NO. 93-430 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1994 

JOHN BABCOCK, 

Plaintiff and Appellant, 

v. 

LISA LYNN WONNACOTT, 

Defendant and Respondent. 

NOV 29 1994 

APPEAL FROM: District Court of the Second Judicial District, 

In and for the County of Silver Bow, 

The Honorable Mark P. Sullivan, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Daniel R. Sweeney, Attorney at Law, 

Butte, Montana 

For Respondent: 

Lisa Lynn Wonnacott, Pro Se, 

Butte, Montana 

Filed: 

Submitted on Briefs: September 1, 1994 

Decided: November 29, 1994 

I 

Clerk 
Justice William E. Hunt, Sr., delivered the opinion of the Court. 

Appellant John Babcock appeals from an order of the Second 

Judicial District Court, Silver Bow County, granting temporary 

custody of his minor child, B.B., to a maternal great aunt. 

Reversed and remanded. 

We state the issue as follows: 

Did the District Court err in granting temporary custody of a 

minor child to a maternal great aunt during a modification of 

custody proceeding between the biological mother who had been 

granted physical and legal custody of the child at dissolution, but 

who, at the time of the hearing, was in the Montana State Prison, 

and the biological father who was granted visitation rights by the 

court in the dissolution, and who now had custody of the child? 

On October 31, 1991, B.B. was born to appellant John Babcock 

and respondent Lisa Wonnocott, an unmarried couple living together. 

After the couple separated, appellant filed a motion to establish 

paternity and to request temporary custody. On April 15, 1992, the 

court entered an order establishing appellant as the natural father 

of B.B. The court granted respondent legal and physical custody of 

B.B., with visitation rights granted to appellant. 

In June 1993, respondent was convicted of felony forgery and 

sentenced to a term of five years, with one year suspended, to be 

served at the Women's Correctional Facility in Warm Springs. The 

Montana Department of Social and Rehabilitation Services had 

custody of the child and turned that custody over to appellant. In 

an effort to gain permanent custody of B. B., appellant filed a 

2 
motion on July 12, 1993, to modify the April 15, 1992, order which 

granted respondent full custody of B. B. The court ordered 

respondent to show cause why appellant's motion to modify should 

not be granted. A hearing on the show cause order was held on 

August 6, 1993. In addition to other witnesses, B.B.'s maternal 

great aunt gave testimony concerning her employment, the number of 

bedrooms in her home, her relationship with B.B., her perceptions 

of B.B.'s physical and emotional condition, her relationship with 

appellant, her care of B.B.'s halg-brother, and her willingness to 

assume temporary custody of B.B. 

On August 12, 1993, the court issued its findings of fact, 

conclusions of law, and order. The court found that it was in the 

best interest of B.B. that he remain in the legal custody of 

respondent, but placed in the temporary custody of his great aunt. 

The court concluded that the environment provided for B.B. by 

appellant seriously endangered B.B.'s emotional health. The court 

then ordered that B.B. be placed in the temporary custody of his 

great aunt while respondent served the remainder of her sentence. 

Appellant was granted week-day visitation rights to allow B.B. to 

visit respondent on weekends. Appellant appeals the court's order. 

Did the District Court err in granting temporary custody of a 

minor child to a maternal great aunt during a modification of 

custody proceeding between the biological mother who had been 

granted physical and legal custody of the child at dissolution, but 

who, at the time of the hearing, was in the Montana State Prison, 
and the biological father who was granted visitation rights by the 

court in the dissolution, and who now had custody of the child? 

This Court will review a district court's conclusions of law 

to determine whether the district court's interpretation of the law 

was correct. In re Marriage of Schara (Mont. 1994), 878 P.2d 908, 

910, 51 St. Rep. 676, 677; In re Marriage of Barnard (1994), 264 

Mont. 103, 106, 870 P.2d 91, 93 (citing In re Marriage of Burris 

(1993), 258 Mont. 265, 269, 852 P.2d 616, 619). 

