No. 87-482 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

IN RE THE CUSTODY OF 

J.H., S.H., AND Ja.H. 

APPEAL FROM: District Court of the Sixteenth Judicial District, 

In and for the County of Custer, 

The Honorable Alfred R. Coate, Judge presidinq. 

COUNSEL OF RECORD: 

For Appellant: 

Kevin T. Sweeney, Sweeney and Healow; Billings, Montana 

For Respondent: 

George W. Huss, Brown and Huss; Miles City, Montana 

Submitted on Briefs: February 18, 1988 

Decided: March 29, 1988 

Filed: MAR 2 9 1gW 

Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

The marriage of J. (H.)R. (mother) and T.H. (father) was 

dissolved in 1982. The parents share joint custody of their 

children. Here, the mother appeals the decision of the 

District Court for the Sixteenth Judicial District, Custer 

County, that the children will reside with the father during 

the school year. We affirm. 

The sole issue on appeal is whether the District Court 

erred in not directly asking the children, and in not allowing counsel to ask them, which parent they would prefer to 

live with during the school year. 

At the time of the dissolution of marriage, both parents 

lived in Miles City, Montana. The parents' custody agreement 

originally provided that their two daughters, J. and S., and 

their son, Ja., would reside with the mother from January 1 

to June 30 of each year and with the father from July 1 to 

December 31 of each year. The father has remarried and the 

children have a stepmother and three stepsiblings in that 

household. 

In the fall of 1985, the parents agreed that it would be 

in the children's best interest if they resided with one 

parent for the entire school year and the other parent for 

the entire summer. The agreement was formalized in a written 

stipulation filed with the court. The children lived with 

the father for the entire 1985-86 school year. 

In July of 1986, the mother moved to Billings, Montana, 

and the children went with her pursuant to her summer custody 

right under the modified custody agreement. The father then 

petitioned for a determination of where the children should 

attend school in 1986-87. The hearing was not scheduled 

until October. On August 26, the court made a temporary 

order that the children should be returned to Miles City to 
start the school year. The mother received notice of that 

hearing on August 29. She reported that as she and her 

daughters were discussing that order, the daughters told her 

that they had been sexually abused by their stepbrother in 

Miles City. 

The Yellowstone County Office of Human Services investigated the abuse allegations. The daughters and their stepbrother have had a series of professional counseling 

sessions. In these sessions, one of the daughters has withdrawn her claim of sexual abuse, and the psychologist has 

essentially concluded that the other daughter's claim is 

untrue. The children remained in Billings with the mother 

throughout this period. In May 1987, on motion of the Montana Department of Social and Rehabilitation Services, the 

abuse proceedings were dismissed. In June 1987, the father 

renewed his petition for interpretation of the joint custody 

provisions, and also moved for and was granted temporary 

custody for the summer. 

At the time of the hearing, J. was age 10, S. was age 8, 

and Ja. was age 7. Each parent presented testimony as to 

their own suitability as school-year custodian of the children. Also before the court was the deposition of the psychologist who had counseled the girls concerning the sexual 

abuse report. The court interviewed the two girls in chambers, in the presence of counsel for both parents. 

In its findings and conclusions, the court reviewed, as 

to each parent's household, the children's familiarity with 

the school they would be attending, their opportunities for 

contact with extended family, their integration into the 

family, the stability of the family, and the physical and 

mental health of each parent. While it found both parents 

were fit as custodians, it also found that in the father's 

home the children would have greater opportunity for contact 
with extended family, would attend a school with which they 

were familiar, and would have the benefit of a stepmother and 

stepsiblings with whom they have integrated well. The court 

found that the children were "too young to express any type 

of a binding wish as to residential custody." It further 

found that "given the youth of the children, this Court is 

not willing to place the children in a position to have to 

make such decision." The court concluded that the children 

should reside with their father during the school year. The 

mother appeals. 

Did the District Court err in not directly asking the 

children, and in not allowing counsel to ask them, which 

parent they would prefer to live with during the school year? 

