Kulstad v. Maniaci

October 6 2009

DA 08-0483

IN THE SUPREME COURT OF THE STATE OF MONTANA

2009 MT 326

MICHELLE KULSTAD,

Plaintiff and Appellee,

v.

BARBARA L. MANIACI,

Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DR 07-34
Honorable Edward P. McLean, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Austin Nimocks (argued), Amy Smith, Alliance Defense Fund, Scottsdale,
Arizona
Linda Osorio St. Peter, Attorney at Law, Missoula, Montana

For Appellee:

Elizabeth L. Griffing (argued), ACLU of Montana Foundation, Missoula,
Montana
Susan G. Ridgeway, Attorney at Law, Missoula, Montana
Kevin H. Lewis, Howard, Rice, Nemerovski, Canady, Falk & Rabkin, San
Francisco, California

For Amicus Montana Family Foundation:

Patrick Flaherty, The National Legal Foundation, Virginia Beach, Virginia

For Amicus Pacific Justice Institute:

Peter D. Lepiscopo, Lepiscopo & Morrow, San Diego, California

For Amicus National Assn. of Social Workers (NASW); NASW, MT Chapter;
and American Academy of Pediatrics:
 P. Mars Scott and Thorin A. Geist, Attorneys at Law, Missoula, Montana
Luann Simmons and Sara Jeruss, O’Melveny & Myers, San Francisco,
California

For Amici Law School Professors:

James P. Reynolds, Reynolds, Motl and Sherwood, Helena, Montana

For Amicus Northwest Women’s Law Center:

Daniel P. Semmens, Dorsey & Whitney, Missoula, Montana

Argued: April 17, 2009

Submitted: April 28, 2009

Decided: October 6, 2009

Filed:

__________________________________________
Clerk

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Justice Brian Morris delivered the Opinion of the Court.

¶1 Far too often this Court faces a situation in which minor children have no adult fit to

parent them. See e.g. In re E.D., 2008 MT 216, 344 Mont. 228, 186 P.3d 1283; In re M.P.,

2008 MT 39, 341 Mont. 333, 177 P.3d 495; In re Custody and Parental Rights of A.P., 2007

MT 297, 340 Mont. 39, 172 P.3d 105. This case presents the increasingly unusual situation

of two adults fit to parent minor children, L.M. and A.M. The District Court awarded a

parental interest in the minor children to Appellee Michelle Kulstad (Kulstad) over the

objection of the Appellant Barbara L. Maniaci (Maniaci). The court also awarded Kulstad an

interest in personal and real property. We affirm.

¶2 Maniaci presents the following issues on appeal:

¶3 Whether the court’s application of §§ 40-4-211 and 40-4-228, MCA, to support

Kulstad’s claim of a parental interest violates Maniaci’s fundamental constitutional rights as

a parent.

¶4 Whether the court properly awarded Kulstad a parental interest.

¶5 Whether the court properly awarded Kulstad personal property and a property interest

in the parties’ home.

PROCEDURAL AND FACTUAL BACKGROUND

Background

¶6 Maniaci moved to Clinton, Montana, in late 1994 or early 1995. Maniaci and Kulstad

met in Montana in late 1995. Maniaci lived in a trailer on her sister’s property and worked

part-time as a chiropractor out of her sister’s home. Kulstad lived in Seattle, Washington.
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She worked in Seattle on business ventures and supported herself with her accumulated

assets. The parties’ relationship progressed to the point that they began staying with each

other at their respective homes. Kulstad eventually moved to Montana in 1996 to live with

Maniaci.

¶7 Kulstad and Maniaci exchanged rings on March 18, 1996. Kulstad and Maniaci wore

the rings until the fall of 2006. Maniaci also gave Kulstad three anniversary cards. Maniaci

represented Kulstad as her “partner” on numerous occasions. The parties attended couples

counseling in 2002, 2003, and 2006. The parties’ mutual friends regarded them as domestic

and intimate partners, and later as co-parents.

¶8 Kulstad supported the parties primarily with her accumulated assets from 1996 to

2001. Kulstad and Maniaci had a joint automobile insurance policy naming each of them as

insureds. Maniaci added Kulstad to the homeowner’s insurance policy. Maniaci executed a

living will that authorized Kulstad to make her end-of-life decisions.

Parental Interest

¶9 Kulstad and Maniaci periodically discussed the possibility of co-parenting a child.

L.M. came unexpectedly to them in mid-February 2001 when Maniaci’s chiropractic patient,

Camilla Eddy (Eddy), inquired whether Kulstad and Maniaci had an interest in adopting her

great grandson, who lived in Anaconda. Eddy believed that L.M.’s mother provided

inadequate care. A couple of days later, Eddy, fearing for L.M.’s life, contacted the parties.

Kulstad and Maniaci drove to Anaconda where L.M.’s natural mother relinquished custody

to the parties.
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¶10 Kulstad and Maniaci took L.M. to the hospital and entered his name as “L.L. Kulstad-

Maniaci.” Kulstad and Maniaci sought legal advice regarding same-sex adoptions. Their

lawyer advised them that Montana law allowed only one of them to adopt L.M. The parties

decided that Maniaci would be the adoptive parent. Kulstad and Maniaci agreed that L.M.

would call only one of them “mom” and they further agreed not to hyphenate L.M.’s last

name. Kulstad and Maniaci also agreed that they would function equally as parents even

though only one of them could adopt L.M.

¶11 Kulstad and Maniaci participated in a home study with social worker Cynthia

Garthwait (Garthwait) in July 2001 as part of the adoption process. Kulstad and Maniaci

further participated in an adoptive post-placement report with Garthwait in April 2002.

Maniaci represented to Garthwait at each meeting, and Garthwait understood, that Maniaci

and Kulstad were in a committed relationship. Garthwait further understood that Kulstad

would co-parent and support L.M.

¶12 Maniaci decided in 2003 that she wanted to adopt a baby girl. Kulstad initially

disagreed with Maniaci about bringing another child into the home. Maniaci pursued the

adoption over Kulstad’s objection. Kulstad and Maniaci understood nonetheless that Kulstad

would function as a parent to any second child that Maniaci adopted.

¶13 Kulstad and Maniaci participated in a home study with Dennis Radtke (Radtke) to

adopt a second child. Maniaci represented to Radtke that Kulstad would co-parent and

support A.M. Maniaci sent an email inquiry to the Human Rights Campaign in March 2003,

about adopting a second child. Maniaci stated that she and her “partner” had completed a
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private adoption and a home study “for our boy” and “now we would like to adopt a baby

girl.” Maniaci eventually adopted A.M. from Guatemala.

¶14 Kulstad lived with the children and functioned as a parent to the children on a day-to-

day basis for the remainder of her relationship with Maniaci. Kulstad and Maniaci provided

for the children’s physical, psychological, and developmental needs much like any other

two-parent family. Maniaci assumed primary responsibility for purchasing groceries and

supplies or services for the children. Maniaci primarily cared for the children during the day

while Kulstad worked outside the home. Kulstad cared for the children in the afternoon and

early evening when Maniaci saw chiropractic patients in the basement office of the house in

which the parties lived. Kulstad primarily cared for the children on the weekends. The

parties jointly participated in holding therapy with L.M. to address his reactive attachment

issues.

¶15 Kulstad included Maniaci and the children in her will and as beneficiaries in her life

insurance policies. Kulstad also claimed L.M. as a dependent on her tax returns for the years

2001 through 2006, and head of household status, with Maniaci’s full knowledge and

consent. Kulstad and Maniaci agreed that Maniaci would claim A.M. on her tax returns in

2004. Maniaci had not filed tax returns for the years 1999 through 2006 at the time this

action had begun. Months later, Maniaci filed back tax returns for those years in which she

sought to claim L.M. as a dependent.

¶16 Maniaci had her tax returns prepared for 2001, 2002, and 2003, in anticipation of

adopting A.M. These tax returns contained inflated income figures. Maniaci provided these
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inflated income figures to the Guatemalan government with A.M.’s adoption application.

Maniaci never filed these tax returns with the Internal Revenue Service. Kulstad remained

unaware of their existence until Maniaci produced them in response to Kulstad’s discovery

request in this case.

Property

¶17 Maniaci had purchased a 4.5 acre tract of land for $30,000 in July 1995. She paid

approximately $43,214.73 for property improvements in 1995. Maniaci informed Kulstad

and others, in early 1996, that she had no funds left to finish building the house. The parties

understood that Kulstad would move to Montana and contribute her money and labor to help

Maniaci complete construction of what would be their home. Kulstad contributed a portion

of these monies from the sale of her house in Seattle to help fund the house in Montana.

¶18 Kulstad deposited her accumulated assets into the parties’ joint checking account from

1996-2001. Kulstad began contributing money and labor to complete the construction of the

house and improvements to the real property in the spring of 1996. Kulstad also constructed

outbuildings and a play area for the children. Kulstad worked on the house and property

nearly full-time during the spring and summer of 1996.

¶19 Kulstad expressed concern to Maniaci in the spring of 1996 that her name was not on

the title. Maniaci assured Kulstad that the property would be divided equally should their

relationship end. Kulstad relied on this assurance, as well as Maniaci’s promise, that in the

event of her death, Maniaci would bequeath the property to Kulstad. Maniaci executed a will

in 1998 that left the real property to Kulstad.
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¶20 Kulstad began working as her assets neared depletion. Kulstad’s income failed to

meet the financial needs of the parties. She used her credit cards to subsidize her income.

Kulstad accrued debt for the benefit of the parties. She expended significant labor and

money in helping Maniaci grow her chiropractic business. Kulstad worked to finish the

basement office, entrance, deck, stairs, and trim. Kulstad’s accrued debt included many

items designed to facilitate Maniaci’s chiropractic practice, such as paying the cost to finish

the basement, purchasing Nikkei magnets, purchasing malpractice insurance, and purchasing

chiropractic videos.

