No. 95-512

IN THE SUPREME COURT OF THE,STATE OF MONTANA

1996

IN THE MATTER OF THE ESTATE,

CONSERVATORSHIP, AND

GUARDIANSHIP OF K.M.,

Kr.O., and Ka.O., Minor Children.

APPEAL FROM: District Court of the Ninth Judicial District,

In and for the County of Toole,

The Honorable Marc G. Buyske, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Robert G. Olson, Frisbee, Moore & Olson, Cut Bank,

Montana

For Respondents:

John Doubek, Small, Hatch, Doubek & Pyfer, Helena,

Montana; Scott Swanson, Pendroy, Montana; Terry1

Healy, Healy, McKay & Vogel, Cut Bank, Montana

Submitted on Briefs: November 7, 1996

Decided: December 17, 1996
Justice William E. Hunt, Sr., delivered the Opinion of the Court.

The grandparents of K.M., Kr.O., and Ka.0. appeal the decision

of the Ninth Judicial District Court, Toole County, concluding that

they lack the necessary standing to move for custody of their

grandchildren pursuant to 5 40-4-211, MCA. We affirm.

The sole issue presented on appeal is whether the District

Court erred in concluding that the grandparents of K.M., Kr.O., and

Ka.0. lack the requisite standing to petition for custody of the

children pursuant to § 40-4-211, MCA.

The children at issue in this case are the children of Lora,

the grandparents' daughter. Lora gave birth to K.M. in 1990.

K.M.'s father, Jeff K., initially denied paternity. Once paternity

was established, however, Jeff paid court-ordered child support to

the Child Support Enforcement Division of the Montana Department of

Social and Rehabilitation Services. Although he fulfilled his

legal obligation to contribute to the support of K.M., Jeff never

exercised his right to visitation with his daughter until after

Lora had died and the grandparents had moved for custody of the

children. Jeff and Lora were never married.

In 1992, Lora married Thorn 0. That same year, Kr.0. was

born. In 1993, Ka.0. was born. The grandparents characterize Thorn

and Lora's marriage as "stormy, at best." The couple apparently

separated several times for short periods, during which Lora and

the children would move back to the grandparents' home until she

and Thorn reconciled.

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In July 1994, Thorn, Lora, and the three children moved to

Arkansas, Thorn's home state. In January 1995, Thorn left for

California, leaving Lora and the children in Arkansas. The

grandparents contended that Thorn abandoned Lora and the children

when he left for California; Thorn contended that his move was a

precursor to the entire family's relocation, but that he and Lora

had agreed that she and the kids should not come to California

until he had found work.

Shortly after, Lora moved back to Montana from Arkansas. She

and all three children again lived with the grandparents and Lora

applied to various Montana colleges. At some point she learned

that she had received a grant to attend school in Great Falls. In

MaYI 1995, Lora went down to California, leaving the children with

the grandparents. The grandparents contended she was returning

Thorn's truck to him and that, by this time, the marriage was

essentially over. Thorn contended that Lora came down to California

to pick him up, and that they planned to move the family to Great

Falls while she went to school.

On May 30, 1995, while on their way back to Montana, Lora and

Thorn were involved in a car accident and Lora was killed. The

children were at their grandparents' home at the time of the

accident. On June 5, 1995, the grandparents moved for their

appointment as temporary guardians of the children, which motion

the District Court granted. The grandparents subsequently moved

for custody of the children pursuant to § 40-4-211, MCA; both Jeff

and Thorn opposed this motion. After a hearing, the District Court

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concluded that the grandparents did not have standing to move for

custody of the children and, accordingly, dismissed their petition.

The grandparents appeal.

Following the death of their daughter, the grandparents moved

for custody of the children pursuant to § 40-4-211, MCA, which

addresses who may institute a child custody proceeding.

Section 40-4-211, MCA, provides in part:

A child custody proceeding is commenced in the district

court . . . by a person other than a parent, by filing a

petition for custody of the child in the county in which

he is permanently resident or found, but onlv if he is

not in the uhvsical custody of one of his uarents.

Section 40-4-211(4) (b), MCA (emphasis added). The grandparents

contend that they have standing to move for custody of their three

grandchildren because the children were not in the physical custody

of their fathers when the petition was filed. Rather, the

grandparents contend, the children had been in their physical

custody for at least five months before Lora's death.

We reject the grandparents' contention that they had physical

custody of the children before Lora's death because the children

were living with them. The children were living with Lora, their

mother, who happened to live with her parents at that time.

Therefore, it is uncontroverted that Lora had physical custody

of all the children and that she never relinquished custody to

anyone. Just because the children, the mother, and the

grandparents lived in the same household for some months cannot

serve to vest the grandparents with any right to custody of the

children, any more than sharing a household with any person, be it

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a boyfriend, relative, or roommate, will somehow create in that

person a right to seek custody of the child of another.

