Silseth v. Levang

• Court: North Dakota Supreme Court
• Writing for the Court: PAULSON; ERICKSTAD, C.J., and VOGEL; TEIGEN; KNUDSON
• Citation: Silseth v. Levang, 214 N.W.2d 361 (N.D. 1974)
• Decision Date: 03 January 1974
• Docket Number: No. 8920,8920
• Parties: Judith Levang SILSETH, formerly Judith Levang, Plaintiff and Appellant, v. Leroy LEVANG, Defendant and Appellee. Civ.

Page 361

214 N.W.2d 361

Judith Levang SILSETH, formerly Judith Levang, Plaintiff and Appellant, v. Leroy LEVANG, Defendant and Appellee.

Civ. No. 8920.

Supreme Court of North Dakota.

Jan. 3, 1974.

Syllabus by the Court

1. In providing for the custody and care of a minor child, the welfare and best interests of such child is the primary concern of the court.

2. As between parents adversely claiming the custody or guardianship, neither parent is entitled to it as of right, but other things being equal, if the child is of tender years, it should be given to the mother. § 30--10--06(2), N.D.C.C.

3. The general rule as to preference to be given to the mother in the award of custody of a young child is not inflexible and applicable in every case merely because the mother has not been shown clearly unfit. It is merely an aid to the court or one facet of the basic principle that the best interests and welfare of the child are the controlling considerations. The general rule is qualified by the requirement that other things be equal. Accordingly, such a child may be awarded to the father, in the discretion of the court, if the circumstances of the case require it for the child's best interests.

4. It is not in the best interests of a child to unnecessarily change custody and bandy the child back and forth between parents. Stability is desirable.

5. A finding that the best interests of a child of the parties to a divorce action would be served by awarding custody of the child to one party as opposed to the other is appropriately dealt with on appeal as a finding of fact. Consequently, a review of that finding is limited to a determination of whether or not it is clearly erroneous under Rule 52(a), N.D.R.Civ.P.

6. For the reasons stated in the opinion, the trial court's findings are not clearly erroneous.

Donald C. Holand, Fargo, for plaintiff and appellant.

Stetson & Jones, Lisbon, for defendant and appellee.

PAULSON, Judge.

This is an appeal from a district court judgment which placed custody of the minor child, Jill Lynn Levang (hereinafter Jill), in her natural father, Leroy Levang (hereinafter Leroy), and which denied the petition of the natural mother, Judith Levang Silseth (hereinafter Judith), to gain custody of Jill.

Leroy and Judith were married on September 7, 1968, when they were 21 and 18 years of age, respectively. Their child, Jill, was born on June 26, 1969. On February 15, 1972, Judith obtained a divorce from Leroy on the ground of irreconcilable differences; they had been separated since May of 1970.

Just prior to their divorce, Judith and Leroy entered into a property and custody settlement agreement which placed the custody of Jill with Leroy, with visitation rights in Judith. The agreement also provided that Judith could have the agreement reopened and reviewed at a later date for possible alteration of custody. On November 28, 1972, Judith petitioned to amend the judgment and decree of divorce so as to regain custody of Jill. A hearing on that petition was held on December 15, 1972, and the district judge ordered that an investigation be made of all the parties involved and their families. The attorneys for both Judith and Leroy had previously stipulated that such an investigation could be made and the results used as an aid by the district court in determining custody of Jill.

As previously stated, Judith and Leroy separated in May of 1970. Judith left Leroy and moved to Fargo with Jill to seek employment. Two weeks later Judith returned to her parents' farm and left Jill there while she looked for work. About a week later Leroy took Jill from Judith's parents' farm to his parents' farm, where he also resided.

Judith worked in Fargo for six months and then returned to her parents' farm for five months before enrolling in a secretarial course at the Wahpeton State School of Science for one semester. During this time Jill was with Judith only for some visits; the remainder of Jill's time was spent with Leroy at his parents' farm.

Judith remarried on August 18, 1972, and Leroy remarried on November 8, 1972. The Fargo Area Social Service Center, which conducted an investigation of the parties and their homes, reported that Judith and Leroy, and their respective new spouses, would be adequate parents. The Social Service Center also reported that Jill had lived with her father, Leroy, for most of her life and had developed a strong relationship with her paternal grandparents during the time she lived in their home with Leroy. For these reasons, the Social Service Center representative expressed the belief that a change in custody would detrimentally affect Jill in these relationship.

