plans of Dr. Phillip H.

Bornstein, Ph.D (Dr. Bornstein), or the guardian ad litem, both of

whom testified at trial and both of whose plans recommended sharing

time approximately 50/50, but with different lengths of time with

each parent. The District Court determined that neither

recommended plan was in the best interests of the children, but

rather, concluded that the best interests of the children would be

served by designating John as the primary parent and granting Julie

less than 50 percent of time with the children.

¶8 In so ordering, the District Court concluded that the

recommended plans demanded cooperation and communication between

the parties of which they are incapable. The District Court stated

that, “given the hostility between the parties, neither of the

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recommended plans would provide stability for the children,

particularly during the school year.”

¶9 Julie now appeals the District Court’s Final Parenting Plan,

challenging its appropriateness in light of the recommended plan of

Dr. Bornstein and the recommend plan of the guardian ad litem and

challenging the sufficiency of the evidence supporting the

parenting plan adopted by the District Court.

STANDARD OF REVIEW

¶10 Because the district court is in a superior position to weigh

the evidence, we will not overturn the court in child custody

matters unless we determine that there has been a clear abuse of

discretion. In re Marriage of Bukacek (1995), 274 Mont. 98, 105,

907 P.2d 931, 935 (citing In re Marriage of Bolt (1993), 259 Mont.

54, 58, 854 P.2d 322, 324). When reviewing the court’s

discretionary decision, we review its findings of fact to determine

whether they are clearly erroneous. In re Marriage of Fishbaugh,

2002 MT 175, ¶ 19, 310 Mont. 519, ¶ 19, 52 P.3d 395, ¶ 19 (citing

In re Marriage of McKenna, 2000 MT 58, ¶ 14, 299 Mont. 13, ¶ 14, 996 P.2d 386, ¶ 14).

¶11 A district court is required to determine child custody

matters in accordance with the best interests of the child, taking

into consideration a variety of statutory factors including, but

not limited to, the parents’ wishes, the interaction and

interrelationship of the child with the child’s parents, continuity

and stability of care, and whether the child has frequent and continuing contact with

both parents. Section 40-4-212(1), MCA; Fishbaugh, ¶ 20. While a court must consider

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the factors enumerated in § 40-4-212(1), MCA, it need not make specific findings

relating to each. Fishbaugh, ¶ 20 (citing McKenna, ¶ 15).

DISCUSSION

¶12 1. Should this Court adopt a heightened standard of review
when reviewing a district court’s custody decision in a dissolution
proceeding?
¶13 Julie argues that the above-stated standard of review should

be reexamined and heightened, requiring that a district court’s

discretion be bound by the statutory factors for determining the

best interests of the children as set forth in § 40-4-212, MCA

(1997) [currently codified under the same title, chapter and

section]. That statute provides in part:

40-4-212. Best interest of child. (1) The court shall determine the
parenting plan in accordance with the best interest of the child. The court
shall consider all relevant parenting factors, which may include but are
not limited to: (a) the wishes of the child's parent or parents; (b) the
wishes of the child; (c) the interaction and interrelationship of the child
with the child's parent or parents and siblings and with any other person
who significantly affects the child's best interest; (d) the child's
adjustment to 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; (g) chemical
dependency, as defined in 53-24-103, or chemical abuse on the part of either
parent; (h) continuity and stability of care; (i) developmental needs of the child;
(j) whether a parent has knowingly failed to pay birth-related costs that the
parent is able to pay, which is considered to be not in the child's best interests;
(k) whether a parent has knowingly failed to financially support a child that the
parent is able to support, which is considered to be not in the child's best
interests; (l) whether the child has frequent and continuing contact with both
parents, which is considered to be in the child's best interests unless the court
determines, after a hearing, that contact with a parent would be detrimental to
the child's best interests. In making that determination, the court shall consider
evidence of physical abuse or threat of physical abuse by one parent against the
other parent or the child, including but not limited to whether a parent or other
person residing in that parent's household has been convicted of any of the
crimes enumerated in 40-4-219(8)(b).

