### 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. 

### JusticeJohn Conway Harrison delivered the Opinion of the Court. Incidental toa 

### decree of 

### marital dissolution, the Yellowstone County District

### Court awarded custody of three minor children to their mother. The decree recited thatboth parents 

### were fitand proper persons tobe granted custody but that the best interestsof the children dictatedmaternal custody

# . Approximately a year and a half after the decree, the mother was seriously injured inan automobile accident and confined toa hospital. The children 

### were cared forby a maternal aunt and grandmother. Some fiveweeks afterthe accident, themother died. Following her death, the father requested custody of the children from the grandmother and aunt. The request was denied, and the father fileda motion for an order to show

cause why he should not be allowed immediate custody. Hours later, thematernal aunt and her husband filed a petition for appointment asguardians 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 

### writof habeas corpus, requesting immediate custody of the children. The guardianship and habeas corpus petitions 

### were consolidated by stipulationand thematter was heard by the Yellowstone County ~istrict Court, the Honorable C. B. 

### Sande presiding without a jury. The hearing was termed "a fullhearing 

# . .

# . on thematter of custody and as towhether 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 theirbest interestswouldbe served by granting custody to the aunt and uncle. The court entered an order to that effect, and the father appeals. Wehold the District Court 

### waswithout jurisdiction to act as 

### it did. Accordingly, 

### its order 

### isvacated. 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 tocustody of the children atthe moment of themother'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. InHenderson we stated: "If a nonparent (agrandparent

or an aunt or an uncle, perhaps) wants to acquire custody, he must commence proceedings under 

# .. . the typical Juvenile Court Act." 568 P.2d at181, 34 St.Rep. 

### at947, quoting Comment, 9 Uniform Laws Annotated, Marriage and Divorce Act, 8401, p. 504. InMatter 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 tothe custody of hisminor children. Section [40-6-221, MCA]

# ." The reasoning inDoney merits repeating: "Where a child has allegedly been abused or neglected by his natural parent, the state has a clear duty toprotect the child bymeans of a judicial hearing todetermine whether the youth 

### is in fact abused or neglected. There are, however, few invasions by the state into theprivacy of the individual that are more extreme than that of depriving a natural parent of the custody of his children. For thisreason, the legislature carefully enunciated the procedures the statemust follow and the findingswhich the courtmust make before custody of 

### a childmay legallybe taken from a natural parent." 570 P.2d 

### at 577, 34 St.Rep. at1109. Unless the statute

### is followed, the court 

### iswithout jurisdiction to remove custody. InMatter 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,

asrequired 

### by section 41-3-401(1), MCA, filethe 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 (asdiscussed 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" tothe case. Section 41-3-401(8), MCA. The order of the court, entered in the absence of jurisdiction, 

### isvoid. Statev. DistrictCourt (1926), 75 Mont. 147, 242 P. 959. Inview of the fact the DistrictCourt found that the children

### were abused and neglected, 

### we hereby request the Yellowstone County attorney's office toconsider an action under the Dependency, Neglect, and Abuse statute. Title 41, Section 3, Montana Code Annotated. Until further order of the DistrictCourt, the children are toremain with their aunt and uncle. 7

### We 

### concur:



### Chief Justice I

' 

### Justices 

# 1 J