NO. 82-496 

IN TBE SUPREME COURT OF THE STATE OF MONTANA 

1983 

IN THE MATTER OF THE APPLICATION OF 

KATHERINE IRENE PETERSON on behalf of 

AUDREY ANN PETERSON for a writ of Habeas Corpus. 

Appeal from: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Robert H. Wilson, Judge presiding. 

Counsel of Record: 

For Appellant: 

Michael Sol; Sol & Wolfe, Missoula, Montana 

Rosemary Boschert, co-counsel, Billings, Montana 

For Respondent: 

Michael G. Eiselien, Billings, Montana 

Submitted: March 2, 1983 

Decided: April 1, 1983 

APR 1 - 1983 

Filed: 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

This is an appeal by KIP, the natural mother of AAP, 

from an order issued by the District Court, Thirteenth 

Judicial District, Yellowstone County, deferring jurisdiction 

of a habeas corpus proceedings in Montana to an adoption 

proceedings pending in a Wyoming District Court. 

AAP was born to KIP on March 15, 1980, in Park County, 

Wyoming. At the time of the child's birth, KIP was 20 years 

old and unemployed. In August 1980, the mother relinquished 

custody of the child to PB and AB, husband and wife, who were 

then living in Wyoming. Thereafter, KIP moved to Montana to 

find employment. 

On October 7, 1980, KIP executed a handwritten 

instrument in which she stated that she wanted her daughter 

adopted by PB and AB, which instrument was notarized by a 

notary public residing in Joliet, Montana. 

On the same day, before the same notary, KIP executed a 

written "child custody relinquishment and special power of 

attorney" whereby she placed custody of the minor child with 

PB and AB "for a term of not less than one year and so long 

thereafter as and until such time as temporary custody 

granting hereby shall be terminated by the undersigned." 

On November 21, 1980, before a notary public residing in 

Powell, Wyoming, KIP executed another written instrument in 

which she swore that the father of her daughter AAP was 

unknown to her and in which she prayed the court to grant a 

very speedy adoption. 

An affidavit of Mark L. Reynolds, an attorney residing 

in Big Horn County, Montana, reveals that PB and AB filed an 
adoption petition in the Fifth Judicial District Court of 

Wyoming, Big Horn County. The Wyoming equivalent of the 

Montana Department of Social Rehabilitation Services is the 

Wyoming Department of Public Assistance and Social Services. 

From the attorney's affidavit it appears that the Wyoming 

department has investigated the adoption petition and has 

raised questions as to whether PB and AB would be able to 

provide adequately for the child. It is clear that the 

adoption proceedings in Wyoming are still pending. 

PB had his leg amputated in September 1981, in Billings, 

Montana. He has since been attending Eastern Montana College 

in Billings, Montana. He and his wife are residing with AAP 

in Billings, Montana. At the time of the filing of the 

petition by KIP for a writ of habeas corpus, the affidavit of 

Mark L. Reynolds indicates that it is the intention of PB and 

AB to complete the adoption proceedings and to provide a 

permanent home for AAP. 

On March 19, 1982, before a notary public residing in 

Missoula, Montana, KIP executed a revocation of the temporary 

custody of the minor child previously given by her on October 

7, 1980, to PB and AB. An affidavit of a party notarized in 

Missoula, Montana, indicates personal delivery of the written 

revocation to PB and AB in Billings, Montana, and a 

subsequent information from AB that the revocation had been 

received, and that PB and AB would not relinquish control of 

the minor child. 

On October 12, 1982, KIP filed in the District Court, 

Thirteenth Judicial District, Yellowstone County, Montana, 

her petition for writ of habeas corpus. In her petition she 

recites that she is the legal mother of AAP, that the father 

of the child "has never been judicially identified nor his 
parental rights terminated;" that no court proceedings have 

been initiated to terminate her natural parental rights, and 

in her petition she contends that she executed the 

instruments above referred to under circumstances that would 

amount to fraud and duress. 