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¶14 Julie argues that this Court should adopt a standard of review

that would focus the analysis of a district court, requiring the

court to make specific findings pertaining to each factor listed in

the statute, findings regarding the developmental needs of the

children and findings regarding how the court-adopted plan meets

those needs, especially in light of any expert testimony or

proposed parenting plans submitted by experts. She states:

For instance, where case specific, expert testimony was

given regarding the needs of the children, it should be

incumbent upon the trial Court to refer to the evidence

of the needs of the children, to refer to any evidence

that rebuts those as being the needs of the children, and

to state the reasons why the Court disregarded those

needs or thought its plan addressed those needs.
Citing In re Marriage of Brown (1978), 179 Mont. 417, 587 P.2d 361,

Julie contends that this Court’s standard of review should require

a district court’s findings to include evidence as to the

children’s wishes and any reasons why a court adopted a Final

Parenting Plan that may be inconsistent with those wishes.

¶15 Citing a number of parent-child termination cases, Julie

contends that this Court uses a higher standard of review in

termination cases, requiring that a party seeking to terminate

parenting rights has a burden of proving by clear and convincing

evidence each of the statutory criteria. See, e.g., In re Custody

and Parental Rights of D.T., 2002 MT 232, ¶ 10, 311 Mont. 463, ¶

10, 56 P.3d 859, ¶ 10 (“[t]he party seeking to terminate an

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individual’s parental rights has the burden of proving by clear and

convincing evidence that the statutory criteria for termination

have been met”) (citation omitted). Julie questions that, if this

is true, “why should this Court’s standard of review permit a

District Court in a parenting plan proceeding specifically [sic]

address few or no criteria in MCA Section 40-4-212, and still be

upheld.”

¶16 John responds that the standard of review is higher in

termination cases because of the impact upon the parent-child

relationship and contends that the District Court in this case

cannot be held in error for following the law as it has been

consistently proclaimed by the Supreme Court.
¶17 The arguments proffered by each party in this matter reveal a

basic misunderstanding of this Court’s standard of review on appeal

as opposed to the burden of proof incumbent upon a party in the

district court by which the fact-finder must view and weigh the

evidence. Contrary to the parties’ assumptions and arguments, this

Court has not adopted a higher standard of review in parent-child

termination cases.

¶18 The requirement in a parent-child termination case that each

statutory criteria be proven by clear and convincing evidence is

not our standard of review on appeal, but rather, it is the burden

of proof incumbent on the party seeking to terminate parenting

rights in the district court. See In re A.C., 2001 MT 126, ¶ 36,

305 Mont. 404, ¶ 36, 27 P.3d 960, ¶ 36 (clarifying this Court’s

standard of review in parental termination cases). Although many

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states utilized this burden of proof in the district court prior to

1982, the “clear and convincing” burden was first adopted by the

United States Supreme Court in Santosky v. Kramer (1982), 455 U.S. 745, 102

S.Ct. 1388, 71 L.Ed.2d 599, and first adopted by this Court in Matter of J.L.B. (1979), 182

Mont. 100, 116-17, 594 P.2d 1127, 1136.

¶19 Our standard of review on appeal, however, is distinctly

different. Because a district court’s decision to terminate

parental rights is discretionary, this Court reviews a district

court’s decision to determine whether the court abused its

discretion. In re Custody and Parental Rights of D.T., 2002 MT 232, ¶ 9, 311 Mont.

463, ¶ 9, 56 P.3d 859, ¶ 9 (citing In re J.W., 2001 MT 86, ¶ 7, 305 Mont. 149, ¶ 7, 23 P.3d

916, ¶ 7). When reviewing a district court’s discretionary decision, this Court further

determines whether a district court’s findings of fact supporting termination are clearly

erroneous and we review the district court’s conclusions of law to determine whether they are

correct. In re Custody and Parental Rights of D.T, ¶ 9 (citation omitted). The argument

that this Court ought to adopt a higher standard of review in custody cases to be consistent

with our standard of review in parent-child termination cases is, therefore, misguided.