¶21 Maniaci initially agreed to help pay off the credit card debt. Maniaci’s income from

her chiropractic practice, however, did not increase as much as she had expected. Maniaci

eventually received inheritance monies in the late summer of 2001. She refused to use this

inheritance to help pay down the credit card debt in Kulstad’s name. Maniaci instead

deposited her inheritance monies into separate accounts that only she could access. Maniaci

had filed for bankruptcy in 1992. Maniaci expected Kulstad to file for bankruptcy if she

could not pay off the debt. Kulstad ultimately filed for bankruptcy in May 2002.

Prior Proceedings

¶22 Kulstad filed a petition to dissolve the parties’ marriage and to receive a parenting

interest on January 19, 2007. Kulstad sought a decree to dissolve the parties’ common law

marriage and to distribute equitably the parties’ assets. Kulstad further sought an order of

support of the minor children, an order granting her a parental interest, and an order

implementing a parenting plan based on the best interests of the children. Kulstad also filed
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for the appointment of a guardian ad litem (GAL). The court issued a summons to Maniaci

and a temporary economic restraining order to the parties.

¶23 Maniaci filed a motion to dismiss Kulstad’s petition for dissolution of marriage and

parenting. She further objected to the appointment of a GAL. Maniaci also filed for a

temporary restraining order (TRO) to prevent Kulstad from entering the family home.

¶24 The court denied Maniaci’s motion to dismiss Kulstad’s petition for parental interest

and parenting plan. The court appointed a GAL and issued a TRO. The court initially

reserved judgment on the legal recognition of the parties’ relationship as a common law

marriage. The court later rejected the dissolution portion of Kulstad’s petition on the basis

that Montana law does not recognize same-sex marriages.

¶25 The court held a hearing on March 20, 2007, to determine whether Kulstad had a

parental interest in the minor children, whether Kulstad’s relationship with the children

warranted an interim parenting plan, and whether the TRO should remain in effect. Jane

Cowley, GAL, attended on behalf of the children. The court heard testimony from the

parties and numerous witnesses.

¶26 Kulstad presented several witnesses who testified regarding her relationship with the

children, including L.M.’s teachers and a close family friend. The GAL submitted a

seventeen page report that recommended that the court protect and encourage Kulstad’s close

relationship with the minor children. Doty Moquin (Moquin), a therapist who provided

counseling to Maniaci and L.M., testified. Moquin relied upon her therapy sessions with

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Maniaci in arguing that Kulstad did not have a child-parent relationship with the minor

children.

¶27 The court found Moquin’s testimony not credible. The court pointed to the

contradictory testimony of other witnesses and the fact that Moquin had spoken to a limited

number of people about Kulstad’s relationship with the minor children. The court deemed

Moquin’s analysis insufficient to evaluate whether a child-parent relationship existed

between Kulstad and the children. The court further cited the conflict created by Moquin’s

testimony in view of the fact that she served as a therapist for Maniaci and for L.M.

¶28 The court recognized that Maniaci legally had adopted the minor children. The court

concluded, however, that Kulstad had established by clear and convincing evidence that a

child-parent relationship existed between her and both of the minor children in accordance

with § 40-4-211(4)(b) and (6), MCA. The court determined that an interim parenting plan

served the children’s best interests. The court further determined that § 40-4-228, MCA,

applied to the final adjudication of parenting between the parties. The court allowed the

TRO to remain in effect with the exception that Kulstad could return to the former family

home for visitation exchanges.

¶29 The court revised the parenting plan on December 14, 2007. The court ordered the

parties to participate in the Positive Alternative for Children Team (PACT) program. The

court appointed Cindy Miller, Ph.D. (Dr. Miller), to complete a parenting plan evaluation.

The court authorized Dr. Miller to arrange a substitute GAL upon the completion of the

parenting plan evaluation following Maniaci’s objection to Jane Cowley’s continued service
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as GAL. The court vested the GAL with authority to enforce the parenting plan. The court

further allowed the GAL to recommend changes to the parenting plan, without a court order,

based upon feedback from the parties’ participation in the PACT program. The court also

authorized Dr. Miller to select a therapist for both children. Dr. Miller selected Paul

Silverman, Ph.D. (Dr. Silverman), to provide therapeutic services for the children and the

parties.

Parenting

¶30 The court held a bench trial on May 22 and 23, 2008, to determine whether Kulstad

should be awarded a permanent parental interest and whether the parties’ property should be

divided equitably. The parties again presented testimony, witnesses, and evidence. The

court-appointed expert, Dr. Miller, presented testimony regarding her educational

background and her parenting plan evaluation. Kulstad presented testimony by Dr.

Silverman and Suzanne Dixon, M.D. (Dr. Dixon). Trayce Hansen, Ph.D. (Dr. Hansen),

testified for Maniaci. The District Court entered a series of findings of fact based on the

evidence presented at the trial. We highlight those findings here in narrative form.

¶31 Dr. Miller had practiced in the clinical psychology field for twenty-one years,

including three years at Shodair Children’s Hospital in Helena, Montana. Dr. Miller had

been a member of the Missoula County Child Protection Team for ten years, and the

Missoula County Child Abuse Referral and Evaluation Service Committee for six years. She

had published her work in at least two major psychology and behavior journals.

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¶32 Dr. Miller deemed both parties capable of being fit parents. Dr. Miller observed that

the children had a strong attachment to both parties, consistent with the observation of the

children’s teachers and mental health professionals. Dr. Miller noted Maniaci’s objection to

the children’s relationship with Kulstad. She contrasted Maniaci’s objection with Kulstad’s

support of the children’s relationship with Maniaci.

¶33 Dr. Miller also analyzed the children’s developmental needs. She opined that both

children had significant attachment issues. The children also had difficulty regulating

themselves emotionally. Dr. Miller described this attribute as a skill learned in secure

relationships. Dr. Miller noted that Kulstad had served as a psychological parent to the

children before the parties’ separation and that Kulstad continued to serve in that role after

the separation. She offered that Kulstad’s removal from their lives adversely would affect

their future capacity to have stable, healthy relationships.

¶34 Dr. Miller also reviewed literature from the American Psychological Association

(APA) regarding any effects on children of being raised in same-sex households. She

asserted that a very strong consensus existed in the literature that showed no difference in

children raised in same-sex households.

¶35 Dr. Silverman frequently conducts psychotherapy with the minor children

individually, with the children and their parents, and with each adult separately. He started

therapy with L.M. in April 2007 and with A.M. in September or October 2007. Dr.

Silverman observed that both parties had parental relationships with the children. He

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concluded that Kulstad had a relationship with the children before therapy. He could not

specify precisely, however, when that relationship had begun.

¶36 Dr. Silverman determined that Kulstad comfortably had served in a parenting role

from the beginning of his contact with her and that “she expresses great love for the children,

caring, generally-appropriate parental behavior.” Dr. Silverman believed it to be in the best

interest of the children to maintain their relationship with Kulstad. Termination of the

relationship would be detrimental to the children. He agreed with Dr. Miller’s parenting plan

evaluation.

¶37 Dr. Dixon testified on the relevance of parental sexual orientation to children’s

development. Dr. Dixon concluded that same-sex parents have no adverse impact on

children’s adjustment or well-being. Children of same-sex parents fare just as well as their

peers physically, psychologically, emotionally, cognitively, and socially. This development

includes a child’s progression in gender and sexual development.

¶38 Dr. Hansen attacked the validity of Dr. Miller’s parenting evaluation. Dr. Hansen

argued that Dr. Miller had failed to use reliable and valid assessment measures and

techniques. Dr. Hansen asserted that Dr. Miller’s evaluation had failed to follow proper

APA professional ethics guidelines. In particular, Dr. Hansen testified that the PACT

program did not follow APA’s guidelines for child custody evaluations. Dr. Hansen pointed

to the fact that PACT was a new program and no professionals had studied its efficacy. Dr.

Hansen argued that a published study of PACT would be needed before an objective

evaluation could be made.
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¶39 Dr. Miller, of course, had developed the PACT program. Dr. Miller conceded that she

had modified the PACT program to fit the particular circumstances of this case. Dr. Hansen

argued that this modification would require further study and evaluation once a proper

review of the existing PACT program had been undertaken. Dr. Hansen testified that Dr.

Miller’s use and reliance on this modified version of the PACT program was “unethical” in

light of psychologists’ need to “substantiate their findings” and demonstrate that their

findings “are reliable and valid.”

¶40 Dr. Hansen argued that Dr. Miller initially should have followed the APA’s

recommendation to use established professional and scientific standards. As a result, Dr.

Hansen criticized Dr. Miller’s “own subjective clinical judgment opinion.” Dr. Hansen also

criticized Dr. Miller’s assertion that the same-sex element in this case would have no effect

on the children. She testified that Dr. Miller had failed to research the differences between

children who are parented by same-sex couples and those who are parented by heterosexual

couples.

¶41 Dr. Hansen admitted on cross-examination that parenting evaluations represented a

new area for her and that she never actually had prepared one. Dr. Hansen never had been

qualified as an expert witness by any court. Dr. Hansen never had been retained by any party

as an expert witness. Dr. Hansen’s psychology practice involved geriatric patients. Dr.

Hansen conceded that she currently did not work with children and had fewer than four years

of professional experience after earning her Ph.D. She had worked as a research assistant

14
and had published one article in the journal Personality Assessment in a forensic-type

situation.

¶42 The court disagreed with Dr. Hansen’s criticisms of Dr. Miller’s parenting evaluation.

Dr. Hansen’s qualifications did not support her criticism of Dr. Miller’s parenting evaluation

or her testimony on the subject of the relevance of parental sexual orientation on children’s

development. The court concluded that Dr. Miller had prepared her evaluation by following

the generally-accepted practices in the field. The court accepted and adopted Dr. Miller’s

parenting plan evaluation.