There are other facts contended for by the parties in 

briefs and in oral argument, but the foregoing facts reflect 

the state of the court record. 

The District Court, after hearing, made findings of fact 

and conclusions of law. In effect, the District Court found 

that "primary jurisdiction in this case is with the Wyoming 

Adoptive Court," that it was for that court to determine the 

legality and the sufficiency of the documents signed by KIP 

and that if the Wyoming court determined that the documents 

were proper and that KIP had surrendered her parental rights 

in the child, the decision of the Wyoming court would 

determine the custody rights between the parties as a matter 

of law. Thereupon, the Montana District Court deferred 

jurisdiction of the controversy to the Wyoming court in the 

adoption proceedings. 

KIP has appealed the deferral of jurisdiction by the 

Montana District Court to the Wyoming District Court. There 

are no Montana statutes which permit an appeal by a 

petitioner for writ of habeas corpus from the District Court 

to this Court. This Court holds, however, that an appeal 

lies from an order of the District Court denying a writ of 

habeas corpus in a case involving the custody of a minor 

child. State v. Booth (1958), 134 Mont. 235, 239, 328 P.2d 

1104; State ex rel. Veach v. Veach (1948), 122 Mont. 47, 53, 

195 P.2d 697; Ex parte Reinhardt (1930), 88 Mont. 282, 286, 
287, 292 P. 582; In Re Thompson (1926), 77 Mont. 466, 

469-470, 251 P. 163. 

KIP contends before this Court that jurisdiction is in 

the Montana. District Court since all parties were now 

residing in Montana; that before the District Court refused 

the writ, it should have found that Montana was an 

"inconvenient forum," or applied the "substantial conformity" 

test under the Uniform Child Custody Jurisdiction Act; that 

the documents before the Montana District Court created a 

presumption that KIP had the right to the custody of the 

child and that custody jurisdiction was in Montana; that the 

Wyoming adoption proceedings were void because PB and AB had 

failed to comply with Wyoming statutes requiring the adoption 

to be filed when the child enters the prospective adoptive 

home, the hearing to be set when the petition is filed, and 

the petition be filed by persons residing in Wyoming; that 

the adoption proceedings should have been filed in Montana; 

and that PB and AB violated the Interstate Compact for 

Placement of Children Act by bringing AAP to Montana without 

placement authorization from the Wyoming authorities. 

There can be no question that jurisdiction of the habeas 

corpus proceedings is properly in the District Court sitting 

in Yellowstone County. That is where the child is presently 

located, within the jurisdiction of the Yellowstone County 

District Court. Section 46-22-202, MCA. 

It appears equally certain that the Wyoming District 

Court has custody of the adoption proceedings. The petition 

filed therein recites that the proposed adoptive parents and 

the minor child. are residents of Deaver, in the County of Big 

Horn, Wyoming; it alleges the execution of the consent to 

adoption by KIP, filed with the petition, and KIP'S further 
affidavit that the father of the child is unknown to her. In 

Wyoming, any adult persons residing in Wyoming and found by 

the Wyoming court to be fit and competent, may petition for 

adoption. W.S. 1-22-103. The petition is to be filed by 

persons residing in Wyoming. W.S. 1-22-103. Under W.S. 

1-22-111, the Wyoming District Court may defer the entry of 

an interlocutory decree of adoption and order the Division of 

Public Assistance and Social Services to investigate and 

report to the court. Thereafter, it is the duty of the 

Wyoming District Court to determine the best interest and 

welfare of the child with respect to the adoption 

proceedings. Under W.S. 1-22-114, a final decree of adoption 

by the Wyoming District Court deprives a parent of the 

control and custody of the child. 

Wyoming statutes further provide that a written consent 

to adoption by the parent of a minor filed with an adoption 

petition is irrevocable unless the court determines that it 

was obtained by fraud or duress. W.S. 1-22-109. 

