A.R.A., In re
| Decision Date | 20 June 1996 |
| Docket Number | No. 95-243,95-243 |
| Citation | 277 Mont. 66,53 St.Rep. 543,919 P.2d 388 |
| Parties | In re A.R.A., a minor child. Patrick ERGER, Petitioner and Respondent, v. William D. ASKREN, Jr., Respondent and Appellant. |
| Court | Montana Supreme Court |
Rodd A. Hamman (argued) and Robin A. Wolff, Calton Hamman & Wolff, Billings, for Appellant.
Damon L. Gannett (argued), Gannett, Anderson & Liechty, Billings, for Respondent.
Joseph P. Mazurek, Attorney General, Patricia A. Jordan, Assistant Attorney General (argued), Helena, for Amicus Curiae.
This is an appeal from a decision of the Thirteenth Judicial District Court, Yellowstone County, awarding custody of A.R.A. to Patrick J. Erger. We reverse and remand to the District Court for proceedings consistent with this opinion.
We restate the issues as follows:
1. Did the District Court err in awarding custody of the child to a stepparent over a natural parent based on the best interest of the child test?
2. Did the District Court err in failing to set forth reasons for denial of attorney fees?
Tracy Erger and William (Bill) Askren were married in 1983. A.R.A. was born to them in 1987. Tracy and Bill divorced in 1989 when A.R.A. was nineteen months old. In the divorce decree, Tracy was awarded custody of A.R.A. and Bill was given reasonable rights of visitation. Bill was ordered to pay child support in the amount of $200 per month but became delinquent on those payments. Bill moved out of state and was not able to exercise his visitation rights to their full extent. He did, however, keep in touch by telephone and saw A.R.A. approximately once a year for extended periods.
Bill remarried in 1989 to Colleen. They had a daughter in 1990 and were expecting another child at the time of trial. Colleen's daughter from a previous marriage also lives with them. Colleen works as a secretary for the Salt Lake County Sheriff's Department and Bill, while not employed, attends a junior college and is studying to become a paralegal.
Tracy married Patrick in 1990 and they had a son, Joshua, in February 1992. In September 1992, Patrick was transferred to Billings and Tracy, A.R.A., and Joshua moved shortly thereafter. Tracy was killed in an airplane crash on December 18, 1992. In her will, Tracy had named Patrick as A.R.A.'s guardian.
Bill, as the surviving natural parent, came to Billings to pick up A.R.A. Patrick refused to relinquish physical custody of A.R.A. to Bill and petitioned the court for custody pursuant to § 40-4-221, MCA. The District Court held a hearing on the matter and ordered that Patrick was the appropriate individual to have custody under the best interest of the child test even though he was not the natural father. From that order, Bill appeals.
Did the District Court err in awarding custody of the child to a stepparent over a natural parent based on the best interest of the child test?
Patrick requested a custody hearing pursuant to § 40-4-221, MCA. That section provides:
(1) Upon the death of a parent granted custody of a child, custody shall pass to the noncustodial parent unless one or more parties named in subsection (2) request a custody hearing. The noncustodial parent shall be a party in any proceeding brought under this section.
(2) Upon the death of a parent granted custody of a child, any of the following parties may request a custody hearing and seek custody of the child:
....
(b) the surviving spouse of the deceased custodial parent;
(c) a person nominated by the will of the deceased custodial parent;
....
(3) The hearing and determination of custody shall be governed by this part.
According to part 2 of Title 40, Chapter 4, Montana Code Annotated, a court shall determine custody pursuant to the best interest of the child. Section 40-4-212, MCA. The factors relevant to the child's best interest include the following:
(a) the wishes of the child's parent or parents as to custody;
(b) the wishes of the child as to a custodian;
(c) the interaction and interrelationship of the child with the child's parent or parents and siblings and with any other person who may significantly affect the child's best interest;
(d) the child's adjustment to home, school, and community;
(e) the mental and physical health of all individuals involved;
(f) physical abuse or threat of physical abuse by one parent against the other parent or the child; and
(g) chemical dependency, as defined in 53-24-103, or chemical abuse on the part of either parent.
....
(4) The following are rebuttable presumptions:
(a) A knowing failure to pay birth-related costs that the person is able to pay is not in the best interest of the child.
(b) Failure to pay child support that the person is able to pay is not in the best interest of a child in need of the child support.
The District Court found that there was a close relationship between Patrick and A.R.A.; that A.R.A. was attached to her brother Joshua; that Patrick's parenting skills are superior to those possessed by Bill; that A.R.A. would be adversely affected by changing schools, therapists, and her primary residence; and that it was in her best interest that she remain in Billings in the family unit to which she had grown accustomed. Based on these findings, the court determined that A.R.A.'s best interest warranted the award of her custody to Patrick.