¶20 We conclude that Julie’s reliance on In re Marriage of Brown

is likewise misguided. This Court decided Brown in 1978 when

Montana law still provided that it was presumptively in the best

interests of the children for the mother to be granted custody of

children of “tender years.” See In re Marriage of Tweeten (1977),

172 Mont. 404, 409, 563 P.2d 1141, 1144. Although the presumption

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existed when Brown was decided, this Court in Brown, relying upon

Tweeten, recognized the presumption favoring the mother in

custodial matters was not necessarily conclusive and that each case

should be decided on its own facts without the use of “controlling

or conclusive presumptions.” Tweeten, 172 Mont. at 409, 563 P.2d

at 1144.

¶21 However, because the presumption did exist in Montana law, the

parties were required to proceed from that presumption and a burden

of proof was imposed requiring a party to rebut the presumption by

a preponderance of the evidence. Brown, 179 Mont. at 425, 587 P.2d

at 366. If a district court resolved the custodial matter contrary

to the statutory presumptions, specific findings were required

showing that one party successfully rebutted the presumption.

Absent these specific findings, even where review of the entire

findings made it clear that the district court considered the

presumption to have been overcome, a district court’s decision

required remand. As this Court stated in Brown:
Our review of the District Court’s findings . . .

convinces this Court the District Court considered the

presumption to have been overcome and found the [father]

to be the better person for custody. If the District

Court’s findings were complete, we would affirm the

custody portion of its judgment.

Brown, 179 Mont. at 425, 587 P.2d at 366. Montana’s statutory

scheme at the time of Brown thus required a district court to make

9
specific findings relevant to overcoming the statutory presumption

by the proper burden of proof.

¶22 Neither Montana’s current scheme nor the scheme in effect at

the time of this case contain a presumption favoring the mother as

a custodial parent, and there is thus no requirement that a court

include specific findings demonstrating rebuttal of the

presumption. For example, in Markegard v. Markegard (1980), 189 Mont. 374, 616

P.2d 323, acknowledging that the presumption that the mother is entitled to custody of a

child of tender years was no longer statutory, this Court stated that the presumption should

not exist in the absence of a particular statute so declaring.

We do not believe that there is a sound theory or rationale in support of a

judicial declaration that such a presumption exists. We further believe that this

presumption is outdated in light of the enactment of the Uniform Marriage and

Divorce Act in this state. The presumption serves only to confuse the parties

and to burden the courts. For this reason, we overrule Tweeten with respect to

the tender years presumption.

Markegard, 189 Mont. at 377, 616 P.2d at 325; accord Bier v. Sherrard (1981), 191 Mont.

215, 220, 623 P.2d 550, 552-53 (concluding that the district court was correct in not making

a finding as to a statutory preference for the mother as custodian). This Court’s decision in

Brown, therefore, does not require that a district court include specific findings regarding the

custodial wishes of the children as evidence to rebut the tender years presumption.

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¶23 Additionally, at the time this Court decided Brown, Section

48-334(1), R.C.M. 1947, made it discretionary for a district court

to conduct an interview of the children to ascertain their

custodial wishes. If a court conducted an interview with the child

or children to determine their wishes, the statute required that

the court cause the interview to be part of the record by making a

specific finding stating the wishes of the child or children.

Brown, 179 Mont. at 425-26, 587 P.2d at 366 (citing In re Marriage

of Kramer (1978), 177 Mont. 61, 580 P.2d 439). Specific findings

were required, however, only after a district court exercised its

discretion to conduct an interview with the child or children. The

district courts in both Brown and Kramer conducted in-chamber

interviews with the children and failed to record its findings,

requiring remand to conform to the mandate of the statute. Brown,

179 Mont. at 420, 587 P.2d at 363; Kramer, 177 Mont. at 69, 580

P.2d at 443.
¶24 Likewise, § 40-4-214(1), MCA (1997), granted the District

Court in this case similar discretion while including a similar

mandate:

The court may interview the child in chambers to

ascertain the child’s wishes as to residence and parental

contact. The court may permit counsel to be present at

the interview. The court shall cause a record of the

interview to be made and to be part of the record in the

case.

