NO. 92-126 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

IN RE THE MARRIAGE OF 

CYNTHIA K. BLACK, f/k/a 

CYNTHIA K. WEIS, 

Petitioner and Respondent, 

and 

GERALD T. WEIS, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable G. Todd Baugh, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Craig W. Halt, Attorney at Law, Billings, Montana 

For Respondent: 

Terry Wallace, Attorney at Law, Missoula, Montana 

Submitted on Briefs: July 2, 1992 

Decided: September 1, 1992 
Justice Fred J. Weber delivered the Opinion of the Court. 

Mr. Weis filed a petition to modify the decree of dissolution 

in his attempt to change the primary residential custody of the 

parties' three children. After a hearing, the District Court for 

the Thirteenth Judicial District, Yellowstone County, denied Mr. 

Weis' petition. Mr. Weis appeals. We affirm. 

The sole issue for our review is whether the District Court 

erred when it refused to let the children testify as to their 

wishes. 

Cynthia (who changed her last name to her maiden name of 

Black) and Gerald Weis were divorced in Yellowstone County, Montana 

on June 28, 1989. There were three children of the marriage. The 

court awarded joint legal custody and ordered that primary 

residential custody be alternated between the parents annually for 

five years. The court further ordered that the non-residential 

parent was entitled to visitation on alternate weekends, 

Thanksgiving and half of the school Christmas break. Because one 

daughter, Irena, had asthma, the court ordered the parents not to 

allow anyone to smoke in her presence or in the house where she was 

residing or visiting. 

On October 7, 1991, Mr. Weis filed a petition for modification 

of residential custody designating him as the permanent primary 

custodian. He alleged that when the children were in the primary 

custodial care of Ms. Black, Irena's health was endangered because 

of "continual contact with direct and passive smoking". He also 

alleged that all three children were endangered physically and 

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emotionally by Ms. Black's past and present live-in boyfriends. 

In his affidavit in support of his motion, Mr. Weis averred 

that all three children were sick and in need of medical care when 

he picked them up from Ms. Black's home on September 23, 1991. He 

claimed Olivia had tonsillitis and an ear infection requiring 

medication: Esther had an ear infection requiring medication: and, 

Irena was suffering from bronchial asthma and an ear infection 

requiring medication. Mr. Weis claimed that Ms. Black and her 

boyfriend continued to smoke in Irena's presence, in spite of 

Irena's asthma. He further claimed that Ms. Black's present 

boyfriend continually yelled at the children which frightened them 

and caused undue stress. He maintained that her former boyfriend 

physically hurt the children. Finally, he maintained that Ms. 

Black neglected the physical care of the children by not requiring 

them to bathe. 

In response to Mr. Weis' motion, the District Court issued a 

temporary restraining order and order to show cause prohibiting Ms. 

Black from having custodial care of the children. The temporary 

restraining order remained in effect until a full bearing on the 

petition for modification of custody was held on January 10, 1992. 

At the hearing, Ms. Black testified that she does not smoke in 

the house. She further testified that when Mr. Weis picked up the 

children on September 23, 1991, that Irena was not having an asthma 

attack as Mr. Weis had claimed. Rather, she testified that Irena 

had a cold which she was treating with an over-the-counter 

medicine. Ms. Black testified that although she had never heard 
her boyfriend yell at her children, they have told her he is mean. 

She testified that after talking to the children about it, she felt 

the problem was really that the children did not want to accept her 

boyfriend as a disciplinarian figure. She further testified that 

they were all getting along very well at the time of the hearing. 

Near the conclusion of the hearing, Mr. Weis requested that 

the District Court interview all three children prior to coming to 

any conclusion, in hope that the children's testimony might confirm 

or deny their mother's testimony. The District Court denied Mr. 

Weis' petition to modify residential custody without interviewing 

the children. Mr. Weis appeals. 

The sole issue before us is whether the District Court erred 

when it refused to let the children testify as to their wishes. 

Mr. Weis maintains that in determining the best interests of 

the child, the District Court is required by § 40-4-212, MCA, to 

consider the wishes of the children as to their custodian. 

Ms. Black maintains that $j 40-4-219, MCA, controls in a 

modification procedure and that the stringent adherence to the 

factors of § 40-4-212, MCA, is not required. We agree. Custody is 

not at issue here: modification of primary residential custody is. 

Section 40-4-219, MCA, provides: 

(1) The court may in its discretion modify a prior 

custody decree if it finds, upon the basis of facts that 

have arisen since the prior decree or that were unknown 

to the court at the time of entry of the prior decree, 

that a change has occurred in the circumstances of the 

child or his custodian and that the modification is 

necessary to serve the best interest of the child and if 

it further finds that: 

. . . 

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(c) the child's present environment endangers seriously 

his physical, mental, moral, or emotional health and the 

harm likely to be caused by a change of environment is 

outweighed by its advantages to him; 

(d) the child is 14 years of age or older and desires 

the modification: 

. . . 

The Weis children were all under 14 years of age at the time of the 

hearing. Therefore, the District Court was not required to 

consider their wishes as to custody. However, although the court 

did not interview all the children, it did consider their wishes as 

described in the testimony of Dr. Veraldi. In explaining its 

decision to deny modification of primary custody, the District 

Court stated: 

On October 9, 1991, the Court talked with the oldest 

child, Olivia, and the Court has reviewed Dr. Veraldi's 

notes attached to her deposition which reflect her 

interview with all three children. Mr. Weis has 

requested that this Court interview the children but the 

Court finds that to be unwarranted and unnecessary. 

. . . 

The children express a preference for the father but 

have a fair relationship with the mother. The basis of 

the children's preference seems to be a dislike of 

mother's boyfriend and the fact that the father is able 

to take them more places, buy them more things, and the 

fact that he does not make them work around the house. 

Some of these reasons are somewhat shallow and immature, 

as one might expect of young children. 

When Mr. Weis got the Court to issue a temporary 

order last September giving him residential custody, 

things were just beginning to stabilize in the mother's 

home and a better relationship between the children and 

the mother's boyfriend was beginning to develop. Given 

that, the children's relationships with others and their 

expressed preferences are not enough to convince this 

Court that their best interests would be served by 

modifying residential custody. 

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Clearly the District Court considered the children's wishes. 

We hold that the District Court did not err when it refused to let 

the children testify as to their wishes. 

Affirmed. 

We Concur: 

Justices 

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September 1, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

Craig W. Holt 

Attorney at Law 

490 N. 31st St., Ste. 205 

Billings, MT 59101 

Terry Wallace 

Attorney at Law 

P.O. Box 4763 

Missoula, MT 59806 

ED SMITH 

CLERK OF THE SUPREME COURT