Bill contends that the court's use of the best interest of the child test in awarding custody to a stepparent abrogates his constitutional right to parent his child. Patrick concedes that Bill has a constitutional right to parent his child but argues that A.R.A.'s fundamental liberty interest and right to privacy in the association with her family is also constitutionally protected. Patrick maintains that the District Court properly balanced the rights of both Bill and A.R.A. in using the best interest of the child test as directed by § 40-4-221, MCA.
The interpretation and application of a statute to a particular set of circumstances are matters of law. Denial of App. for Iss. of Beer/Wine Lic. (1994), 267 Mont. 298, 301, 883 P.2d 833, 835. We will therefore review the District Court's interpretation of § 40-4-221, MCA, for its correctness. See Babcock v. Wonnacott (1994), 268 Mont. 149, 151, 885 P.2d 522, 524.
The District Court interpreted § 40-4-221, MCA, as giving the court the authority to award custody to a stepparent rather than a surviving natural parent using the best interest of the child test. A statute is to be construed according to the plain meaning of its language. Norfolk Holdings, Inc. v. Dept. of Revenue (1991), 249 Mont. 40, 43, 813 P.2d 460, 461. However, it is paramount that we give such construction to the statute as will preserve the constitutional rights of the parties. LaFountaine v. State Farm Mut. Auto. Ins. (1985), 215 Mont. 402, 406-07, 698 P.2d 410, 413.
We recognized the constitutional rights of a natural parent to parent his or her child in In re Doney (1977), 174 Mont. 282, 570 P.2d 575.
This careful protection of parental rights is not merely a matter of legislative grace, but is constitutionally required. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). " * * * The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, Meyer v. Nebraska, supra [262 U.S. 390], at 399, , 67 L.Ed. [1042], at 1045, the Equal Protection Clause of the Fourteenth Amendment, Skinner v. Oklahoma, supra [316 U.S. 535], at 541 , 86 L.Ed. [1655], at 1660, and the Ninth Amendment, Griswold v. Connecticut, 381 U.S. 479, 496, 85 S.Ct. 1678, 14 L.Ed.2d 510, 522 (1965) (Goldberg, J., concurring)." Stanley, 405 U.S. at 651, 92 S.Ct. at 1213, 31 L.Ed.2d at 559.
Doney, 570 P.2d at 577. In a line of cases following Doney, we again stressed the constitutional protection of a natural parent's right to the custody of his or her child. Babcock, 885 P.2d at 524; In re M.G.M. (1982), 201 Mont. 400, 406, 654 P.2d 994, 998; Pierce v. Pierce (1982), 198 Mont. 255, 260, 645 P.2d 1353, 1356; In re Aschenbrenner (1979), 182 Mont. 540, 544, 597 P.2d 1156, 1160. This constitutional protection is based upon the integrity of the family unit which necessarily includes the child's right to be with his or her natural parent. Stanley v. Illinois (1972), 405 U.S. 645, 652, 92 S.Ct. 1208, 1213, 31 L.Ed.2d 551, 559.
Consequently, the state's ability to intrude upon the parent/child relationship must be guarded. Schultz v. Schultz (1979), 184 Mont. 245, 247, 602 P.2d 595, 596; Doney, 570 P.2d at 577. For that reason, "[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." Babcock, 885 P.2d at 524. Therefore, where a surviving parent does not voluntarily relinquish custody, the best interest of the child test can be used only after a showing of dependency or abuse and neglect by the natural parent. M.G.M., 654 P.2d at 998; Aschenbrenner, 597 P.2d at 1162.
Contrary to the above analysis, we have held that it was not error for a district court to apply the best interest of the child test rather than the dependency, abuse, and neglect test as set forth in Doney to determine custody between the natural father and the maternal grandmother. Brost v. Glasgow (1982), 200 Mont. 194, 199, 651 P.2d 32, 34. In Brost, we held that the 1979 Legislature, in § 40-4-221, MCA, changed the test to be used in determining custody when a custodial parent dies. Brost, 651 P.2d at 34. We again refused to require the stricter Doney standard in favor of the best interest of the child test in In re C.G. (1987), 228 Mont. 118, 740 P.2d 1139.
However, in Aschenbrenner and Henderson v. Henderson (1977), 174 Mont. 1, 568 P.2d 177, we held that the Uniform Marriage and Divorce Act (Title 40, Chapters 1 and 4) does not diminish the constitutionally protected rights of a natural parent to...
To continue reading
Request your trial
- In re S.R.
- McDermott v. Dougherty
- Kulstad v. Maniaci
- In re B.H.