On March 16, 1973, the distrit court held that Jill should remain in the custody of Leroy, with visitation rights in Judith. The district court stated the reasons for its decision to be that Leroy took the initiative and took Jill into his home, that Jill had lived almost continuously with Leroy, that Judith took quite a while to petition for the custody of Jill, that Jill had a close relationship with her paternal grandparents, and that removal from the home of Leroy would not be in the best interests of Jill and would probably disrupt her life.

Judith is appealing this judgment and claims the district court erred in not awarding her custody under § 30--10--06 of the North Dakota Century Code, which provides:

'Rules for appointing.--In appointing a general guardian or in awarding the custody of a minor, the court is to be guided by the following considerations:

'1. By what appears to be for the best interests of the child in respect to its temporal and its mental and moral welfare, and if the child is of sufficient age to form an intelligent preference, the court or judge may consider that preference in determining the question; and

'2. As between parents adversely claiming the custody or guardianship, neither parent is entitled to it as of right, but other things being equal, if the child is of tender years, it should be given to the mother, and if it is of an age to require education and preparation for labor or business, then to the father.'

Judith claims that all other things were equal and that the best interests of Jill would be served by placing Jill in the custody of her mother, Judith, and that the court improperly relied upon te recommendations of the social worker.

The district court's power with respect to custody in divorce actions is provided for in § 14--05--22, N.D.C.C., which provides:

'Custody of children.--In an action for divorce, the court, before or after judgment, may give such direction for the custody, care, and education of the children of the marriage as may seem necessary or proper, and may vacate or modify the same at any time.'

The criterion used by the district courts in their custody determinations is to award custody in accordance with what is in the best interests of the child or children. Sabot v. Sabot, 187 N.W.2d 59 (N.D.1971); Ficek v. Ficek, 186 N.W.2d 437 (N.D.1971); Noakes v. Noakes, 185 N.W.2d 486 (N.D.1971); Guldeman v. Heller, 151 N.W.2d 436 (N.D.1967).

As stated earlier in this opinion, Judith maintains that she should be awarded custody because Jill is very young and should therefore be with her mother. This claim is based on § 30--10--06, N.D.C.C. In Guldeman v. Heller, Supra, and in Ferguson v. Ferguson, 202 N.W.2d 760 (N.D.1972), we quoted from 27B C.J.S. Divorce § 309(4), at pages 461--463:

'The general rule as to preference to be given to the mother in the award of custody of young children, or so-called 'tender years doctrine,' is not, however, inflexible and applicable in every case merely because the mother has not been shown clearly unfit; and it has been said to be merely an aid to the court or one facet of the basic principle that the best interests and welfare of the child are the controlling considerations. The general rule is qualified by the requirement that other things be equal, and, whether or not such rule has been recognized or affirmed by statute, the mother of a child of tender years is not entitled to its custody as a matter of law. Accordingly, such a child may be awarded to the father, in the discretion of the court, where the circumstances of the case require it for the child's best interests . . ..'

In the instant case, therefore, the district court was not bound by § 30--10--06, N.D.C.C., if all other things were not equal. The district court stated the things done by Leroy that impressed the court. In so stating these actions of Leroy in its decision, the district court made it evident that it thought all other things were not equal: the fact that Leroy took the initiative in taking Jill into his home, that Jill was with Leroy and her paternal grandparents for some time and formed a strong relationship with them, and that Judith waited for some time to try and gain custody of Jill--all point to the fact that all other things were not equal.

In addition, the district court had at its disposal the report of the Fargo Area Social Service Center which stated that a change in Jill's custody might have a disrupting effect on her life. As stated in the record, this was also the belief of the trial judge. There was nothing improper about the district court's use of the investigation report as an aid in the court's decision, because both of the parties involved had agreed that such a report could be made by the social service center and used by the district court. The district court did not rely solely upon that report, but formed its own opinion based on the report as well as on many other factors.

The aversion to changing custody when a child has been living happily in one place for a substantial period finds support in 24 Am.Jur.2d, Divorce and Separation § 820, at page 932, where it is stated:

'. . . where young children have been placed in one home and have remained there for a substantial period of time and the...