¶43 The court agreed with Dr. Miller and Dr. Silverman that both children had histories of

significant abandonment and attachment issues. Kulstad represented a loving and stable

force in the children’s lives and that it would be in the best interests of the children to

continue their child-parent relationship with Kulstad. The court found that Maniaci had

presented no credible evidence to show that continuing the children’s relationship with

Kulstad would not be in their best interest. The court noted that, contrary to Dr. Hansen’s

testimony, the APA concludes that no evidence suggests that same-sex couples are unfit to

be parents, or that psychosocial development among children of same-sex couples would be

compromised in any respect.

¶44 The court determined that Maniaci and Kulstad had been domestic and financial

partners with long-term commitments. Significant evidence established that the children

regarded Kulstad as their parent. Maniaci claimed to have “lied” to the home study

evaluators, Garthwait and Radtke, about her relationship with Kulstad. The court determined
15
that the evidence established, however, that the parties’ relationship had been consistent with

Maniaci’s original representations to Garthwait and Radtke.

¶45 The parties’ relationship placed the children into a family of same-sex parents. The

court cautioned that the complexities of each child’s attachment disorders mandated the court

to proceed with care and follow the advice of Dr. Miller and Dr. Silverman. The court

awarded Kulstad a parental interest in L.M. and A.M. The court further determined that

Kulstad would have equal decision-making authority with Maniaci regarding significant

matters affecting the children.

¶46 The court issued an interim parenting schedule. The court ordered the parties and

minor children to participate in the PACT program for one year. The court directed that a

GAL, selected through the PACT program, submit recommendations for a final parenting

schedule after one year. The court would review the GAL’s recommendations and issue a

final parenting plan. The court authorized the GAL to recommend changes to the parenting

schedule in consultation with Dr. Silverman, Dr. Miller, and Maniaci’s PACT appointed

therapist.

Property

¶47 Maniaci first asserted that Kulstad’s contributions of money and labor to develop the

real property represented nothing more than a gift. Maniaci next argued that Kulstad had

intended for her contributions to the real property to serve as compensation for lodging.

Maniaci finally claimed that Kulstad’s work on the property had been defective, in need of

repair, and had damaged the value of the real property.
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¶48 Kulstad had contributed significant money and labor to maintain the real property.

She thinned trees, performed home and yard maintenance, paid property taxes, paid the

homeowner’s insurance, and paid for garbage service. Kulstad’s contributions of money and

labor to improving and maintaining the real property from 1996 to 2006 had been

significantly greater than Maniaci’s contributions. Kulstad had undertaken her work on the

property for the joint benefit of the parties and minor children with Maniaci’s full knowledge

and consent. The court thus determined that denying Kulstad any interest in the property

unjustly would enrich Maniaci. The court awarded Kulstad $101,824.43 based upon

Kulstad’s contributions toward the parties’ joint assets.

¶49 Kulstad had assumed primary responsibility for auto repairs and auto insurance for all

vehicles regardless of how titled or used. Kulstad primarily drove the Kia Sportage.

Maniaci primarily drove the Kia Sedona. The court awarded the Kia Sportage to Kulstad as

an equitable award for her contributions of labor in improving the property. The court

ordered the title to be transferred to Kulstad. The court allowed each party to retain all

personal property then in her possession. Maniaci appeals.

STANDARD OF REVIEW

¶50 We review for correctness a district court’s interpretation and application of statutes.

In re T.H., 2005 MT 237, ¶ 35, 328 Mont. 428, 121 P.3d 541. Questions of constitutionality

involve a plenary review by this Court. In re Custody and Parental Rights of D.S., 2005 MT

275, ¶ 15, 329 Mont. 180, 122 P.3d 1239.

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¶51 We review a district court’s findings of fact to determine whether the findings are

clearly erroneous. Fischer v. Fischer, 2007 MT 101, ¶ 8, 337 Mont. 122, 157 P.3d 682. We

will affirm the district court’s decision when substantial credible evidence supports the

findings, unless there has been a clear abuse of discretion. Toavs v. Buls, 2006 MT 68, ¶ 7,

331 Mont. 437, 133 P.3d 202.

¶52 We view the evidence in the light most favorable to the prevailing party. In re Estate

of Bradshaw, 2001 MT 92, ¶ 11, 305 Mont. 178, 24 P.3d 211. The trial court determines the

credibility of witnesses and the weight assigned to their respective testimony. In re

Bradshaw, ¶ 11. We do not consider whether evidence supports findings that are different

from those made by the district court. We confine our review to the determination of

whether substantial credible evidence supports the findings actually made by the district

court. In re Bradshaw, ¶ 11.

DISCUSSION

¶53 Whether the court’s application of §§ 40-4-211 and 40-4-228, MCA, to support

Kulstad’s claim of a parental interest violates Maniaci’s fundamental constitutional rights as

a parent.

¶54 Maniaci contends that she stands as the fit natural parent to the minor children after

the adoption process had severed the parenting rights of the children’s biological parents.

Maniaci argues that § 40-4-228, MCA, improperly fails to require a court to determine the

“fitness” of a natural parent before awarding a nonparent a parental interest based upon the

best interests of the child. Maniaci further argues that her adopted children have no
18
constitutionally protected rights, absent a showing of abuse, neglect, or dependency. She

points to a series of decisions by this Court to support her claim that this Court continually

has upheld the constitutionally protected rights of the natural parent over a third party.

Pre-1999 Decisions

¶55 In the first case, the Court in Matter of Guardianship of Doney, 174 Mont. 282, 570

P.2d 575 (1977), returned the children to the biological father even though the biological

father had given their aunt temporary custody after the children’s mother had died. In In re

A.R.A., 277 Mont. 66, 919 P.2d 388 (1996), the Court awarded custody to the absent

biological father after the child’s mother died and the step-father had sought custody in favor

of the biological father. Finally, the Court in Girard v. Williams, 1998 MT 231, 291 Mont.

49, 966 P.2d 1155, awarded custody to the biological father. The step-father had cared for

the children after the mother had been murdered and after the biological father had been

incarcerated. Girard, ¶¶ 3-5, 9. The step-father later died and his brother and wife assumed

care of the children. Girard, ¶ 13. The court rejected the attempt by the brother and wife of

the step-father to obtain legal custody to the exclusion of the biological father. Girard, ¶ 57.

Maniaci argues that these cases establish that the Court has not recognized the “best interests

of the child” standard absent a showing of abuse, neglect, or dependency.

¶56 A third party in each of these cases attempted to secure custody of the minor children

to the exclusion of the biological parent. The parties, in essence, sought to terminate the

parental rights of the biological parent based upon the best interests of the child. More

importantly, these cases predate the 1999 amendments. The pre-1999 statutes made
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termination of parental rights, based upon dependency, abuse, or neglect, the only option

available to the Court before it could award a nonparent a custodial interest. Doney, 174

Mont. at 286, 570 P.2d at 577; In re A.R.A., 277 Mont. at 72, 919 P.2d at 392; Girard, ¶ 47.

1999 Amendments

¶57 The 1999 Montana legislature amended the nonparental statutes to recognize

specifically a child’s constitutional rights in nonparental parenting proceedings. The

legislature added § 40-4-228, MCA, which provides that “when a nonparent seeks a parental

interest in a child under 40-4-211 or visitation with a child, the provisions of this chapter

apply unless a separate action is pending under Title 41, chapter 3.” Section 40-4-211(4)(b),

MCA, allows a nonparent standing to seek a parenting interest of a minor child if the person

has established a child-parent relationship.

¶58 Nothing in Section 40-4-228, MCA, limits its application to a finding of abuse or

neglect. Section 40-4-228(2)(b), MCA, specifically provides that a party seeking a parental

interest first must establish a child-parent relationship. The legislature also added § 40-4-

227(1)(a), MCA, which defers to the rights of the natural parent. Section 40-4-227(1)(a),

MCA, provides that “it is the policy of the state of Montana to recognize the constitutionally

protected rights of parents and the integrity of the family unit.” The statute seeks to balance

the parent’s rights with the constitutionally protected rights of the child to determine the best

interests of the child. Section 40-4-227(1)(a)-(c), MCA. The parent’s constitutionally

protected interest in the parental control of a child should yield to the best interests of the

20
child “when the parent’s conduct is contrary to the child-parent relationship.” Section 40-4-

227(2)(b), MCA.

¶59 Statutes carry a presumption of constitutionality. In re Custody and Parental Rights

of D.S., 2005 MT 275, ¶ 15, 329 Mont. 180, 122 P.3d 1239. The party challenging the

statute carries the burden of proving the statute’s unconstitutionality beyond a reasonable

doubt. In re Custody and Parenting Rights of D.S., ¶ 15. We resolve any doubt in favor of

the statute. State v. Michaud, 2008 MT 88, ¶ 15, 342 Mont. 244, 180 P.3d 636.

¶60 Maniaci argues that In re Parenting of J.N.P., 2001 MT 120, 305 Mont. 351, 27 P.3d

953, decided two years after the 1999 amendments, implicitly rejected their constitutionality.

We disagree. In J.N.P., Tammy Lynn Knopp (Tammy), a natural mother, left her child

temporarily with her aunt and uncle (Knopps) to allow her to find employment and a place to

live. The uncle prepared a document entitled “temporary guardianship.” J.N.P., ¶¶ 5-6.

The document purported to authorize the Knopps to seek medical attention for J.N.P. if it

became necessary. Tammy signed the document. J.N.P., ¶ 5.

¶61 The Knopps filed a petition for a parenting plan and child support for J.N.P. after

caring for her for slightly more than two months. J.N.P., ¶ 6. The petition actually sought

designation of the Knopps as custodian of the child, sought an order that the child reside with

Knopps, and sought to limit Tammy to restricted and supervised visitation. J.N.P., ¶ 6. As

noted by the Court, “the Knopps’ petition was the functional equivalent of a petition for

custody of J.N.P.” J.N.P., ¶ 6. The Knopps also applied for temporary custody on an ex

parte basis. The court granted their request. J.N.P., ¶ 7.
21
¶62 Tammy moved to terminate the guardianship and restore her parental rights. J.N.P.,

¶ 8. She argued that her parental rights could not be terminated absent a Title 41 proceeding.