Modification of the physical custody provisions of a 

joint custody decree is governed by 5 40-4-212, MCA. In re 

Marriage of Paradis (Mont. 1984), 689 P.2d 1263, 41 St.Rep. 

2041. Section 40-4-212, MCA, provides: 

The court shall determine custody in accordance with the best interest of the child. The 

court shall consider all relevant factors, including but not limited to: 

(1) the wishes of the child's parent or 

parents as to his custody; 

(2) the wishes of the child as to his 

custodian; 

(3) the interaction and interrelationship of 

the child with his parent or parents, his siblings, 

and any other person who may significantly affect 

the child's best interest; 

(4) the child's adjustment to his home, 

school, and community; 

(5) the mental and physical health of all 

individuals involved; 

(6) physical abuse or threat of physical 

abuse by one parent against the other parent or the 

child; and 
(7) chemical dependency, as defined in 

53-24-103, or chemical abuse on the part of either 

parent. 

In several opinions, this Court has discussed the requirement 

under this section that the child's wishes be considered. A 

district court was required to make specific findings stating 

the wishes of children ages 15, 13 and 11 as to their custodian. In re Marriage of Kramer (1978), 177 Mont. 61, 580 

P.2d 439. This Court held that the lower court must give a 

reason if the wishes of the children were not followed. 

Kramer, 580 P.2d at 444. Although a district court is not 

always required to make specific findings on each element 

under 40-4-212, MCA, there should be an indication that the 

court considered all factors. Speer v. Speer (1982), 201 

Mont. 418, 654 P.2d 1001; In re Marriage of Keating (Mont. 

1984), 689 P.2d 249, 41 St.Rep. 1865. The court must set 

forth the facts upon which its conclusion under 40-4-212, 

MCA, is based. In re Marriage of Hardy (Mont. 1984), 685 

P.2d 372, 41 St.Rep. 1566. Most recently, we have held that 

district courts must consider the children's wishes as to 

their custodian and make findings as to their wishes or why 

those wishes were not followed. In re Custody of C.C. (Mont. 

1985), 695 P.2d 816, 42 St.Rep. 190. In that case, the 

record contained no evidence on the children's wishes. 

Recognizing that because of their ages their wishes may have 

little weight, we nevertheless remanded for inclusion of 

evidence of their wishes. 

In the present case, the psychologist stated that it was 

very important that the court elicit and consider J.'s and 

S.'s wishes as to where they would like to live. She testified that the girls wouldn't object to switching back and 

forth between the two households, so long as they could be in 

one household for the full school year. The mother and the 
stepmother each testified that the children would like to 

live in their respective households. 

The court interviewed J. and S. at some length in chambers. Without directly asking with which parent they would 

prefer to live during the school year, the court asked other 

questions about which place they preferred. The girls did 

not indicate any preference between the schools in Billings 

and in Miles City, although when asked again by counsel, J. 

said she liked her school in Billings "a little more." The 

girls said that both parents had nice houses. They said they 

liked their mother's boyfriend, their father's wife, and 

their stepsiblings. They said they liked to go hunting in 

the fall with their dad. 

In response to counsel s questioning in the judge ' s 

chambers, the girls repeated their allegation of sexual abuse 

by their stepbrother. They stated that they are not now 

afraid of him, however. It is important to note that the 

investigation of the claim has resulted in a dismissal of the 

abuse proceedings. We also reiterate that in extensive 

counseling sessions, one of the girls has withdrawn her 

allegation and the psychologist has concluded that the alleged sexual abuse did not occur. The psychologist testified 

that the girl who continues to claim the sexual abuse occurred should remain in counseling, wherever she lives. 

We refuse to state categorically, as the mother would 

have us do, that because a district court has failed to 

directly ask the children which parent they would rather live 

with, the judgment must be reversed. Where, as here, the 

court has received evidence on and made findings on the 

wishes of the children as to their custodian, we will not 

disturb the discretion of the court. Because no suggestion 

has been made that the three children should be split up, we 

further conclude that the mother has not shown that the court 
abused its discretion in failing to interview the youngest 

child, the 7-year old boy. 

Affirmed.