No. 14691 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1979 

IN RE THE MARRIAGE OF 

LAURA SCHULTZ, 

Petitioner and Respondent, 

-vsJOHNNIE SCHULTZ, 

Respondent and Appellant. 

Appeal from: District Court of the Thirteenth Judicial District, 

Honorable C. B. Sande, Judge presiding. 

Counsel of Record: 

For Appellant: 

Mouat and Martinson, Billings, Montana 

Craig D. Martinson argued, Billings, Montana 

For Respondent: 

Ralph Herriott argued, Billings, Montana 

Submitted: September 17, 1979 

Decided: f4Q3\; 13 1979 

$t"-.' ' t- y-.-,- Filed : :: . ,AO J ,- - 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

Incidental to a decree of marital dissolution, the 

Yellowstone County District Court awarded custody of three 

minor children to their mother. The decree recited that both 

parents were fit and proper persons to be granted custody but 

that the best interests of the children dictated maternal 

custody . 

Approximately a year and a half after the decree, the 

mother was seriously injured in an automobile accident and 

confined to a hospital. The children were cared for by a 

maternal aunt and grandmother. Some five weeks after the 

accident, the mother died. 

Following her death, the father requested custody of 

the children from the grandmother and aunt. The request was 

denied, and the father filed a motion for an order to show 

cause why he should not be allowed immediate custody. Hours 

later, the maternal aunt and her husband filed a petition for 

appointment as guardians of the children. The District Court, 

by ex parte order, appointed the aunt and uncle temporary 

guardians and set a date for hearing the petition. The 

father then petitioned for a writ of habeas corpus, requesting immediate custody of the children. The guardianship and 

habeas corpus petitions were consolidated by stipulation and 

the matter was heard by the Yellowstone County ~istrict 

Court, the Honorable C. B. Sande presiding without a jury. 

The hearing was termed "a full hearing . . . on the matter 

of custody and as to whether or not the minor children had 

been abused and are dependent and neglected." 

The District Court found that the children were dependent and neglected and concluded their best interests would 
be served by granting custody to the aunt and uncle. The 

court entered an order to that effect, and the father appeals. 

We hold the District Court was without jurisdiction to 

act as it did. Accordingly, its order is vacated. 

Section 40-6-221, MCA, provides: 

". . . 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, services, and earnings of the 

child. " 

Under this section, the father automatically assumed the right 

to custody of the children at the moment of the mother's death. 

In Henderson v. Henderson (1977) , Mont. , 568 P.2d 

177, 179, 34 St.Rep. 942, 944, this Court attributed great 

weight to the parental right of custody and equated it with 

actual physical custody. We do not depart from the rule in 

this decision. 

In Henderson we stated: "If a nonparent (a grandparent 

or an aunt or an uncle, perhaps) wants to acquire custody, he 

must commence proceedings under . . . the typical Juvenile 

Court Act." 568 P.2d at 181, 34 St.Rep. at 947, quoting 

Comment, 9 Uniform Laws Annotated, Marriage and Divorce Act, 

8401, p. 504. In Matter of Guardianship of Doney (1977), 

Mont . , 570 P.2d 575, 577, 34 St-Rep. 1107, 1109-1110, 

we held: 

"A judicial hearing and finding of dependency 

and neglect under [Title 41, Chapter 3, MCA], 

or judicial finding of willful abandonment or 

willful nonsupport under section [40-8-111, 

MCA], are the exclusive means by which a 

natural parent may be involuntarily deprived 

of custody of his children. In the absence 

of such showing, the natural parent is legally 

entitled to the custody of his minor children. 

Section [40-6-221, MCA] . " 

The reasoning in Doney merits repeating: 

"Where a child has allegedly been abused or 

neglected by his natural parent, the state 

has a clear duty to protect the child by 
means of a judicial hearing to determine whether the youth is in fact abused or neglected. 

There are, however, few invasions by the state 

into the privacy of the individual that are 

more extreme than that of depriving a natural 

parent of the custody of his children. For 

this reason, the legislature carefully enunciated the procedures the state must follow 

and the findings which the court must make 

before custody of a child may legally be taken 

from a natural parent." 570 P.2d at 577, 34 

St.Rep. at 1109. 

Unless the statute is followed, the court is without jurisdiction to remove custody. In Matter of Guardianship of 

Aschenbrenner (1979) , Mont. , 597 P.2d 1156, 1163- 

1164, 36 St.Rep. 1282, 1290-1291. The procedures must be 

rigorously followed. In re Guardianship of Evans (1978), 

Mont. , 587 P.2d 372, 376, 35 St.Rep. 1765, 1773. 

No argument can be made that the jurisdictional prerequisites were complied with. The county attorney did not, 

as required by section 41-3-401(1), MCA, file the petition. 

The petition did not allege abuse, neglect or dependency. 

Sections 41-3-401 (1) and 41-3-401 (9) (a), MCA. The natural 

father of the children who had legal custody (as discussed 

above) was not personally served with a copy of the petition. 

Section 41-3-401(4), MCA. The Department of Social and Rehabilitation Services was not "cited" to the case. Section 

41-3-401(8), MCA. The order of the court, entered in the 

absence of jurisdiction, is void. State v. District Court 

(1926), 75 Mont. 147, 242 P. 959. 

In view of the fact the District Court found that the 

children were abused and neglected, we hereby request the 

Yellowstone County attorney's office to consider an action 

under the Dependency, Neglect, and Abuse statute. Title 41, 

Section 3, Montana Code Annotated. Until further order of 

the District Court, the children are to remain with their 

aunt and uncle. 

7 
We concur: 

Chief Justice 

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' Justices 1 

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