J.N.P., ¶ 9. Although the Knopps relied upon the “best interest” standard in § 40-4-212,

MCA, they sought actual custody of J.N.P., as opposed to a parental interest. J.N.P., ¶¶ 6,

10. The court concluded that the law does not permit the destruction of a natural parent’s

fundamental right to custody of her child based solely upon the child’s best interest. J.N.P.,

¶ 26.

¶63 Maniaci contends that the Court must have assumed the existence of a child-parent

relationship in J.N.P. because Tammy had left the child in the Knopps’s exclusive custody.

The Knopps could not rely upon the nonparental statutes in seeking custody of J.N.P.,

however, in light of their failure to comply with the statutory pre-requisites of first

establishing a child-parent relationship through a petition filed under § 40-4-211, MCA. In

re Parenting of D.A.H., 2005 MT 68, ¶ 9, 326 Mont. 296, 109 P.3d 247. The Court in

D.A.H. refused to allow grandparents seeking custody to sidestep this statutory pre-requisite

and the Court in J.N.P. also refused. J.N.P., ¶¶ 22-23. The Court determined that it could

not deny Tammy custody absent termination of her parental rights pursuant to a Title 41

proceeding. J.N.P., ¶ 25.

Troxel Standard

¶64 Maniaci further claims that the United States Supreme Court rejected a similar

statutory scheme in Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054 (2000). In Troxel, two

children were born to a couple out of wedlock. Troxel, 530 U.S. at 60, 120 S. Ct. at 2057.
22
The children’s parents separated and their father lived with his parents, Jenifer and Gary

Troxel (Troxels). The Troxels’ son regularly brought their grandchildren to the Troxels’

home for weekend visitation. Troxel, 530 U.S. at 60, 120 S. Ct. at 2057.

¶65 Tommie Granville (Granville), the children’s mother, limited the Troxels’ visitation

after the suicide death of the Troxel’s son. Troxel, 530 U.S. at 60-61, 120 S. Ct. at 2057.

The Troxels petitioned for the right to visit their grandchildren under the Washington statute

that provided “any person may petition the court for visitation rights at any time including,

but not limited to, custody proceedings. The court may order visitation rights for any person

when visitation may serve the best interest of the child whether or not there has been any

change of circumstances.” Troxel, 530 U.S. at 61, 120 S. Ct. at 2057-58. The trial court

determined that visitation served the children’s best interests. Troxel, 530 U.S. at 61, 120

S. Ct. at 2058.

¶66 The Washington Court of Appeals reversed. Troxel, 530 U.S. at 62, 120 S. Ct. at

2058. It viewed limits on nonparental visitation as being “consistent with the constitutional

restrictions on state interference with parents’ fundamental liberty interest in the care,

custody, and management of their children.” Troxel, 530 U.S. at 62, 120 S. Ct. at 2058. The

Washington Supreme Court agreed that the statute unconstitutionally infringed on the

fundamental rights of parents to rear their children. Troxel, 530 U.S. at 63, 120 S. Ct. at

2058.

¶67 The Washington court found two major problems with the statute. The court noted

first that the State may interfere in the right of parents to rear their children only to prevent
23
harm or potential harm to the child. The court further noted that the statute sweeps too

broadly by allowing “any person” to petition for forced visitation at “any time” with the only

requirement being to serve “the best interest of the child.” Troxel, 530 U.S. at 63, 120 S. Ct.

at 2058-59. The court rejected the notion that the State should be making significant custody

decisions “merely because it could make a ‘better’ decision.” Troxel, 530 U.S. at 63, 120

S. Ct. at 2059. The court cited in this regard the fact that the trial court had given no special

weight to Granville’s determination of her daughters’ best interests. Troxel, 530 U.S. at 69,

120 S. Ct. at 2062. The United States Supreme Court granted certiorari and affirmed the

judgment. Troxel, 530 U.S. at 63, 120 S. Ct. at 2059.

¶68 Maniaci argues that this Court embraced Troxel in Polasek v. Omura, 2006 MT 103,

332 Mont. 157, 136 P.3d 519, and thereby rendered unconstitutional the 1999 amendments

to the nonparental statutory framework set forth in §§ 40-4-211 and 40-4-228, MCA. In

Polasek, this Court determined that the Troxel plurality opinion remained consistent with our

“best interest of the child” standard contained in § 40-9-102, MCA. Polasek, ¶ 14. Section

40-9-102, MCA, allows a grandparent reasonable rights to contact with a child. The Court

reasoned that Troxel instructs, and our statute requires, a court to determine the fitness of an

objecting parent whose parental rights have not been terminated before a court may grant a

petition for grandparent contact. Polasek, ¶ 15; § 40-9-102(2), MCA. A presumption arises

in favor of the parent’s wishes if the parent is fit. Polasek, ¶ 15.

¶69 Maniaci seeks to have this Court extend the parental fitness condition of the

grandparent contact statute to §§ 40-4-211 and 40-4-228, MCA. The extension advocated by
24
Maniaci would ignore the different language in the grandparent contact statute and the

nonparenting statutes. Section 40-4-228(5), MCA, provides that “it is not necessary for the

court to find a natural parent unfit before awarding a parental interest to a third party.” The

Supreme Court in Troxel passed on the constitutional question as to whether the Due Process

Clause requires all nonparental visitation statutes to include a showing of harm or potential

harm to the child as a condition precedent to granting visitation. Troxel, 530 U.S. at 73, 120

S. Ct. at 2064. The Court recognized that most state adjudication in the visitation context

occurs on a case-by-case basis. As a result, the Court announced that it “would be hesitant to

hold that specific nonparental visitation statutes violate the Due Process Clause as a per se

matter.” Troxel, 530 U.S. at 73, 120 S. Ct. at 2064.

¶70 The Washington visitation statute at issue in Troxel allowed anyone to be awarded

visitation. Troxel, 530 U.S. at 61, 120 S. Ct. at 2057. Section 40-4-228(2)(b), MCA,

provides that a party first must establish a child-parent relationship. Section 40-4-211(4)(b),

MCA, authorizes a court to consider visitation only once the party has established a child-

parent relationship. Moreover, the 1999 amendments require the court to balance the

constitutionally protected rights of both the parents and children in determining the best

interests of the child. Section 40-4-227, MCA.

¶71 The Minnesota Supreme Court upheld the constitutionality of a nonparenting statute

in SooHoo v. Johnson, 731 N.W.2d 815 (Minn. 2007), similar to the one enacted by the

Montana legislature. The Minnesota statute limited the class of people who could petition

for visitation to those persons who had resided with the child for two years or more and it
25
further narrowed the class of those who could be awarded visitation to parties who had

“established emotional ties creating a parent and child relationship.” SooHoo, 731 N.W.2d

at 820. Montana’s nonparental statutes avoid constitutional infirmity under the Troxel

standard through the twin thresholds of consideration of the wishes of the natural parent and

the need to first establish a child-parent relationship. See also Rubano v. DiCenzo, 759 A.2d

959 (R.I. 2000).

¶72 Maniaci argues that courts in other jurisdictions have applied the Troxel standard in

reversing decisions of trial courts in allowing visitation or custody rights to a third party. For

example, in Janice M. v. Margaret K., 404 Md. 661, 948 A.2d 73 (Md. 2008), Maryland’s

highest appellate court rejected the common law de facto parent doctrine as a basis for

awarding visitation rights to a third party. Maryland had no statute similar to Montana’s

nonparenting statute, however, that would provide the basis for allowing the visitation. The

court cautioned that “[w]hether the Maryland General Assembly chooses to enact legislation

similar to the Minnesota statute at issue in SooHoo is within its prerogative.” Janice M., 404

Md. at 689, 948 A.2d at 89. Montana’s legislature has chosen to enact the nonparenting

statutes. Maniaci has failed to carry her burden of proving beyond a reasonable doubt that

the statutes she challenges impermissibly infringe on her constitutional right to parent her

children. In re Custody and Parenting Rights of D.S., ¶ 15.

¶73 Whether the court properly awarded Kulstad a parental interest.

¶74 The nonparental statutory framework allows a court to award a parental interest to a

nonparent who establishes two threshold conditions by clear and convincing evidence.
26
These threshold conditions are that: “(a) the natural parent has engaged in conduct that is

contrary to the child-parent relationship; and (b) the nonparent has established with the child

a child-parent relationship as defined in 40-4-211, and it is in the best interests of the child to

continue that relationship.” Section 40-4-228(2)(a)-(b), MCA. Maniaci contends that

Kulstad failed to prove by clear and convincing evidence the mandatory requirements of

§ 40-4-228(2)(a)-(b), MCA.

Conduct Contrary to Child-Parent Relationship

¶75 Maniaci claims that Kulstad failed to demonstrate that Maniaci had engaged in

conduct contrary to the child-parent relationship. Maniaci argues that nonparenting statutes

limit conduct contrary to the child-parent relationship to instances of abuse or neglect. The

State never initiated any abuse or neglect proceedings against Maniaci and Kulstad never

made any allegations of abuse or neglect. Section 40-4-228(5), MCA, specifically provides,

however, that it “is not necessary for the court to find a natural parent unfit before awarding

a parental interest to a third party under this section.” Nothing in § 40-4-228, MCA, limits

its application to cases of abuse or neglect.

¶76 The District Court determined that Maniaci had acted contrary to her child-parent

relationship when she ceded her exclusive parenting authority to Kulstad. Kulstad

functioned in a parental role from the first day that L.M. came to the parties in 2001 through

the end of the parties’ relationship. Kulstad similarly functioned in a parental role from the

first day that A.M. came to the parties in 2003 through the end of the parties’ relationship.