The grandparents assert that while they may not have had

physical custody, neither did the fathers at the time of Lora's

death. The grandparents contend it is the lack of parental custody

which gives them standing under § 40-4-211(4) (b), MCA. Again, we

disagree.

Physical custody is not limited to actual possession of a

child. Rather, the phrase "relates to the custodial rights

involved in the care and control of the child." Henderson v.

Henderson (19771, 174 Mont. 1, 5, 568 P.2d 177, 179 (citation

omitted). In Henderson, this Court equated the right to custody

with actual physical custody. In re Marriage of Schultz (19791,

184 Mont. 245, 247, 602 P.2d 595, 596. See also Webb v. Charles

(Ariz.App.1980), 611 P.2d 562, 565; In re Custody of Peterson

(111.19861, 491 N.E.2d 1150, 1153. When one parent dies, the

surviving parent automatically assumes the right to custody of the

couple's children. Schultz, 602 P.2d'at 596.

Given the automatic transfer of the right to custody from the

deceased custodial parent to the surviving parent at the moment of

the former's death, a third party must show far more than mere

physical possession of the child in order to establish standing

under 5 40-4-211, MCA. The third party must demonstrate that the

surviving parent has voluntarily relinquished his or her right to

physical custody & present evidence to show the duration of the
separation between parent and child.' In re Custody of R.R.K.

(19931, 260 Mont. 191, 198, 859 P.2d 998, 1004.

The grandparents argue that Jeff and Thorn both voluntarily

relinquished their right to the care and custody of their

respective children. They contend Thorn relinquished his right to

custody of Ka.0. and Kr.0. by abandoning Lora and the children in

Arkansas when he moved to California. They contend Jeff

relinquished his right to custody of K.M. because he never

exercised his right to visitation with her until after Lora's

death.

Thorn testified that he left Lora and the children in Arkansas

with Lora's agreement and consent. He claimed that they agreed

that he should try to find work in California before sending for

her and the children. He further testified that, far from

abandoning the family, he intended to either bring them to

California or to rejoin them all in Montana. This testimony is

supported by the fact that he was returning to Montana with Lora

when the accident occurred. While the grandparents challenged his

testimony, they did not present evidence sufficient to convincingly

prove that he abandoned his children and thereby voluntarily

relinquished his right to their custody in the event of their

mother's death.

While Jeff did not exercise his right to visitation with his

daughter K.M. until after Lora's death, he fulfilled his legal

obligation to contribute to her support throughout that time. The

grandparents presented no evidence showing that he voluntarily

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relinquished his right to K.M.'s custody except for his failure to

exercise visitation. That, in and of itself, is insufficient to

divest him of his right to parent his child.

As soon as they became aware of the grandparents' petition for

custody following Lora's death, both Jeff and Thorn stepped forward

and asserted themselves to be ready and willing to care for their

children. Because there was no showing that either father had

voluntarily relinquished his right to custody of his respective

child or children, the grandparents did not have standing to

petition for custody pursuant to § 40-4-211, MCA. The decision of

the District Court is affirmed.

We Concur:

Chief Justice

Justices
Justice W. William Leaphart, specially concurring

I concur with the Court's conclusion that the grandparents do

not have standing as persons "other than a parent" to petition for

adoption under § 40-4-211(4) (b), MCA, since the children, although

physically present with the grandparents when their mother died,

were nonetheless in the "custody" of their surviving fathers.

In specially concurring, however, I note that respondent Jeff

K. argued that § 40-4-221(2) (e), MCA:

mirrors the previously existing law embodied in Section

40-4-211(4) (b) M.C.A., giving a non-parent similar

standing in a non-death situation, "but only if [the

child] is not in the physical custody of one of his

parents."

Jeff K.'s argument fails to recognize that there is a substantive

distinction between §§ -211 and -221 with regard to the standing

issue presented in this case. Section 40-4-221, MCA, provides

that, upon the death of a parent granted custody of a child,

custody passes to the surviving noncustodial parent unless one or

more of the parties named in subsection (2) requests a custody

hearing. Included in the list of persons who may request a custody

hearing is "any other person if that person has actual physical

control over the child[.l" Unlike 5 40-4-211(4) (b), MCA, which

focuses on physical "custody," § 40-4-221(2) (e), MCA, focuses on

physical "control." Certainly the grandparents in this matter had

physical control of the children. Accordingly, they would have

standing to request a custody hearing under § -221. The ultimate

decision as to an of award custody under § -221 would be controlled

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by our recent decision in In re A.R.A. (Mont. 1996), 919 P.2d 388,

392, 53 St.Rep. 543, 545-46.

Justice Y

Chief Justice J. A. Turnage and Justice James C. Nelson join in the

foregoing special concurrence.

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