Custody of D.M.G., Matter of

• Decision Date: 05 January 1998
• Docket Number: No. 97-411,97-411
• Citation: 287 Mont. 120,55 St.Rep. 1,951 P.2d 1377
• Parties: In re the Matter of the CUSTODY OF D.M.G. and T.J.G., Minor Children, Micheal A. Greene, Petitioner, Respondent and Cross-Appellant, and Tammy J. Price, Respondent and Appellant.
• Court: Montana Supreme Court

Page 1377

951 P.2d 1377

In re the Matter of the CUSTODY OF D.M.G. and T.J.G., Minor Children,

Micheal A. Greene, Petitioner, Respondent and Cross-Appellant,

and

Tammy J. Price, Respondent and Appellant.

No. 97-411.

Supreme Court of Montana.

Submitted on Briefs Nov. 6, 1997.

Decided Jan. 5, 1998.

Kirk S. Bond, Helena, for Appellant.

Mark P. Yeshe, Helena, for Respondent.

NELSON, Justice.

¶1 In October 1996, Micheal A. Greene (Micheal) filed his petition for custody and visitation of his children, D.M.G. and T.J.G., (hereafter sometimes collectively referred to as the children) in the First Judicial District Court, Lewis and Clark County. Following an evidentiary hearing in March 1997, the court entered its decision on April 29, 1997. This is an appeal by the children's mother, Tammy J. Price (Tammy), and a cross-appeal by Micheal from the findings of fact, conclusions of law and order of the District Court. The court awarded the parties joint custody of their children and provided that, in the event Tammy returns to the Helena area, she is to have primary physical custody of the children. However, if the parties continue to live in separate states, primary physical custody shall be alternated between the parties on a two-year basis with Micheal having custody commencing in August 1997. The court also provided for reasonable visitation by the non-custodial parent. We reverse and remand for entry of a further custody order consistent with this opinion.

BACKGROUND

¶2 Though they never married each other, the parties are the parents of twin sons, born in November 1993. Micheal is employed full time in Helena with a local title company. When the children were born, Tammy quit her employment, stayed home, and became the boys' primary care-giver. When not at work, Micheal was actively involved with the children as a parent. After the parties separated in the summer of 1995, the children resided with Tammy and she received AFDC assistance. Micheal spent a good deal of time with the children, continued to be an actively involved parent, paid child support and provided health insurance. Tammy subsequently began working part time at a grocery store and also completed clerical training courses. Micheal often cared for the children when Tammy was at work or at class.

¶3 In July 1996, after informing Micheal the previous month that she was preparing to leave Helena, Tammy moved to Salem, Oregon. Micheal was not happy about the move, but did not try to stop Tammy from leaving. He testified that he believed the move was only temporary. The record indicates that Tammy's change of residence was prompted because of personal conflict between the parties and because of the availability of better job opportunities and the nearness of family in Salem. Tammy testified that since moving, she feels more in control of her life. She is permanently employed as a shipping clerk. She is self-supporting and earns a salary of about $1,830 per month. Her employment includes medical, dental, retirement and life-insurance benefits. She and the children live in their own home. Her mother and step-father live in Salem and Tammy's mother assists her with the children in the mornings before they go to pre-school and day care. According to Tammy, the children are doing well in Salem. Micheal offered no evidence to the contrary. Tammy has no desire to return to Helena. Micheal has considered moving to Oregon to be near his children, but feels that his roots, family and career are in Helena. Moreover, he states that he is uncertain that, were he to move, Tammy would not change residences again. Tammy and Micheal both have extended family in Helena; Micheal has no relatives in the Salem area.

¶4 Micheal's expert, social worker/clinical counselor Dr. Leta Levoti, testified that generally it is in the best interests of the children of divorced or separated parents that the children have frequent and consistent contact with both parents and, to that end, that both parents should reside in the same community. She stated that occasional, longer visits are not as desirable, and that children who have a healthy, frequent and continuous relationship with both parents have the best chance for a healthy and well-adjusted development. She testified that children who do not enjoy this sort of relationship may suffer problems with regard to role-modeling, self-esteem, behavior, grieving ¶5 In preparation for her testimony, Dr. Levoti met with Micheal and his mother for 1 hour and 30 to 45 minutes. She never interviewed Tammy; she never evaluated either parent with the children; she did not evaluate the children's home; nor did she evaluate the children or their social and emotional development. As indicated, Dr. Levoti opined generally about the detrimental effects on children who do not have a good relationship and frequent contact with both parents. She also testified as to the results of a study which indicated that about one-third of the children of separated parents grow up well adjusted, while one-third turn out "so-so," with the remaining one-third growing up maladjusted. However, Dr. Levoti offered no testimony or opinion as to whether the children in this case, D.M.G. and T.J.G., have suffered or would likely suffer any of the detrimental effects to which she referred by reason of Micheal and Tammy living in distant cities, nor did she have an opinion that Tammy was not acting in the children's best interests when she moved to Salem.