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The District Court, in its discretion, did not conduct such an

interview and was, therefore, not required by statute to cause a

record of the interview to be made. This Court’s decision in

Brown, therefore, does not support Julie’s argument that it must

make specific findings as to the wishes of the child or children in

all custody determinations, nor does it support adoption of a

heightened standard of review.

¶25 We likewise find Julie’s reliance on In re Custody of J.C.O.,

1999 MT 325, 297 Mont. 327, 993 P.2d 667, and Montana Environmental

Information Center, Inc. v. Montana Dept. of Transportation, 2000

MT 5, 298 Mont. 1, 994 P.2d 676 (MEIC), to be unpersuasive.

Justice Nelson’s concern in his special concurrence in Custody of

J.C.O. was that, without guidelines for a district court in

applying the best interest standard to the question of which

parent’s surname a child should bear, the court may be influenced

by a paternalistic notion prevalent in our society that, all things

being equal, a child should bear the surname of its father.

Custody of J.C.O., ¶¶ 15-16. Julie suggests that, without

narrowing a district court’s analysis as suggested in Justice

Nelson’s special concurrence in Custody of J.C.O., the current

statutory criteria, nominally applied, “meets [sic] out subtle

discrimination against the children’s need to have an independent

and meaningful relationship with both parents.” Julie, however,

does not set forth any suggested presumptions that she believes

holds sway over a district court directing its consideration away

from the needs of the children.

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¶26 The only evidence offered by Julie to support this alleged

preference by a district court for something other than the

children’s needs, or preference by a court for something other than

allowing the children an independent and meaningful relationship

with both parents, is that the District Court in this matter did

not adopt the parenting plan submitted by Dr. Bornstein nor did it

enter specific findings as to why it did not adopt Dr. Bornstein’s

plan. We fail to understand how a district court’s action of not

adopting a particular expert’s parenting plan is an example of a

preference or presumption in favor of something other than the

children’s needs, and Julie does not suggest a preference or

presumption against the children’s needs, either legal or societal,

that this Court need guard against. As noted, this Court has

explicitly rejected the tender years presumption favoring the

mother. Markegard, 189 Mont. at 377, 616 P.2d at 325; Bier v. Sherrard, 191 Mont. at

220, 623 P.2d at 553.

¶27 Rather, Julie’s argument that the District Court should be

required to enter more specific findings regarding the

developmental needs of the children is more appropriately

interpreted as expressing a difference with the District Court

regarding how much weight the expert testimony of Dr. Bornstein, as

well as his suggested parenting plan, should be given. Julie’s

argument is not, however, relevant to this Court’s standard of

review of a district court’s custody determinations.

13
¶28 In MEIC, we utilized an arbitrary and capricious standard of

review in considering whether the Montana Department of

Transportation (Department) correctly determined that it need not

prepare a supplemental Environmental Impact Statement in 1997 for

the proposed Forestvale Interchange along Interstate 15 in Helena.

MEIC, ¶ 12. However, this Court’s “arbitrary and capricious”

standard of review for agency determinations is inapplicable to

custody determinations.

¶29 Furthermore, Julie incorrectly contends that this Court in

MEIC reversed the district court “based in part on the District

Court not discussing the reevaluation of the proposed

alternatives,” thus implying that its findings insufficiently

evaluated the evidence. Rather, the District Court in MEIC

reviewed the Department’s decision under the same “arbitrary and

capricious” standard of review utilized by this Court. Thus,

notwithstanding our disagreement with, and reversal of, the

District Court’s decision in MEIC, we conclude that Julie’s

reliance on MEIC in urging this Court to adopt a heightened

standard of review is unpersuasive.
¶30 Based on the foregoing, we conclude that this Court’s current

standard of review remains appropriate when reviewing a district

court’s custody determinations and adoption of parenting plans in

dissolution matters.

¶31 Did the District Court err or otherwise abuse its discretion

when it ordered in its Final Parenting Plan that John be the

primary residential parent?