Under the state of the record here, the Yellowstone 

County District Court has jurisdiction of the habeas corpus 

proceeding concerning the custody of a child. At the same 

time the Wyoming District Court also has jurisdiction of a 

proceeding concerning the custody of the same minor child. 

In that situation, the Montana District Court is controlled 

by the provisions of section 40-7-107(1), MCA, (Uniform Child 

Custody Jurisdiction Act), in following effect: 

"A court of this state may not exercise its 

jurisdiction under this chapter if at the time of 

filing the petition a proceeding concerning the 

custody of the child was pending in a court of 

another state exercising jurisdiction substantially 

in conformity with this chapter unless the 

proceeding is stayed by the court of the other 

state because this state is a more appropriate 

forum or for other reasons." 
The issues on which KIP relies in the habeas corpus 

proceedings in Monta-na, namely, that the instruments executed 

by her were executed under fraud and duress, are issues that 

are equally triable in the adoption proceedings in the 

Wyoming District Court. Custody proceedings "includes 

proceedings in which a custody determination is one of 

several issues . . . and includes issues of custody in an 

adoption proceeding." Section 40-7-103(3), MCA. 

Counsel for KIP misconstrue the application of section 

40-7-108, MCA (Uniform Child Custody Jurisdiction Act) with 

respect to an inconvenient forum. That statute applies when 

the court in which the proceedings are pending (here the 

Yellowstone County District Court) determines that - it is an 

inconvenient forum, not that the court of another 

jurisdiction or of another state is an inconvenient forum. 

Moreover, the duty of the Montana District Court not to 

exercise its jurisdiction because of the pendency of 

proceedings in another forum under section 40-7-107, MCA, is 

not made statutorily dependent upon a further finding of 

inconvenient forum under section 40-7-108, MCA. 

The Montana District Court here properly made no attempt 

to determine the merits of the issues raised by KIP in the 

habeas corpus proceedings nor do we on this appeal. The 

determination of those issues is properly left to a trier of 

fact in a proper jurisdiction. 

Section 40-7-107, MCA, further provides in subsection 

(3) of that statute: 

" (3) If the court is informed during the course of 

the proceeding that a proceeding concerning the 

custody of the child was pending in another state 

before the court assumed jurisdiction, it shall 

stay the proceeding and communicate with the court 

in which the other proceeding is pending to the end 

that the issue may be litigated in the more 
appropriate forum and that information be exchanged 

in accordance with 40-7-120 through 40-7-123 . . ." 

In cases of simultaneous proceedings, the provisions of 

section 40-7-107 (3) , MCA, should be followed. In this case 

we have a child of tender years, and it is most appropriate 

that a decision be made in a proper forum to determine the 

custodial rights to AAP. In furtherance of that objective, 

we have expedited the proceedings on this appeal. 

It was revealed at oral argument that it has been 

difficult for counsel for both parties to obtain information 

respecting the Wyoming adoption proceedings because they are 

out of state attorneys, and because W.S. 1-22-105, requires 

that all hearings in Wyoming adoption proceedings be 

confidential and held in closed court. 

We therefore affirm the decision of the Yellowstone 

County District Court to stay proceedings and to defer its 

jurisdiction in the habeas corpus action to the jurisdiction 

of the Wyoming District Court in the adoption proceedings. 

We order the presiding judge of the District Court in 

Yellowstone County in the habeas corpus proceedings to 

communicate with the District Court in Wyoming handling the 

adoption proceedings by forwarding to the Wyoming District 

Court forthwith a copy of its findings, conclusions and order 

deferring juri-sdiction to the Wyoming court and a copy of 

this opinion. The stay of proceedings in the Montana 

District Court shall be and remain in effect until written 

notice is received by the Montana District Court of a final 

determination of the Wyoming District Court as to 

jurisdiction or custody. n 

i/ Justice 
We Concur: 

Justices 

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