fantasizing (about the missing parent), attachment and abandonment. Dr. Levoti also testified, however, that when a parent has been the primary care-giver for most of a child's life, it can be devastating to the child to be removed from that parent.

¶6 The parties conceded, and the court found, that both Tammy and Micheal were fit parents. The trial court also found that Tammy did not consider the children's best interests in moving to Salem, but acted in her own personal interest and that she did not search for or demonstrate that she could not find comparable employment in Helena. The court rejected as being economically and logistically unrealistic Tammy's stated desire that Micheal have a relationship with the children and visit the children frequently for short periods. The court also found, however, that since their separation, the parties have been able to mutually and amicably arrange reasonable visitation, and the court expected that cooperation to continue in the future.

¶7 Based upon this evidence and this record, the District Court concluded that it was in the children's best interests that both parents reside in Helena and that it was not in the children's best interests that Tammy relocated to Salem, Oregon, or that she remain there. The court determined that D.M.G.'s and T.J.G.'s best interests would be more appropriately served if the children were to have continuing contact with both parents and that this sort of contact could not reasonably occur if Tammy resided in Oregon and Micheal resided in Helena. Accordingly, the court entered the order referred to above. Tammy timely appealed, and Micheal timely cross-appealed.

ISSUES

¶8 Three issues are raised on appeal:

1. Does the District Court's order violate Tammy's constitutional right to travel?

2. Did the District Court err by failing to apply the statutory presumption at § 40-4-212(3)(a), MCA?

3. Did the District Court err by alternating custody every two years?

¶9 This third issue is also the subject of Micheal's cross-appeal. We hold that the trial court's order violates Tammy's constitutional right to travel; that the court erred by failing to apply the statutory presumption at § 40-4-212(3)(a), MCA, in favor of Tammy; and that the court erred in alternating custody every two years.

STANDARD OF REVIEW

¶10 We review a district court's findings of fact relating to child custody and visitation matters to determine whether the findings are clearly erroneous. A finding is clearly erroneous only if it is not supported by substantial evidence, the trial court has misapprehended the effect of the evidence, or a review of the record leaves this Court with the definite and firm conviction that a mistake has been committed. In re Marriage of

Johnson (1994), 266 Mont. 158, 166-67, 879 P.2d 689, 694 (citations omitted). We will not overturn the district court's decision unless a clear abuse of discretion is shown. In re Marriage of Huotari (1997), --- Mont. ----, ----, 943 P.2d 1295, 1297, 54 St.Rep. 884, 885 (citations omitted). Our review as to questions of law is plenary. In re Marriage of Syverson (1997), 281 Mont. 1, 16, 931 P.2d 691, 700, 54 St.Rep. 32, 37.

DISCUSSION

I.

Does the District Court's order violate Tammy's constitutional right to travel?

¶11 Tammy argues that, in conditioning her continued primary physical custody of D.M.G. and T.J.G. on the requirement that she relocate to Helena from her job, home and extended family in Salem, the trial court violated her constitutionally protected fundamental right of interstate travel. This right is recognized in a number of decisions of the United States Supreme Court and in a decision of this Court. On the other hand, Micheal maintains that, in the context of this custody dispute, Tammy's constitutional right of interstate travel is qualified by the special obligations of custody, the state's interest in protecting the best interests of the children and by the competing interests of the non-custodial parent. Though raised by Tammy in the proceedings below, the trial court did not address her constitutional argument in its decision. We conclude that the legal positions of both parties, summarized above, are correct.

¶12 The right of interstate travel has repeatedly been recognized as a basic constitutional freedom. Memorial Hospital v. Maricopa County (1974), 415 U.S. 250, 254, 94 S.Ct. 1076, 1080, 39 L.Ed.2d 306. This right is not mentioned in the federal constitution. Nevertheless,...