Custody and Support of B.T.S., In re

• Decision Date: 09 January 1986
• Docket Number: No. 85-21,85-21
• Citation: 43 St.Rep. 37,219 Mont. 391,712 P.2d 1298
• Parties: In re the CUSTODY AND SUPPORT OF B.T.S.
• Court: Montana Supreme Court

Page 1298

712 P.2d 1298

219 Mont. 391

In re the CUSTODY AND SUPPORT OF B.T.S.

No. 85-21.

Supreme Court of Montana.

Submitted June 27, 1985.

Decided Jan. 9, 1986.

Kathleen Richardson, argued, Havre, for appellant.

Hash, Jellison, O'Brien & Bartlett, James C. Bartlett, argued, Kalispell, for respondent.

GULBRANDSON, Justice.

D.A., the mother, appeals from a judgment of the District Court of the Twelfth Judicial District, Hill County, awarding joint custody of B.T.S. to K.S., the father, and herself and making her award of one-half the prenatal care costs payable in installments beginning in January 1987 with no interest due until then. Reversed for findings.

The mother and father were divorced on August 7, 1981. They were not aware that the mother was pregnant at the time of the dissolution. When their son, B.T.S., was born two months premature on December 17, 1981, the mother selected her maiden name as his surname.

Both parents resided at Swan Lake, Montana at the time of the birth but the three of them never resided together as a family unit. Following B.T.S.'s twelve-day hospitalization after his birth, the mother provided his primary care. Because he was premature and underweight, he slept on a breathing monitor device and had to be awakened every three hours to be fed.

K.S. visited B.T.S. in the hospital two or three times. When the child went home, K.S. visited twice a week at first. Later, the meetings dwindled to once a week because he and the mother could not get along. D.A. returned to her teaching job when B.T.S. was about three weeks old. She asked K.S. to assist with the night feedings and he agreed to stay two nights a week. He did not return after one week. His only other contact with the child during the first nine months occurred when he occasionally babysat.

D.A. remarried in December 1982. She and her husband farm during the summer months. In the winter they live in Whitefish where he works in a local business.

The father moved to Phoenix, Arizona to attend school in October 1982 when B.T.S. was about nine months old. He did not contact the mother until he returned to Swan Lake for Christmas. At that time, B.T.S. stayed with him for one week at the paternal grandparents' home where B.T.S was familiar and comfortable. After he went back to Phoenix he did not contact the mother again until April when he wanted to arrange a visit in July, 1983. The parents disagreed over the visitation arrangements. The mother suggested B.T.S. and his father spend one week getting reacquainted through daytime visits with overnight visits the second week. The father wanted to take B.T.S. with him to Helena the first week, while he worked for relatives, and spend another week with him at the paternal grandparents' home. The father went to Helena alone. When he returned, he spent one day with B.T.S. at the maternal grandparents' home. The mother then brought B.T.S. to the paternal grandparents' home where he was familiar and he spent four days with his father. After this visit, the parents did not communicate except to arrange a one week visit over Christmas in 1983.

On July 19, 1983, the father petitioned the court for joint custody of B.T.S. and requested physical custody, claiming the mother refused to allow frequent and continuous contact between the child and himself. He also requested B.T.S.'s surname be changed to his own and a determination of child support. The cause was heard on April 24, 1984. At trial, Lawrence G. Jarvis, Ph.D., a clinical psychologist specializing in young child development and family relationships, testified. He expressed the following opinions: (1) a child B.T.S.'s age would suffer anxiety and have difficulty adjusting to an abrupt change in environment; (2) the mother and stepfather had warm and loving relationships with B.T.S.; (3) B.T.S. was doing well in his development, motor skills and language; (4) B.T.S. is "bonded" to his mother; (5) custody should remain with the mother because extended periods of separation (i.e. overnight) would cause anxiety in a two-year old; (6) the father should re-enter the scene gradually to establish a long term, ongoing relationship; and (7) over a period of time, they could move into more extended visits "in line with the father's needs." The District Court entered its findings, conclusions and order on October 30, 1984. The court determined that "nothing precludes the awarding of joint custody;" joint custody is in B.T.S.'s best interests; both parents are likely to allow contact with the non-custodial parent; B.T.S. should carry his father's surname; one-half the prenatal costs should be paid by the father in $100 monthly installments beginning January 1987 with interest charged from January 1987; and the father should pay child support of $100 per month. The court's order also set out the arrangement for physical custody. B.T.S. stays with his mother from August 20 to June 10, and with his father from June 11 to August 19. The non-custodial parent is to have other reasonable visitation and the parents are to alternate the major holidays. The mother does not dispute the name change or the award of child support on appeal.