Maniaci repeatedly represented to the home study evaluators, and, in turn, to adoption
27
authorities that she and Kulstad would raise the minor children as a family unit. Maniaci

also depicted this same familial environment to the Human Rights Campaign as part of her

effort to adopt A.M. The court specifically found that the parties’ relationship placed the

children into a family of same-sex parents.

¶77 Maniaci’s testimony that she had “lied” to the home study evaluators and adoption

authorities proves unavailing. We recently rejected similar claims by parties seeking to

disavow earlier representations made regarding the status of a party’s economic or personal

relationship. LeFeber v. Johnson, 2009 MT 188, 351 Mont. 75, 209 P.3d 254, and In re

Marriage of Swanner-Renner, 2009 MT 186, 351 Mont. 62, 209 P.3d 238. LeFeber argued

that Johnson had been acting as his nominee in purchasing a house and therefore was not

entitled to any ownership interest in the house at the end of the parties twenty-year

relationship. The district court rejected this claim, in large part, because LeFeber had

“overtly engaged in act[s] wholly inconsistent with [Johnson’s] role as an agent or nominee

holding bare legal title to the St. Joseph property.” LeFeber, ¶ 28. LeFeber had represented

to the Montana Department of Revenue “for seven years running” that Johnson was the sole

legal owner of the property. LeFeber, ¶ 28. And LeFeber had assured Johnson in a 1999

letter that she had "rights" to the property. LeFeber, ¶ 28. In Swanner-Renner, Renner

attempted to refute Swanner’s claim of a common law marriage between them by arguing

that he never had intended to enter a marriage during their twelve-year relationship.

Numerous earlier claims to the contrary complicated his attempted refutation. Renner had

filed several federal tax returns indicating that his status was married, filing separately.
28
Swanner-Renner, ¶ 15. Renner had identified Swanner as his wife in sworn deposition

testimony in another case in Montana in 1999. Swanner-Renner, ¶ 15. Renner also had

executed several documents for purposes of obtaining benefits from his union in which he

represented that Swanner was his wife. Swanner-Renner, ¶ 15.

¶78 Maniaci represented to home study evaluators and adoption authorities that she and

Kulstad would serve as parents to the children. Maniaci relied upon Kulstad’s support of the

children’s physical, psychological, and developmental needs. Maniaci further relied upon

Kulstad’s financial wherewithal to present a more stable financial picture to adoption

authorities. And Kulstad, with Maniaci’s full knowledge and consent, claimed L.M. as a

dependent on her tax returns. Kulstad and Maniaci received a financial benefit from this

representation to the Internal Revenue Service. Maniaci cannot rewrite the history of the fact

that she and Kulstad lived together for more than 10 years and jointly raised the minor

children in the same household. The District Court has discretionary authority to determine

that a parent acted contrary to her child-parent relationship when substantial credible

evidence supports its findings. Toavs, ¶ 7. Substantial credible evidence in the record

supports the District Court’s determination that Maniaci repeatedly and continually acted

contrary to her child-parent relationship.

In Loco Parentis

¶79 Section 40-4-211(6), MCA, provides that a “child-parent relationship” includes a

relationship that existed, in whole or in part, before the filing of a parenting plan action. The

party seeking to establish this relationship first must demonstrate that she provided for the
29
physical needs of the child by supplying food, shelter, and clothing. Section 40-4-211(6),

MCA. The party further must demonstrate that she provided the child with the necessary

care, education, and discipline on a day-to-day basis “through interaction, companionship,

interplay, and mutuality that fulfill the child’s psychological needs for a parent as well as the

child’s physical needs.” Section 40-4-211(6), MCA.

¶80 The District Court determined that Kulstad had met these criteria through the fact that

Maniaci “consented to and fostered the parent-like relationship between Ms. Kulstad and the

children.” The court pointed specifically to the facts that Kulstad and the children lived

together in the same household and that Kulstad had participated without restriction in their

daily lives as a co-parent. The court further noted that Kulstad had assumed significant

financial obligations of parenthood without expectation of financial compensation. Finally,

the court found that Kulstad had served in this parental role for a sufficient length of time to

have established with the children “a bonded, dependent relationship parental in nature.”

¶81 Maniaci contends that Kulstad had to demonstrate that Maniaci voluntarily had

permitted her children to remain continuously in the exclusive care of Kulstad for a

significant period of time in order for Kulstad to have established a child-parent relationship.

Maniaci argues, in fact, that Kulstad needed to demonstrate that she stood in loco parentis to

Maniaci’s children to satisfy the requirement of § 40-4-228(4), MCA. Maniaci argues that

this Court consistently has interpreted in loco parentis to mean a person who acts as a parent

to the exclusion of the natural parent.

30
¶82 Maniaci argues that Kulstad’s failure to demonstrate that she “stood in place of”

Maniaci as parent to the minor children renders irrelevant the question of whether Kulstad

had established a child-parent relationship. Maniaci cites to Peterson v. Kabrich, 213 Mont.

401, 691 P.2d 1360 (1984), and Niemen v. Howell, 234 Mont. 471, 764 P.2d 854 (1988), to

support her claim that this Court has recognized in loco parentis status only when a party

stands in place of the natural parent. Both cases focus on whether monetary transfers

between adult relatives should be treated as gifts or loans. Both cases discuss in loco

parentis status only incidentally to the main analysis. And neither case restricts in loco

parentis status to a nonparent serving as a parent to a child to the exclusion of the natural

parent.

¶83 The widow of the adult nephew in Peterson claimed that certain monetary transfers

made by the aunt to the adult nephew had been gifts and thus should not be subject to

repayment. The widow claimed that an in loco parentis status existed between the aunt and

her adult nephew in order to support a presumption that the aunt had intended the transfers to

be gifts. The Court rejected this claim where the evidence indicated that the relationship had

been limited “to occasional visits and the exchange of letters and Christmas gifts.” Peterson,

213 Mont. at 408, 691 P.2d at 1364. The Court noted that in order to stand in loco parentis

to another, “a person must intentionally assume the status of a parent by accepting those

responsibilities and obligations incident to the parental relationship without benefit of legal

adoption.” Peterson, 213 Mont. at 408, 691 P.2d at 1364. The Court made no mention of

whether the acceptance of these responsibilities and obligations must be to the exclusion of a
31
natural parent. In any event, the aunt had not accepted those responsibilities and obligations

through the exchange of letters and Christmas cards and hosting the adult nephew on

occasional visits.

¶84 Similarly, in Niemen, a surviving widow claimed that the step-father of her deceased

husband had assumed in loco parentis status as part of her effort to avoid repaying

substantial amounts of money advanced by the step-father. The widow argued that the step-

father had “accepted responsibilities and obligations incident to the parental relationship.”

Niemen, 234 Mont. at 475, 764 P.2d at 856. The Court rejected this claim on the grounds

that “no evidence in the record [ ] establishes this fact.” Niemen, 234 Mont. at 475, 764 P.2d

at 856. The Court cited the “close and loving relationship” between the step-father and the

adult child as a reason for the step-father advancing payments to the adult son, including

gifts and loans, but concluded that the evidence failed to establish that the step-father had

assumed the role of parent for the adult child. Niemen, 234 Mont. at 475, 764 P.2d at 856.

We rejected a similar claim of in loco parentis status between a decedent and adult claiming

to have been adopted as an adult in In re Estate of Bovey, 2006 MT 46, ¶ 18, 331 Mont. 254,

132 P.3d 510.

¶85 Here Kulstad and Maniaci served as parents for young children entirely dependent on

them for their care and well being. The District Court entered findings that established that

Kulstad had accepted responsibilities and obligations incident to the parental relationship.

Maniaci argues nevertheless that § 40-4-228(4), MCA, limits in loco parentis status to a

situation where the natural parent steps aside and allows another person to remain
32
continuously in the care of another for a significant period of time to the exclusion of the

natural parent.

¶86 We note first that § 40-4-228(4), MCA, provides merely one example of how a

natural parent’s conduct may be contrary to the child-parent relationship. Nothing in § 40-4-

228(4), MCA, makes any mention of the requirement that the person acting in loco parentis

does so to the exclusion of the natural parent. None of the decisions of this Court have

defined in loco parentis status to require a third party acting as a parent to the exclusion of

the natural parent. We decline to read this requirement into § 40-4-228(4), MCA.

¶87 The District Court also relied in part on the common law doctrine of de facto

parenting to support its conclusion that Kulstad had standing to commence this proceeding.

We need not rely upon the de facto parenting doctrine in light of the legislature’s decision to

amend the parenting statutes to allow for a parental interest to be awarded to a party who

could establish a child-parent relationship with the child when the natural parent had

engaged in conduct contrary to the child-parent relationship. Section 40-4-228(2)(a)-(b),

MCA. The District Court found that continuing Kulstad’s relationship with the minor

children would be in the children’s best interests and substantial evidence in the record

supports the District Court’s finding.

Clear and Convincing Evidence of Child-Parent Relationship

¶88 Maniaci further contends that, even assuming for the sake of argument that Kulstad

stood in loco parentis to the minor children, Kulstad still failed to prove by clear and

convincing evidence that she had established a child-parent relationship. Maniaci argues that
33
§ 40-4-211(6), MCA, required Kulstad to have provided for the physical and psychological

needs of the children before she filed the lawsuit. Maniaci urges the Court to look at the

alleged relationship between Kulstad and the children before Kulstad commenced this action.

¶89 Maniaci disparages as self-serving Kulstad’s testimony regarding the history of her

child-parent relationship. Maniaci claims that Dr. Silverman “could only attribute some

semblance of a relationship” between Kulstad and the children “as far back as six months

before [Kulstad] filed her lawsuit – a time when litigation was imminent, and after the time

that [Kulstad] attempted to get Dr. Maniaci to enter into a written agreement about custody.”

Maniaci further argues that only she brought forward witnesses who could attest to the nature

of Kulstad’s relationship with the children.

¶90 A district court sits in the best position to observe and judge witness credibility and

we will not second guess its determination regarding the strength and weight of conflicting

testimony. In re Marriage of Horton, 2004 MT 353, ¶ 19, 324 Mont. 382, 102 P.3d 1276.

The District Court received and heard testimony from numerous witnesses, including mental

health professionals, the children’s therapists, and the court appointed GAL. This evidence

and testimony allowed it to determine that Kulstad had established a child-parent relationship

with the minor children. This evidence and testimony further allowed the court to evaluate

whether it was in the children’s best interest to maintain that child-parent relationship.

¶91 The court acknowledged that the adoption allowed Maniaci to be the exclusive legal

parent. The court recognized, however, that Maniaci’s actions from the time that the

children entered the home had been entirely inconsistent with an exclusive child-parent
34
relationship. Kulstad, with Maniaci’s consent, served in a parental role for a length of time

sufficient to establish a bonded, dependent relationship with the minor children. Kulstad

functioned in a parental role from the first day that each of the minor children came to the

parties through the end of the parties’ relationship. Dr. Silverman testified that the children

and Kulstad had established and maintained a child-parent relationship. Dr. Silverman and

Dr. Miller testified that the children would suffer irreparable harm should the court deny

parenting time to Kulstad. The record supports the court’s decision to award Kulstad a

parental interest in the minor children. In re Bradshaw, ¶ 11.

¶92 Whether the court properly awarded Kulstad personal property and a property

interest in the parties’ home.

¶93 The court applied equitable principles in dividing the personal and real property

between the parties. We have approved a district court’s application of equitable doctrines in

dividing the property of unmarried cohabitants in Anderson v. Woodward, 2009 MT 144, 350

Mont. 343, 207 P.3d 329, and LeFeber.

¶94 We determined in Anderson that the district court correctly had applied equitable

principles to distribute two real estate properties that the parties had accumulated during their

eight-year relationship. Anderson, ¶ 16. The district court in LeFeber properly used

equitable doctrines to divide property that LeFeber had purchased and Johnson had

improved. LeFeber, ¶ 23. Johnson’s improvements included finishing the basement,

building a deck, installing flooring, fencing the yard, constructing a greenhouse, and

installing almost all of the landscaping on the property. LeFeber, ¶ 14. The district court
35
had the power to make compensatory adjustments between the respective parties “according

to the ordinary principles of equity.” LeFeber, ¶ 21; Anderson, ¶ 16. We described the

approach used to divide the property as being “similar to that used to divide a marital estate

in a dissolution action.” LeFeber, ¶ 22. We also noted that the court “has great flexibility in

fashioning appropriate relief for the parties.” LeFeber, ¶ 22.

¶95 Similarly in Flood v. Kalinyaprak, 2004 MT 15, ¶¶ 26-27, 319 Mont. 280, 84 P.3d 27,

the district court correctly applied equitable doctrines in dividing the assets of an unmarried

couple. In Flood, the unmarried couple disputed the distribution of property that they had

acquired during their relationship. Flood, ¶¶ 10-11. Flood instituted a partition action after

the relationship had ended and brought additional claims, including unjust enrichment and

constructive trust. Flood, ¶ 11.

¶96 Maniaci purchased the real property and paid for the initial property improvements.

Kulstad contributed her money and labor to complete the construction of the house and

improvements to the real property. The court determined that Kulstad’s testimony and

evidence entitled her to an equitable and fair award of $101,824.43. The court also allowed

an equitable award of the Kia Sportage automobile for Kulstad’s significant contributions of

labor in improving the property. The District Court properly used equitable doctrines to

divide the parties’ personal and real property. LeFeber, ¶ 23; Anderson, ¶ 16; Flood, ¶¶ 26-

27. The District Court had “great flexibility” in fashioning appropriate relief for Kulstad and

Maniaci using the ordinary principles of equity. LeFeber, ¶ 23; Anderson, ¶ 16; Flood, ¶ 20.

¶97 Affirmed.
36
 /S/ BRIAN MORRIS

We Concur:

/S/ MIKE McGRATH
/S/ JAMES C. NELSON
/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA O. COTTER

Justice James C. Nelson, concurring.

¶98 I concur.

¶99 Maniaci and her defense team1 attempt to avoid the one issue that makes this case

uniquely important—the elephant in the room: whether homosexuals in an intimate

domestic relationship each have the right to parent the children they mutually agree that one

party will adopt (or, presumably, conceive). 2 The District Court and this Court have

properly answered that question in the affirmative based on the facts of this case and on the

statutory scheme discussed. I agree with the District Court’s decision, and I concur with

this Court’s decision.

¶100 Sadly, however, this case represents yet another instance in which fellow Montanans,

who happen to be lesbian or gay, are forced to battle for their fundamental rights to love

1
Alliance Defense Fund (counsel), and Montana Family Foundation and Pacific
Justice Institute (amici curiae).
2
I say they “attempt” to avoid this issue because each of the defense team’s
participants makes a point of disavowing sexual orientation as playing any part in their
involvement in this case—a point that (a) would not need to be raised if sexual orientation

37
who they want, to form intimate associations, to form family relationships, and to have and

raise children—all elemental, natural rights that are accorded, presumptively and without

thought or hesitation, to heterosexuals.

¶101 The Court’s decision is grounded in the statutory scheme which was raised and

argued. I remain absolutely convinced, nonetheless, that homosexuals are entitled to enjoy

precisely the same civil and natural rights as heterosexuals as a matter of constitutional law.

I wrote extensively on this and on the discrimination homosexuals face daily in my special

concurrence in Snetsinger v. Montana University System, 2004 MT 390, ¶¶ 38-111, 325

Mont. 148, 104 P.3d 445 (Nelson, J., specially concurring). I argued that this Court should

recognize: (a) that laws and policies which deny people their fundamental rights on the

basis of gender or sexual orientation violate the inviolable human dignity clause of Article

II, Section 4 of the Montana Constitution; (b) that classifications of persons on the basis of

gender or sexual orientation are sex-based and are, therefore, arbitrary and suspect under

conventional equal protection analysis; and (c) reading Article II, Sections 4 and 34 together

(which I believe is the better approach), that classifications based on gender or sexual

orientation are suspect classifications in their own right and are in addition to those

enumerated in the third clause of this State’s equal protection provision. See Snetsinger, ¶¶

71-97 (Nelson, J., specially concurring).

were, indeed, not implicitly at issue here and (b) is belied by each of these participants’
foundational beliefs opposing homosexuality.
38
¶102 I stand by my concurring opinion. Unfortunately, though, nothing has changed. I am

convinced that until our courts, as a matter of law, accept homosexuals as equal participants

with heterosexuals in our society, each person with exactly the same civil and natural rights,

lesbian and gay citizens will continue to suffer homophobic discrimination. Regrettably,

this sort of discrimination is both socially acceptable and politically popular.

¶103 Naming it for the evil it is, discrimination on the basis of sexual orientation is an

expression of bigotry. And, whether rationalized on the basis of majoritarian morality,

partisan ideology, or religious tenets, homophobic discrimination is still bigotry. It cannot

be justified; it cannot be legalized; it cannot be constitutionalized.

¶104 Every person in Montana is entitled to human dignity; every person in Montana is

entitled to individual privacy; and every person in Montana is entitled to seek happiness in

all lawful ways. These are fundamental rights guaranteed, respectively, by Article II,

Sections 4, 10, and 3 of the Montana Constitution, and no person may be denied these

elemental, natural rights because of his or her sexual orientation. Indeed, while it will, no

doubt, come as a shock to some, the fact is that lesbian and gay people are not excepted out

of the protections afforded by the Montana Constitution. Lesbian and gay Montanans must

not be forced to fight to marry, to raise their children, and to live with the same dignity that

is accorded heterosexuals. That lesbian and gay people still must fight for their fundamental

rights is antithetical to the core values of Article II and speaks, in unfortunate clarity, of a

prevalent societal cancer grounded in bigotry and hate.

¶105 I concur in the Court’s Opinion.
39
 /S/ JAMES C. NELSON

Justice Jim Rice, dissenting.

¶106 Today the Court retreats from its clear declaration of the fundamental constitutional

rights of parents. In exchange, the Court adopts an equitable, case-by-case inquiry to

determine if a third party should be granted a parental interest of a child that must be

balanced against a natural parent’s rights. The Court’s decision will open a Pandora’s Box

of potential attacks upon the right of fit and capable parents to raise their own children. I

dissent from this weakening of parental constitutional rights.

A Parent’s Constitutional Rights

¶107 We have previously recognized “the constitutional rights of a natural parent to parent

his or her child,” explaining that this right requires “careful protection” and is “not merely a

matter of legislative grace, but is constitutionally required.” In re A.R.A., 277 Mont. 66, 70,

919 P.2d 388, 391 (1996). This Court has explained that there are few invasions “into the

privacy of the individual that are more extreme than that of depriving a natural parent of the

custody of his children.” In re Guardianship of Doney, 174 Mont. 282, 285, 570 P.2d 575,

577 (1977). Consequently, we have protected parents against claims adverse to these

constitutional rights by repeatedly holding that “a natural parent cannot be denied custody of

his or her child absent termination of that person’s parental rights for abuse or neglect . . . .”

In re Parenting of J.N.P, 2001 MT 120, ¶ 25, 305 Mont. 351, 27 P.3d 953 (emphasis added).

40
We have erected high legal barriers to protect parents from claims of third parties, holding

that a “finding of abuse, neglect, or dependency is the jurisdictional prerequisite for any

court-ordered transfer of custody from a natural parent to a third party.” J.N.P., ¶ 18

(citation omitted, emphasis added). Even when considering a minimally invasive claim—the

mere visitation of a child by the child’s grandparents—we have rejected on constitutional

grounds the failure to recognize the wishes of a fit parent. Polasek v. Omura, 2006 MT 103,

¶¶ 15-17, 332 Mont. 157, 136 P.3d 519 (“[P]arents have a fundamental constitutional right to

make decisions concerning the care, custody, and control of their children.” (citations and

quotations omitted)).

¶108 However, the Court denies to Maniaci the constitutional protections promised to her

in our previous holdings by removing the “jurisdictional prerequisite,” which has protected

parents against the claims of third parties, and thereby opens wide the door to such claims—

not only against Maniaci, but potentially against all parents. Now, even parents who are fit

and capable, like Maniaci, are potentially subject to the claims of third parties for rights to

their children.

¶109 In reaching this conclusion, the Court misstates or misunderstands our previous

constitutional holdings and offers what I believe are faulty grounds to distinguish those

cases, for the apparent purpose of diminishing the reach of the constitutional rights

previously declared for parents. About our pre-1999 decisions, the Court offers that the

“pre-1999 statutes made termination of parental rights, based upon dependency, abuse, or

neglect, the only option available to the Court before it could award a nonparent a custodial
41
interest,” citing A.R.A. in support. Opinion, ¶ 56 (emphasis added). To the contrary, it was

not the statutes that limited third party claims against parents in those cases, but the

constitutional rights of parents. A.R.A. held that a pre-1999 statute was unconstitutional for

the very reason that it permitted a third party to be awarded a custodial right before the

parents’ rights had been terminated. A.R.A., 277 Mont. at 72, 919 P.2d at 392 (“[Section] 40-

4-221, MCA, is unconstitutional to the extent that it allows the granting of a § -221 petition

prior to the termination of the natural parent’s constitutional rights.”). As we stated when

striking down a subsequent statute in J.N.P., “A.R.A. [was] based on constitutional

considerations.” J.N.P., ¶ 20 (emphasis added). Contrary to the Court’s analysis, it was not

the pre-1999 statutes that limited the claims of third parties, but the Montana Constitution.

¶110 The Court similarly displaces the holding of our 2001 decision of J.N.P., stating that

the third party claimants there “could not rely upon the nonparental statutes in seeking

custody of J.N.P., however, in light of their failure to comply with the statutory pre-

requisites of first establishing a child-parent relationship through a petition filed under § 40-

4-211, MCA.” Opinion, ¶ 63. However, the third party claimants in J.N.P. did file a petition

under § 40-4-211, MCA. J.N.P., ¶ 22. Their claim was rejected, not for failing to satisfy this

“statutory pre-requisite” (similar to the statutory pre-requisite in this case), but because the

parents’ constitutional rights were superior to the statute: “a natural parent cannot be denied

custody of his or her child absent termination of that person’s parental rights for abuse or

neglect . . . .” J.N.P., ¶ 25. Thus, we struck down § 40-4-211 because it suffered “from the

42
same constitutional infirmity as the statute we invalidated in the case of In re A.R.A.” J.N.P.,

¶ 21.

¶111 The Court dismisses the constitutional basis for our holding in Polasek on the ground

that the grandparent visitation statute at issue there was “different” because here the

Legislature has explicitly provided that it is “not necessary” for a natural parent to be found

unfit before awarding a parental interest to a third party. Opinion, ¶ 69. In Polasek, the

statute permitted mere grandparent visitation claims, and yet we held that the statute’s failure

to consider the wishes of a fit parent was unconstitutional. Polasek, ¶¶ 15, 20. Here, as we

consider a third party’s claim to a parental interest of a child, the Court bows to the

Legislature’s determination that parental unfitness need not be shown. The Court’s

reasoning is a non sequitur and its retreat from constitutional principle has permitted the

Legislature to legislate Maniaci’s constitutional rights out of existence.1

1
The Court also states that, in our prior cases, third parties sought to “terminate the parental rights”
of the natural parent in order to secure custody of a child “to the exclusion” of the natural parent.
Opinion, ¶ 56. Without expressly saying so, the Court appears to imply that the subject statute is
less invasive because it does not contemplate termination of the natural parents’ rights and the
complete taking of custody of a child away from a natural parent. However, first, the third parties in
our prior cases did not seek the termination of parents’ interests, but rather they sought to obtain
custody without such termination. That is why we invalidated the statutes. A.R.A., 277 Mont. at 72,
919 P.2d at 392. Secondly, § 40-4-228, MCA, does permit a court to grant a parental interest in a
third party and transfer custody of a child to that party. Indeed, steps in that direction have occurred
here. In its post-judgment orders, the District Court has ordered professional care to be given to
Maniaci’s children without notice to or involvement by Maniaci. It has restricted Maniaci’s access
to the children and to their records. Lastly, even if shared custody is ordered, the loss of custodial
rights to a child is nonetheless extremely invasive and a violation of a fit natural parent’s
constitutional rights. As we have held, we apply strict scrutiny to “any infringement” upon a
person’s right to parent his or her child. Polasek, ¶ 15.
43
¶112 Although the Court goes to great lengths to dismiss the constitutional basis for our

decisions, these decisions clearly stand for the proposition that “a natural parent cannot be

denied custody of his or her child absent termination of that person’s parental rights . . . .”

J.N.P., ¶ 25 (emphasis added). In my view, the Court’s effort to distinguish our previous

holdings is flawed and does not diminish the constitutional rights of parents we have clearly

declared.

The Constitutionality of § 40-4-228, MCA

¶113 We have previously struck down two similar statutes as unconstitutional for failing to

require termination of a parent’s interest before invading a parent’s constitutional rights.

A.R.A., 277 Mont. at 72, 919 P.2d at 392 (stating the statute was “unconstitutional to the

extent that it allows the granting of a § -221 petition prior to the termination of the natural

parent’s constitutional rights” by establishing abuse, neglect, or dependency); J.N.P., ¶ 21

(The prior version of § 40-4-211(4)(b) “suffers from the same constitutional infirmity as the

statute we invalidated in the case of In re A.R.A.”).

¶114 The Legislature has enacted § 40-4-228, MCA, which states, in pertinent part:

(2) A court may award a parental interest to a person other than a
natural parent when it is shown by clear and convincing evidence that:
(a) the natural parent has engaged in conduct that is contrary to the
child-parent relationship; and
(b) the nonparent has established with the child a child-parent
relationship, as defined in 40-4-211, and it is in the best interests of the child
to continue that relationship.

***

44
 (5) It is not necessary for the court to find a natural parent unfit before
awarding a parental interest to a third party under this section.

¶115 First, this statute implicates a fundamental right. “The liberty interest at issue in this

case—the interest of parents in the care, custody, and control of their children—is perhaps

the oldest of the fundamental liberty interests recognized by this Court.” Troxel v. Granville,

530 U.S. 57, 65, 120 S. Ct. 2054, 2060 (2000). Thus, this statute is subject to strict scrutiny

review. Polasek, ¶ 15 (We apply “close scrutiny” to “any infringement on a person’s right to

parent a child.”).

¶116 This statute, like the prior statutes we have invalidated, invades the constitutionally

protected natural parent-child relationship without first requiring termination of the parent’s

interests. This statute thus likewise fails to provide the protection of parental rights that is

“constitutionally required,” A.R.A., 277 Mont. at 70, 919 P.2d at 391 (citing Stanley v. Ill.,

405 U.S. 645, 92 S. Ct. 1208 (1972)), and “[t]herefore, the result must necessarily be the

same.” J.N.P., ¶ 23.

¶117 The reasoning employed by the Court to uphold this statute is flawed for several

reasons. First, having dispensed with our precedent declaring the constitutional rights of

parents, discussed above, the Court takes up the issue of the statute’s validity in a

constitutional vacuum, as if there is no guiding precedent. To fill this vacuum, the Court

looks to the Legislature’s expression of what the Constitution requires, deferring to the

Legislature’s constitutional interpretation. Opinion, ¶¶ 57, 70. However, it is the purview of

the courts to determine the existence and nature of constitutional rights, not the Legislature’s.

45
The Court thus fails to do its duty. In re Lacey, 239 Mont. 321, 326, 780 P.2d 186, 189

(1989) (“[T]he judiciary has authority over the interpretation of the Constitution . . . .”).

¶118 Secondly, the Court offers no rationale explaining how a third party’s relationship

with a child can overcome, constitutionally, a fit and capable parent’s right to raise the child.

It offers no analysis about how the Legislature’s elimination of the fitness requirement can

withstand strict scrutiny. The Court simply declares that the Legislature’s will trumps this

Court’s declaration of constitutional rights.

¶119 The Court defends the statute’s constitutionality by offering that “Montana’s

nonparental statutes avoid constitutional infirmity under the Troxel standard through the twin

thresholds of consideration of the wishes of the natural parent and the need to first establish a

child-parent relationship.” Opinion, ¶ 71. However, Troxel did not reach this question. The

U.S. Supreme Court explicitly declined to reach the question of whether the U.S.

Constitution requires that a parent allow harm to the child before the parent’s rights can be

invaded. Troxel, 530 U.S. at 73, 120 S. Ct. at 2064 (“[W]e do not consider the primary

constitutional question passed on by the Washington Supreme Court—whether the Due

Process Clause requires all nonparental visitation statutes to include a showing of harm or

potential harm to the child as a condition precedent to granting visitation. We do not, and

need not, define today the precise scope of the parental due process right in the visitation

context.”). Thus, the pronouncements of this Court, not the U.S. Supreme Court, provide the

constitutional guidance for this issue. And, as discussed above, we have repeatedly held that

46
the Constitution requires that a parent’s interests must be terminated before the State can

invade a natural parent’s constitutional rights.

¶120 Finally, the Court vaguely references children’s rights in defending the statute. The

Court first states that Maniaci argues that her children “have no constitutionally protected

rights, absent a showing of abuse, neglect, or dependency.” Opinion, ¶ 54. That is incorrect.

Maniaci does not argue that her children have no rights but, rather, that those rights are

precisely as stated by this Court and the U.S. Supreme Court. The Court then offers that the

statute is valid because it balances “the constitutionally protected rights of both the parents

and children in determining the best interests of the child,” Opinion, ¶ 70, but fails to state

what the rights of either party are. I have explained above the parental constitutional rights

declared by this Court. Similarly, this Court has explained that the constitutionally protected

right of a child is “to be with his or her natural parent.” A.R.A., 277 Mont. at 71, 919 P.2d at

391 (citing Stanley, 405 U.S. at 652, 92 S. Ct. at 1213); see also J.N.P., ¶ 17. This is the

companion right to the right of the parent to raise his or her own child. This constitutional

right of the child weighs in favor of the parent’s rights.

¶121 For the reasons above stated, I would strike down the statute.

The Proper Interpretation of § 40-4-228, MCA

“A court is never going to take a parent’s right away without a significant
period of just absolute disregard and abandonment [of] their children.”

--Sponsor, 1999 Statutory Amendments

47
¶122 Even assuming for argument purposes that § 40-4-228, MCA, is valid and

constitutional, a proper reading of the statute and a review of its legislative history reveals

that it was not intended to provide the relief granted to Kulstad by the District Court.

¶123 It should not be necessary to repeat that “[i]n the construction of a statute, the office

of the judge is simply to ascertain and declare what is in terms or in substance contained

therein, not to insert what has been omitted or to omit what has been inserted.” Section 1-2-

101, MCA. However, here the District Court did that very thing—it inserted new language

into the statute. The Court affirms the error.

¶124 Section 40-4-228(2), MCA, provides that a court may award a parental interest to a

nonparent when “(a) the natural parent has engaged in conduct that is contrary to the child-

parent relationship; and (b) the nonparent has established with the child a child-parent

relationship . . . .” Thus, a plain reading of this provision establishes two requirements, one

on the part of the natural parent (conduct contrary to the child-parent relationship), and one

on the part of the third party (establishment of a child-parent relationship).

¶125 However, in applying provision 228(2)(a) to Maniaci, the District Court concluded

that the provision was satisfied because Maniaci engaged in conduct contrary to “an

exclusive child-parent relationship” with her children. Unable to hold from the evidence that

Maniaci had acted in any way “contrary to the child-parent relationship,” as the statute

actually reads, the District Court was forced to add language to the statute—imposing a

judicially-created “exclusive” requirement—in order to conclude that the provision had been

satisfied.
48
¶126 The District Court’s conclusion of law should be reversed because “exclusive” is not

in the statute, and it is beyond the proper role of the District Court to insert that language.

The Court affirms, discussing at length the evidence that Maniaci did not exclude all others

from a child-parent relationship with the children. The Court states that “Maniaci repeatedly

and continually acted contrary to her child-parent relationship,” but the only supporting facts

it cites are those showing that Maniaci acted contrary to an exclusive child-parent

relationship. Opinion, ¶ 78. Further, the Court fails to explain why non-exclusivity is

inherently contrary to Maniaci’s child-parent relationship with her children. Critically, the

Court’s reasoning here demonstrates that, from now on, a parent who does not exclusively

parent her child opens the door to a third party challenge to her parental rights.

¶127 Further illustrating the error in the Court’s interpretation is the resulting collapse of

the two separate statutory requirements into one. If Maniaci’s action of allowing Kulstad to

establish a parent-child relationship is conduct contrary to Maniaci’s relationship with the

children, then subsection 228(2)(a) and (2)(b) cease to be separate requirements. Satisfaction

of 2(b) automatically satisfies 2(a). Thus, the only question is whether Kulstad has

established a parent-child relationship. Applying the statute’s plain language, I would not

require that Maniaci’s conduct satisfy an “exclusive” parent-child relationship.

¶128 Further, the legislative history of the 1999 Amendments illustrates that the District

Court’s order is not what the Legislature intended. In introducing SB 486, Senator Halligan

explained that § 40-4-228, MCA, dealt with a “narrowly defined area,” which he explained

was “where biological parents are not doing their job.” He emphasized in closing remarks
49
that the statute was “very narrow.” He further explained that the provision allowing another

person to stand “in loco parentis” to a child, (subsection 228(4)), is for those situations where

a “parent has not conducted themselves in a way that’s appropriate.” Examples in the

hearing included cases where “parents are gone for a long time”—”four or five years”—with

“no child support, no contact, no anything.” During this discussion, the sponsor was asked

what the standards would be for determining if a parent had acted inappropriately, and the

sponsor included this in his answer:

A court is never going to take a parent’s right away without a significant
period of just absolute disregard and abandonment for their children.2

¶129 The evidence here utterly fails to demonstrate that Maniaci was “not doing [her] job,”

had failed to “conduct[] [herself] in a way that’s appropriate,” “has been gone for a long

time” from her children, left her children with “no child support, no contact, no anything” for

four or five years, or engaged for “a significant period of just absolute disregard and

abandonment” of her children. Yet, these are the kind of situations the Legislature intended

to address by the 1999 Amendments. The Court’s failure to apply the statute as plainly

written results in a grave interpretational error.

The Consequences of the Court’s Decision

¶130 From its emphasis on the facts of this case, it is apparent that the Court has found

Kulstad’s case to be factually compelling, as did the District Court, and, thus, has ruled in

her favor. But the Court has not acknowledged the significance of the most fundamental

2
See minutes and audio recording, 1999 House Judiciary Committee hearing, SB 486.
50
facts of this case: Maniaci is a parent, and Kulstad is not. This distinction involves much

more than semantics. The Court fails to recognize the clearly differing legal rights arising

out of this critical distinction between the parties, and that failure leads to consequences that

go far beyond the resolution of this particular child custody dispute.

¶131 To hold for Kulstad, the Court has, remarkably, withdrawn or narrowed previously

recognized constitutional rights of fit parents. It has removed the “jurisdictional

prerequisite” of termination of the natural parents’ rights, upholding a statute that allows a

third party to establish a parental interest of a child even though that child already has a fit

parent. While the initial consequence of this decision falls upon the litigants in this case,

consequences of geometric proportion will fall in the future upon many fit parents. The

Court’s withdrawing of constitutional protection against third party parenting claims will

permit many claims to proceed, which formerly would have been legally barred. Fit and

capable parents will now be forced to defend against such third parties’ claims. To be sure,

many of these claims will be factually weaker than Kulstad’s claim, and will no doubt fail.

Nonetheless, parents will be forced to defend against them. The U.S. Supreme Court has

recognized that “the burden of litigating a domestic relations proceeding can itself be so

disruptive of the parent-child relationship that the constitutional right of a custodial parent to

make certain basic determinations for the child’s welfare becomes implicated.” Troxel, 530

U.S. at 75, 120 S. Ct. at 2065 (citation and quotations omitted).3

3
Of course, Maniaci has now lost her right to make such “certain basic determinations” for her
children as a result of this litigation.
51
¶132 Lest this be deemed as merely a “sky is falling” concern, it need only be noted that

other cases raising these very issues are already pending before this Court. In In re

Parenting of J.D.B., DA 08-0505, a mother, whose fitness is uncontested, is defending

against a third party parenting claim to her children by her mother-in-law, who has cared for

the children. Citing the precedent relied upon by this dissent, the mother argues in her

briefing that “[w]here third parties seek custody, it has long been the law of Montana that the

right of the natural parent prevails until a showing of a forfeiture of this right . . . . This

forfeiture can only result where the parent’s conduct does not meet the minimum standards

of the child abuse, neglect and dependency statutes.” This is the argument made by this

dissent and that any lawyer studying our precedent would make. See also In re Parenting of

L.F.A., DA 08-0456 (A natural mother argues that a third party “may not simply acquire

parental interests in the children absent significant deference to [a mother’s] constitutional

rights.”).

¶133 There will be many more such cases. A legacy of this decision is the legion of parents

who will be forced to litigate in order to protect the rights that the Constitution once

guaranteed to them. A single parent must now consider whether a new romantic relationship

will jeopardize the right to parent her or his children by way of a future third party parenting

claim. Other like situations abound. As argued by the Appellant in L.F.A.:

Many parents will at times leave their children in the care of a non-parental
partner when they are unable to watch the child. More well-off families might
have a nanny who cares for a child or set of children from their birth. Not
infrequently children will be closer to these caregivers than even their own
parents. Is every boyfriend, girlfriend, relative, grandparent or professional
52
 caregiver to be entitled to parenting rights just because they have cared for the
child?

¶134 There will be further consequences as well. This case may well be reported as a legal

victory for the rights of same-sex couples. Because both sides have stated that the parties’

gender is not a determinative issue in this case, neither the Court nor this dissent has

discussed it. Regardless, the implications of the decision go far beyond the gender of the

particular parties at issue here. There are parameters in neither the statute nor this decision

that limit the kind or number of parties and relationships that will be now subject to

parenting claims. Before this decision, protection of parental constitutional rights, which

required termination of a parent’s rights before granting a parental interest to a third party,

necessarily, by biology and the adoption laws, limited the number of parents a child could

have. However, those inherent limits have now been removed by the Court.4 Consequently,

what if three or four adult partners develop a “parent-child relationship” with a child?

Multiple-party clusters raising children, or polyamorous “families,” are the next wave in

societal relationship experimentation. See Jessica Bennett, Only You. And You. And You.:

Polyamory—Relationships with Multiple, Mutually Consenting Partners—Has a Coming-out

Party, Newsweek (July 29, 2009) (available online at

http://www.newsweek.com/id/209164/page/1); Susan D. James, Polyamory: When One

Spouse Isn’t Enough, ABC News (June 18, 2009) (available online at

http://abcnews.go.com/Health/US/Story?id=7870884&page=1). While it may be at least a

53
little while before a trial court concludes that such claims are in a child’s best interest, claims

to multiple parenting interests arising out of such communal living arrangements are now

legally possible, making them inevitable.

¶135 The abandonment of constitutional principle for the expediency of today’s decision

will have long, far-reaching and negative impacts. I dissent and would reverse the District

Court.

/S/ JIM RICE

4
Kulstad was prohibited from adopting the children under the adoption laws, but the Court has not
held that this prohibition barred Kulstad’s claim. That argument was made by an amicus curiae.
54