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¶32 Julie contends that the District Court’s findings were not

properly or sufficiently focused and that its ultimate custody

decision was not supported by substantial evidence. Arguing from

the framework of her suggested heightened standard of review, Julie

contends that the District Court had before it substantial evidence

relevant to numerous best interest factors under § 40-4-212, MCA

(1997), and that the District Court should be required to enter

findings on each factor where substantial evidence existed to

support a finding. Specifically, Julie argues that, while there

was ample evidence of the developmental needs of the children, the

wishes of the children, the lack of any chemical dependency on her

part as well evidence of her current good health, and that Julie

had selected a home that allowed her easy access to the children at

school, the District Court failed to make any specific finding on

the basis of this evidence prior to awarding primary custody to

John.
¶33 Since many of our prior decisions relied on by Julie are not

necessarily consistent with the statutory scheme in effect during

the custody dispute between Julie and John, it is appropriate to

review those cases in light of the statutes in effect at the time,

and subsequently, to review the sufficiency of the evidence in

support of the District Court’s judgment.

¶34 Julie relies on this Court’s decision in In re Marriage of

Stephenson (1988), 230 Mont. 439, 750 P.2d 1073, for the

proposition that it is reversible error for a district court to

fail to enter specific findings regarding the factors in § 40-4-

15
212, MCA, when determining the best interest of the children in

custody decisions. Stephenson was decided under Montana’s

modification statute rather than the best interest statute and

involved the termination of an already existing joint custody

arrangement. The modification statute, § 40-4-219, MCA (1987),

mandated that the lower court enter specific findings supporting

any modification that terminated a joint custody arrangement.

Stephenson, 230 Mont. at 445, 750 P.2d at 1077 (“where modification

equates to termination of the joint custody, the lower court should

proceed according to the requirements of § 40-4-219, MCA”) (citing

In re the Marriage of Gahm (1986), 222 Mont. 300, 302, 722 P.2d

1138, 1140).
¶35 The lower court terminated joint custody based upon the

“endangerment” provision of the modification statute, but did not

enter the specific findings mandated under subsection (1)(c) of §

40-4-219, MCA, which specifically required findings regarding “the

child’s present environment” as well as whether “the harm likely to

be caused by a change in the environment was outweighed by its

advantages to [the child].” Stephenson, 230 Mont. at 444, 750 P.2d

at 1075 (emphasis added). The lower court’s findings were based

upon evidence provided long prior to the hearing date, evidence

that did not support findings regarding the mother’s present

environment. Stephenson, 230 Mont. at 447, 750 P.2d at 1078.

Although the district court’s decision whether to modify an early

custody determination was discretionary, and thus, reviewed for

abuse of discretion, its modification, based on insufficient

16
findings and insufficient evidence, constituted an abuse of

discretion. See Stephenson, 230 Mont at. 447, 750 P.2d at 1078.

¶36 Additionally, when Stephenson was decided, Montana statute

contained a presumption that joint custody was in the best interest

of the child or children. See § 40-4-222, MCA (1987) (now

repealed). The party requesting termination of joint custody thus

carried a heavy burden and a district court’s decision to the

contrary needed to be based on substantial evidence and demonstrate

consideration that the presumption had been rebutted. “[T]he party

requesting modification under § 40-4-219, MCA, bears a heavy burden

because the statute’s policy is to ‘preserve stability and

continuity of custody for the children.’” Stephenson, 230 Mont. at

447, 750 P.2d at 1078 (citation omitted).
¶37 Stephenson is inapplicable to the instant situation where

Montana’s statutory scheme no longer contains a presumption in

favor of joint custody and where the best interest statute, as

opposed to the custody modification statute, contains permissive

factors that a district court may or may not consider on a case-by-

case basis when making initial custody determinations. See In re

Marriage of Bukacek (1995), 274 Mont. 98, 106, 907 P.2d 931, 936

(noting that although the best interests statute lists several

relevant factors that the district court must consider, the court

is not required to make specific findings which address each

factor, but must set forth the “essential and determining” factors

on which its determination is based).