We address three issues:

(1) Did the District Court err by awarding custody of B.T.S. jointly to his mother and father?

(2) Did the District Court err in the manner in which physical custody was divided between the mother and father?

(3) Did the District Court err by ordering reimbursement of the costs of the child's birth payable in installments which would not begin until January 20, 1987 and by not awarding interest from the date of judgment?

We apply the following standard of review in custody issues:

This Court will not substitute its judgment for that of the trier of fact. We will consider only whether substantial credible evidence supports the findings and conclusions. Findings will not be overturned unless there is a clear preponderance of evidence against them, recognizing that evidence may be weak or conflicting, yet still support the findings.

Jensen v. Jensen (Mont.1981), 629 P.2d 765, 768, 38 St.Rep. 927, 930, cited in In re the Custody of C.C. (Mont.1985), 695 P.2d 816, 818, 42 St.Rep. 190, 193. The appellant must overcome the presumption that the judgment of the District Court is correct. In re the Marriage of Jensen (Mont.1979), 597 P.2d 733, 36 St.Rep. 1259.

Sections 40-4-222 and -223, MCA require that an award of joint custody be in the best interests of the child. Relevant factors in any custody determination include:

(1) the wishes of the child's parent or parents as to his custody;

(2) the wishes of the child as to his custodian;

(3) the interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child's best interest;

(4) the child's adjustment to his home, school, and community; and

(5) the mental and physical health of all individuals involved.

Section 40-4-212, MCA. We agree with appellant's contention that additional specific criteria should be considered when determining joint custody.

This Court recognized a commonly used specific factor in Schuman v. Bestrom (Mont.1985), 693 P.2d 536, 539, 42 St.Rep. 54, 57, when we stated "... it seems clear that joint custody will not be satisfactory unless it exists between parents willing to cooperate with each other in custody matters." Citing Lembach v. Cox (Utah 1981), 639 P.2d 197, 200. Other jurisdictions characterize this as a finding that both parents are able to communicate and cooperate in promoting their child's best interests, Beck v. Beck (1981), 86 N.J. 480, 432 A.2d 63, 72, and whether the parents have the ability to cooperate in their parental roles, Lumbra v. Lumbra (1978), 136 Vt. 529, 394 A.2d 1139, 1142. See also Braiman v. Braiman (1978), 44 N.Y.2d 584, 407 N.Y.S.2d 449, 378 N.E.2d 1019; Wilcox v. Wilcox (1981), 108 Mich.App. 488, 310 N.W.2d 434; and 17 ALR4th 1013, Joint Custody of Children. This specific factor relates to subsection (1) of Sec. 40-4-212, MCA, the parents' wishes as to custody. In this case the respondent requested joint custody and the appellant requested sole custody of B.T.S. subject to the father's visitation. Both parties testified as to their inability to agree about B.T.S.'s welfare. The appellant felt she carried the entire burden. She travelled with B.T.S. to other cities for visitation; she maintained the child's contacts with the paternal grandparents; and she sent pictures to the family. The respondent did not write or telephone on any regular or consistent basis after he left Montana. No evidence in the record indicates he attempted to become involved in decisions about B.T.S.'s welfare. Contrary to respondent's contention, Sec. 40-4-212(1), MCA is not irrelevant and "always self-evident."

Section 40-4-212(3), MCA includes the child's interaction and interrelationship with his parents and others who significantly affect the child's best interests as a relevant factor in the custody determination. Here, the District Court's only findings on B.T.S.'s relationships were that he and his step-father have developed a firm father-son relationship and that he has a good relationship with his grandparents. The District Court made no findings as to his interaction or interrelationship with either of his natural parents. "The District Court need not make specific findings on each of the elements. (Citations omitted.) However, the 'essential and determining facts upon which the District Court rested its conclusion' must be expressed." In re Marriage of Hardy (Mont.1984), 685 P.2d 372, 374, 41 St.Rep. 1566, 1569; citing, Cameron v. Cameron (1982), 197 Mont. 226, 231, 641 P.2d 1057, 1060. Particularly in a case such as this, with a post-divorce birth and an absent parent requesting joint custody, findings regarding the interaction and interrelationship of the child with each parent are necessary.

A third...