Respondent is unable to care for B.B. during her 

incarceration, therefore, appellant is entitled to custody under 

5 40-6-221, MCA, which provides that: 

The father and mother of an unmarried minor child are 

equally entitled to the custody, services, and earnings 

of the child. If either parent be dead or unable or 

refuses to take the custody or has abandoned his or her 

family, the other is entitled to the custody . . . of the 

child . . . . We have held that the right of a parent to custody of his or 

her child is a fundamental, constitutional right. In re 

Guardianship of Aschenbrenner (1979), 182 Mont. 540, 544, 597 P.2d 

1156, 1160; Matter of Guardianship of Doney (1977), 174 Mont. 282, 

288, 570 P.2d 575, 577. This constitutionally protected right is 

not weakened by the fact that a child is born out of wedlock. 

Matter of M.G.M. (1982), 201 Mont. 400, 406, 654 P.2d 994, 998. 

The district court is powerless to deprive a natural parent of 

custody of a minor child because it determines that a non-parent 

enjoys more financial resources or leads a more preferable lifestyle than does the parent. Donev, 570 P.2d at 576. Any showing 
that the great aunt might have been able to provide a better 

environment for B. B. was irrelevant to the question of custody, as 

between appellant and respondent, in view of the statutory and 

constitutional rights of a parent to custody. 

It has long been the law in Montana that where a third party 

seeks custody to the exclusion of a natural parent, the right of 

the natural parent prevails until a showing of forfeiture of that 

right. Aschenbrenner, 597 P.2d at 1162-63 (citing Henderson v. 

Henderson (l977), 174 Mont. 1, 10, 568 P.2d 177, 181-82); Matter of 

Fisher (1976), 169 Mont. 254, 259, 545 P.2d 654, 657. "[Albsent a 

finding of abuse or neglect based on clear and convincing evidence, 

parental rights may not be terminated." M.G.M., 654 P.2d at 997; 

Donev, 570 P.2d at 577; In re Matter of J.L.B. (1979), 182 Mont. 

100, 109, 594 P.2d 1127, 1131. 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. 

M.G.M., 654 P.2d at 998; In re Gore (l977), 174 Mont. 321, 327, 570 

P.2d 1110, 1113. Abuse, neglect, and dependency are defined by 

5 41-3-102, MCA, which provides in pertinent part that: 

(2) "Abused or neglectedn means the state or 

condition of a child who has suffered child abuse or 

neglect. ..*. 

(5) (a) "Child abuse or neglect1' means: 

(i) harm to a child's health or welfare, as defined 

in subsection (8) ; or 

(ii) threatened harm to a child's health or welfare, 

as defined in subsection (15). 

(b) The term includes harm or threatened harm to a 

child's health or welfare by the acts or omissions of a 

person responsible for the child's welfare. 
(7) "Dependent youth" means a youth: 

(a) who is abandoned; 

(b) who is without parents or guardian or not under 

the care and supervision of a suitable adult;. 

(c) who has no proper guidance to provide for 

necessary physical, moral, and emotional well-being; 

(d) who is destitute; 

(e) who is dependent upon the public for support; 

or 

(f) whose parent or parents have voluntarily 

relinquished custody and whose legal custody has been 

transferred to a licensed agency. 

(8) "Harm to a child's health or welfare1' means the 

harm that occurs whenever the parent or other person 

responsible for the child's welfare: 

(a) inflicts or allows to be inflicted upon the 

child physical or mental injury: 

(b) commits or allows to be committed sexual abuse 

or exploitation of the child; 

(c) causes failure to thrive or otherwise fails to 

supply the child with adequate food or fails to supply 

clothing, shelter, education, or adequate health care, 

though financially able to do so or offered financial or 

other reasonable means to do so; 

(d) abandons the child by leaving the child under 

circumstances that make reasonable the belief that the 

parent or other person does not intend to resume care of 

the child in the future or by willfully surrendering 

physical custody for a period of 6 months and during that 

period does not manifest to the child and the person 

having physical custody of the child a firm intention to 

resume physical custody or to make permanent legal 

arrangements for the care of the child; or 

(e) is unknown and has been unknown for a period of 

90 days and reasonable efforts to identify and locate the 

parents have failed. .... 