17
¶38 Julie next relies on In re the Custody of D.M.G., 1998 MT 1,

287 Mont. 120, 951 P.2d 1377, for the proposition that it is

reversible error for a district court not to elicit or require

case-specific testimony regarding the needs of the children. In

Custody of D.M.G., this Court did not adopt such a rule nor is the

suggested rule supported by In re Marriage of Abrahamson (1996),

278 Mont. 336, 924 P.2d 1334, or In re Marriage of Tade (1997), 282

Mont. 449, 938 P.2d 673, the two cases relied on by this Court in

deciding Custody of D.M.G.
¶39 In both Abrahamson and Tade, the district court modified joint

custody provisions of the parties’ dissolution decrees,

effectively terminating joint custody and awarding residential

custody to the parent who had not provided the primary care during

the children’s lives. Both cases involved the application of § 40-

4-212(3)(a), MCA (1995) (now repealed), which stated that

“[c]ustody should be granted to the parent who has provided most of

the primary care during the child’s life.” We affirmed the

district courts in both cases based on the presence of case-

specific evidence in the record that rebutted the statutory

presumption and supported the courts’ decisions to terminate joint

custody. See Abrahamson, 278 Mont. at 343, 924 P.2d at 1338; Tade,

282 Mont. at 452-53, 938 P.2d at 675.

¶40 We reversed the district court in Custody of D.M.G., not

because the district court failed to elicit case-specific testimony

regarding the needs of the children, but because the district court

terminated joint custody in the absence of case-specific testimony

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in the record rebutting the statutory presumption for joint

custody. Custody of D.M.G., ¶ 40. The rule to be gleaned

therefrom, was not that district courts were thensforth required to

elicit testimony relevant to the needs of the children, but that a

custody determination contrary to the statutory presumption in §

40-4-212(3)(a), MCA (1995), would not stand in the absence of such

case-specific testimony. We therefore find Julie’s reliance on

Custody of D.M.G. unpersuasive.

¶41 Julie next returns to the parent-child termination statutes

and, citing to this Court’s decision in In the Matter of M.A.E.,

1999 MT 341, ¶ 18, 297 Mont. 434, ¶ 18, 991 P.2d 972, ¶ 18, argues

that to protect and preserve a natural parent’s rights and

fundamental liberty interests to care and custody of a child, a

parent’s right must be protected by fundamentally fair procedures.

Julie contends that the procedures for deciding custody decisions

in dissolution matters should mirror the procedures for deciding

termination cases, arguing that a district court making a custody

determination should be required to “address relevant individual

criteria of the statute, at least the needs and wishes of the

children, the parents’ present ability to meet those needs, and the

reasons supported by the record that the plan adopted by the Court

meets those needs.”
¶42 This Court previously discussed the variety of statutory

schemes pertaining to custody of children and termination of

parental rights, noting that Montana has at least five such

statutory schemes relevant to different types of situations. See

19
Girard v. Williams, 1998 MT 231, 291 Mont. 49, 966 P.2d 1155. In

Girard we noted that “although there is a degree of similarity as

to general subject matter, each statutory scheme has specific

purposes and procedures which must be followed to ensure that a

judgment or order in a given case is valid.” Girard, ¶ 17; also

see Matter of Guardianship of Aschenbrenner (1979), 182 Mont. 540,

553, 597 P.2d 1156, 1164 (noting that to protect the fundamental

rights and relationship existing between parent and child, district

courts must identify and adhere to the proper procedure and

standards to be used in the proceedings before them).
¶43 The constitutional implications of terminating parental rights

are severe, and the statutory scheme for terminating the parent-

child relationship reflects the high burden of proof required by

the party attempting to terminate the relationship and further

require a specific finding, by clear and convincing evidence, of

abuse and neglect. Section 41-3-609, MCA. A custody proceeding,

however, is not so harsh as a termination proceeding and does not

share the same constitutional implications, and neither do the

custody statutes require such a steep burden of proof. Thus, the

best interest statute, § 40-4-212, MCA, requires that a district

court “shall” determine the parenting plan in accordance with the

best interest of the child or children by considering all relevant

factors which “may include but are not limited to” the factors

listed in the statute. The factors which are relevant, however,

may be different on a case-by-case basis and, thus, may be

different for each custody determination.

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¶44 We conclude that, in light of the statutory scheme for making

custody determinations in dissolution proceedings, it would be

inappropriate to arbitrarily require that one or two factors be

more heavily considered than the other permissive, non-exclusive

factors contained in the best interest statute, § 40-4-212, MCA.

Each custody determination must be decided on a case-by-case basis

and different factors will be relevant in making such

determinations. It would thus be inappropriate, especially in

light of the fact that the factors listed in § 40-4-212, MCA, are

permissive and non-exclusive, to require a district court to

analyze custody determinations in a similar manner as required by

the statutory scheme for terminating a parent’s rights.
¶45 Having determined that this Court’s standard of review is

appropriate and that a district court is not required to heavily

weigh any best interest factor above another, we now turn to

Julie’s challenge that the District Court’s custody determination

is not supported by sufficient evidence.

¶46 The District Court determined that neither the parenting plan

of Dr. Bornstein nor the parenting plan offered by the guardian ad

litem, both of which offered shared custody arrangements, were in

the best interests of the children. The District Court concluded

that the parties would not be able to cooperate and communicate

with each other regarding the best needs of the children due to

their mutual hostility, and thus concluded that neither recommended

plan provided stability for the children, particularly during the

school year.

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¶47 Julie contends that there existed no evidence that the

children needed to be in one home during the school year nor any

evidence that anything other than shared parenting is in the best

interests of the children, and that, to the extent that the

District Court relied upon this general notion of the need for

stability during the school year, it erred. Additionally, as

previously mentioned, Julie argues that the District Court failed

to address substantial evidence before it, including expert

testimony regarding the developmental needs of the children and

Julie’s lack of chemical dependency and change of residence to be

closer to the children’s school.

¶48 As previously noted in our standard of review, a district

court’s custody determination is a discretionary decision, and this

Court will not disturb the decision when it is supported by

substantial evidence. In re Marriage of Bukacek (1995), 274 Mont.

98, 105, 907 P.2d 931, 935 (citing In re Marriage of Bolt (1993),

259 Mont. 54, 58, 854 P.2d 322, 324). While a district court must

consider the best interest factors enumerated in § 40-4-212(1), MCA, it need not make

specific findings relating to each. Fishbaugh, ¶ 20 (citing McKenna, ¶ 15); see also

Bukacek, 274 Mont. at 106, 907 P.2d at 936 (noting that a district court is not required to

make specific findings which address each factor, but it must set forth the “essential and

determining” factors on which its determination is based).

¶49 In In re Marriage of Tahija (1992), 253 Mont. 505, 833 P.2d

1095, this Court affirmed the district court’s joint custody

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determination even though it erred in finding that the parties

accepted and agreed upon a joint custody arrangement, stated no

reasons for adopting one plan over another, and did not address

numerous issues raised by the father at trial. Tahija, 253 Mont.

at 507-08, 833 P.2d at 1096. Citing to In re Marriage of B.H.J.

(1988), 233 Mont. 461, 463, 760 P.2d 753, 754, we stated that “this

Court will not disturb a visitation schedule ordered by the

District Court when it is supported by substantial credible

evidence.” Tahija, 253 Mont. at 507, 833 P.2d at 1096. “While the

District Court erred in finding the visitation plan was adopted and

accepted by both parties, its adoption of [the mother’s] proposed

plan was within its discretion.” Tahija, 253 Mont. at 508, 833

P.2d at 1096.
¶50 Likewise, the District Court in the instant case was not

required to address every issue raised at trial by Julie nor to

address in specific detail all of the evidence submitted. Its

decision will be upheld if it is supported by substantial evidence

and if its findings set forth the essential and determining factors

for its custody determination.

¶51 In its Conclusion of Law # 3, the District Court concludes

that:
Although the children love both parents and are attached
to them, the Court concludes that a shared custody
arrangement, whether it be on a two-week/two-week or six-
month/six-month basis, is not in the best interests of
the children. Any such plan demands that the parents
cooperate with each other and be able to communicate with
each other regarding the needs of the children. The
parties, however, are not capable of doing this.
Furthermore, given the hostility between the parties,
neither of the recommended plans would provide stability
for the children, particularly during the school year.

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¶52 In its findings of fact, the District Court set forth the

findings upon which its custody decision is based. The court found

that Julie had a history of substance abuse prior to the marriage

and that, although maintaining sobriety through much of the

marriage, she began using marijuana again in the Fall of 1997 and

used it fairly regularly after that. The court also found that

Julie threatened to kill herself on a number of occasions and was

hospitalized in the support center at St. Peter’s Hospital for

suicidal ideation and depression in January 1998 and later, in

March 1998, underwent inpatient chemical dependency treatment at

St. Patrick’s Hospital in Missoula. Following her inpatient care,

she began counseling in May 1998, and her counselor at that time

believed that Julie had stabilized herself and was no longer at

risk of committing suicide. At trial, Dr. Bornstein agreed that

Julie was no longer a risk to herself.

¶53 The District Court found that there was a great deal of

hostility between the parties during transfers of the children, due

primarily to the fact that during the transfers, Julie had made

inappropriate accusations, had used vulgar language, and has had

inappropriate physical contact with both John and another person,

usually while the children were present.

¶54 The District Court further found that Julie engaged in highly

inappropriate conduct on a number of occasions during trial,

including sarcastic comments while John was testifying and running

from the courtroom and making vulgar comments while John’s sister

was testifying.

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¶55 The District Court further states in its findings that it

considered the custody recommendations of the guardian ad litem as

well as the guardian’s recommendation that Julie complete a course

for victims of domestic violence and in anger management and

provide evidence of her continued sobriety, regular attendance of

AA meetings and continuing therapy.

¶56 Regarding the expert testimony of Dr. Bornstein and his

recommended parenting plan, the District Court noted that the

recommended plan was premised on the condition that Julie remain

faithful to her recovery program, including following all the

recommendations made as part of her discharge from St. Patrick’s

Hospital.
¶57 The above findings, although not discussing whether Julie was

or was not successful in complying with the recommendations of Dr.

Bornstein, and thus, not a model of completeness, nonetheless set

forth the essential and determining factors that the District Court

used in making a custody determination that it deemed to be in the

best interests of the children. The record reflects that Dr.

Bornstein did not believe that his recommended parenting plan was

the only plan that would serve the best interests of the children:
[B]elieve it or not, the plan is not all that important.
I truly believe that there are a wealth of plans that
can be implemented that will serve the best interests of
the children . . . . So it’s not as if I’m here today
solely wedded to the plan that we proposed.
When the District Court inquired of Dr. Bornstein whether he

believed that the children needed a “base of operation” while in

school, Dr. Bornstein responded:

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 The only point I would add is I tend to agree, children
need a base of operations and provide [sic] some sense of
security. But there’s no evidence to indicate that they
fare poorly when they have two bases of operations, when
they do a classic mom’s house, dad’s house.
¶58 Upon review of the record, we find that the District Court’s

findings are supported by substantial evidence and are, therefore,

not clearly erroneous. The findings themselves, although not a

model of completeness, set forth the essential and determining

factors upon which the District Court based its custody

determination. The District Court considered the children’s

adjustment to home and school, the mental health and history of

chemical dependency of Julie, the continuity and stability of care

and the interaction and interrelationship of the parents and the

effect that this interaction has had on the children.

¶59 As the District Court’s findings are supported by substantial

credible evidence and the findings include the essential and

determining factors on which its custody determination is based, we

conclude that the Court did not abuse its discretion in awarding

primary custody to John.
¶60 The decision of the District Court is affirmed accordingly.
/S/ JIM RICE

We concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ TERRY N. TRIEWEILER
/S/ JIM REGNIER

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