(15) "Threatened harm to a child's health or 

welfare" means substantial risk of harm to the child's 

health or welfare. 

The Legislature has established the procedure under 

5 41-3-401, MCA, which the State must follow, and the findings the 

court must make, before custody of a child may be taken from a 

natural parent. For example, the county attorney did not file a 

petition alleging abuse, neglect, or dependency as required by 
5 41-3-401(1), MCA. As a result, there was no petition alleging 

abuse, neglect, or dependency as required by fr 41-3-401(9) (a), MCA, 

and appellant was not served with a copy of the petition under 

5 41-3-401(4), MCA. Finally, no citation was served on the 

Department of Family Services prior to the hearing, as required by 

5 41-3-401(8), MCA. 

Considerable testimony and evidence was offered challenging 

appellant's parenting skills while establishing the great aunt's 

ability to provide adequate care for B.B. In response, the court 

based its findings and conclusions on a "best interest of the 

child" analysis. The District Court concluded that the best 

interest of B.B. was served by allowing respondent to retain 

custody and by granting temporary custody to the great aunt. 

However, the "best interest of the childt1 analysis should only be 

used after a showing of dependency, abuse, or neglect by the 

natural parent pursuant to § 41-3-102, MCA, or during a custody 

dispute between two natural parents. By relying on a "best 

interest of the child1' analysis, the court did not meet the 

jurisdictional and procedural prerequisites for depriving appellant 

custody of B.B. in favor of the great aunt. Without meeting these 

prerequisites, the District Court had no jurisdiction to deprive 

appellant of custody. Aschenbrenner, 597 P.2d at 1162; Doney, 570 

P.2d at 578. 

After reviewing the record, we conclude that the District 

Court's interpretation of the law was incorrect, and that the award 
of temporary custody to the great aunt was improper and must be 

reversed. 

We hold that the District Court erred in granting temporary 

custody of the minor child, B.B., to a maternal great aunt during 

a modification of custody proceeding between the biological parents 

of the minor child. 

Reversed and remanded for further proceedings in accordance 

with this opinion. 

Justice 

We concur: 

Justices 
Justice Karla M. Gray specially concurring. 

I concur in the Court's opinion. It is my view, however, that 

additional clarification is necessary to prevent confusion in this 

important area of child custody. 

The Court is careful to state that this case involves a child 

custody modification proceeding between the biological mother and 

the biological father. This case does not involve a proceeding in 

which the child's maternal great-aunt sought legal custody of the 

child. Notwithstanding the nature of the proceeding before it, the 

District Court granted temporary custody of the child to the greataunt. The Court holds, and I agree, that the District Court erred 

in doing so. 

In reaching its decision, the Court correctly states that 

under circumstances and statutes not before us here involving an 

abused, neglected or dependent child, custody might be granted to 

a nonparent. It does not address any other circumstances in which 

custody might be granted to a nonparent. 

We held in In re Custody of R.R.K. (1993), 260 Mont. 191, 859 

P.2d 998, that a nonparent could seek custody of a child pursuant 

to the provisions contained in g 40-4-211(4)(b), MCA. I specially 

concur here only to express my understanding that the Court's 

failure to mention this alternative basis through which nonparents 

properly might be granted custody--which, like the situation 

involving an abused, neglected or dependent child, also is not 

before us--is not in any way a negation of our decision in In re 

Custody of R.R.K. 
November 29, 1994 

CERTIFICATE OF SERVICE 

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

following named: 

DANIEL R. SWEENEY 

Attorney at Law 

P.O. Box 3725 

Butte, MT 59701 

Lisa Lynn Wonnacott 

25 E. Granite 

Butte, MT 59701 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA