No. 88-21 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

IN RE THE CUSTODY OF PIERRE DANIEL 

ANDRE, a minor child. 

PATRICK G. ANDRE, 

Petitioner and Respondent, 

-vsCAROL DOBSON, a/k/a ANN McALLISTER, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Douglas Harkin, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Klaus D. Sitte, Montana Legal Services, Missoula, 

Montana 

For Respondent : 

Thomas W. Trigg, Missoula, Montana 

Submitted on Briefs: July 14, 1988 

Decided: September 16, 1988 

Filed: 
Mr. Justice John C. Sheehy delivered the 0pinl.on of the 

Court. 

Carol Dobson, the natural mother, appeals from the 

findings of fact, conclusions of law and order of the District Court of the Fourth Judicial District, Missoula County, 

which granted custody of the minor child to Patrick Andre, 

the natural father. We reverse. 

Although the parties vigorously contest the factual 

basis of the District Court's opinion, we conclude that the 

dispositive issue is one of first impression: namely, what is 

the appropriate burden of proof justifying a change of 

physical custody when the child has been living with a parent 

pursuant to a custody agreement which has not been scrutinized by a court? 

Carol Dobson (Mother) and Patrick Andre (Father) met 

during the summer of 1977 while both parties were residing in 

Arizona. The parties soon began living together but never 

married. Their son was born in August 1978. 

Pierre is Father's only child. Mother has two other 

children from an earlier marriage. Mother had custody of the 

two children following her divorce but admitted she was not a 

good mother. The children were subsequently placed in foster 

care by the Arizona Child Protective Services based on reports of neglect. The children were later returned to Mother 

during her relationship with Father but she was unable to 

control the children. They were eventually placed with 

mother's ex-brother-in-law voluntarily. 

For most of Pierre's first four years, Mother and 

Father lived together and shared parental responsibility. 

During a portion of this time, Father was the primary caretaker while Mother supported the family through employment as 
an exotic dancer. Mother later resumed the role of primary 

caretaker when Father obtained employment on a seismograph 

crew. 

In 1982, the parties separated permanently. At that 

time, Mother and Father agreed that Mother would retain 

custody of Pierre while Father returned to school and "got 

his life together." Father was to pay an undetermined amount 

of child support and would be allowed to see Pierre when he 

wanted to. The agreement was oral and not presented for 

judicial approval. 

From 1982 until 1984, Father' s contact with, and support of, Pierre was irregular. Beginning in the fall of 

1984, Father took a more active role in his son's life. 

Visitation increased significantly but was still not regular. 

According to Father, Mother's interference and constant moves 

were partially responsible for the irregularity. Father 

continued to pay minimal child support. 

Upon separation, Mother became acquainted with Gary 

Mitchell as a result of four-year-old Pierre's wandering away 

and appearing at Mr. Mitchell's door. Mr. Mitchell and 

Mother later began living together and eventually married. 

At one point in the relationship, Mother left Mr. Mitchell 

and later moved in with Roger Garman but continued to see Mr. 

Mitchell. While Mother was living alone, Pierre would 

usually sleep in the front room when Mother had male guests 

spend the night. 

Father began the instant action in 1985 as a result of 

perceived problems with Pierre. Father was disturbed by 

Pierre's alleged lack of personal hygiene, inadequate dress, 

lack of responsibility, failure to obey his parents, lying, 

stealing, pants wetting, and failure to do well at school. 

Father and his wife attempted to resolve the problems through 

constructive, consistent discipline and by enrolling Pierre 
at a private school at their expense. They have largely 

remedied the problems. 

Mother, on the other hand, is alleged to be unwilling 

or unable to resolve Pierre's difficulties. An impartial 

child psychologist retained by both parents determined that 

Mother's lack of parenting skills and the instability in her 

life had had a negative impact on Pierre. Although Pierre 

was having problems in school, Mother did not consistently 

help with his homework on the days Pierre was with her 

because of her lack of time and her problems understanding 

the work. 

Her response to other problems has also been less than 

adequate. When Pierre took twenty dollars from her purse and 

bought himself a watch, Mother allowed him to keep the watch 

as a birthday present. She explained that he may have 

thought the money was his because it came from his father. 

Incidents of stealing gum were dealt with by having Pierre 

return the gum or by Mother keeping it. Pierre is also 

allowed to be aggressive. He refers to his mother as Carol 

and issues commands to her during play. Similarly, Mother 

did not interfere in a fight she observed because Pierre was 

sticking up for a friend and allows Pierre to be rough with 

animals. 

The psychologist concluded that Mother's constant 

changes of residence and attempts to change Pierre's name had 

led to so much instability and confusion in Pierre's life 

that he was not sure what his name was. In addition, Mother's smoking of marijuana in front of Pierre had not provided 

a good role model. The psychologist therefore recommended 

that Father be granted custody with reasonable visitation by 

Mother. The District Court agreed. 

The dispositive issue in the instant case is the District Court's use of the best interests test, as delineated 
in S 40-4-212, MCA, to deprive Mother of custody. Mother 

argues that her - de facto custody of the child since birth 

imposes a higher burden upon a parent seeking to deprive the 

custodial parent of custody. We agree. 

Although Montana has not addressed the issue of - de 

facto or - de jure custody arrangements, the issue has been 

examined by our sister state of California. In Burchard v. 

Garay (Cal. 1986), 724 P.2d 486, the court was confronted 

with the question of the applicable standard of proof, justifying a change of custody in a situation in which the mother 

had maintained a - de jure custody since the child's birth two 

and one-half years earlier. Before reaching the merits, the 

court first examined the nature of the changed circumstances 

rule urged by the mother and the best interests test urged by 

the father. It reasoned: 

The changed-circumstance rule is not a 

different test, devised to supplant the 

statutory test, but an adjunct to the 

best-interest test. It provides, in 

essence, that once it has been established that a particular custodial 

arrangement is in the best interests of 

the child, the court need not reexamine 

that question. Instead, it should 

preserve the established mode of custody 

unless some significant change in 

circumstances indicates that a different 

arrangement would be in the child's best 

interest. The rule thus fosters the 

dual goals of judicial economy and 

protecting stable custody arrangements. 

(Citations omitted. 1 

724 P.2d at 488. 

Inexplainably, the California majority went on to hold 

that the changed circumstances rule did not apply because 

there had not been a prior judicial determination, a decision 

which, on its face, conflicts with the stated goal of 

fostering stability in a child's life. 
Stability of custody arrangements, whether created 

judicially, by agreement, or by default, is one of the most 

crucial factors in a child's development. Recognizing this 

fact, "the Uniform Marriage and Divorce Act in effect creates 

a presumption that the best interests of the child are served 

by continuation of initial custodial arrangements and allows 

this presumption to he overcome only in the most limited 

circumstances. I' Sharp, Modification of Agreement-Based 

Custody Decrees: Unitary or Dual Standard?, 68 Va.L.Rev. 

1263, 1267-1268 (1982). See generally, SS 40-4-212(4) and 

40-4-219, MCA. We see no reason why this presumption should 

be ignored in - de facto or - de jure custody arrangements. As 

noted by Justice Mosk in his concurring opinion: 

First, the limited application of the 

changed-circumstance rule that the 

majority adopt is in conflict with the 

primary purpose of this rule. The child 

whose custody was established by means 

other than judicial decree has the same 

need for and right to stability and 

continuity--and accordingly the same 

entitlement to the protection the rule 

is intended to provide--as the child 

whose custody was established by judicial decree. Because it is not 

unreasonable to assume that the children 

of two-parent and relatively more affluent families are disproportionately 

represented in the class of children 

whose custody was originally established 

by judicial decree, the majority's 

holding, I fear, will effectively deny 

needed protection disproportionately to 

children of single-parent and less 

affluent families. 

Second, most states--including, until 

today, California--appear to require 

"changed circumstances" to modify custody regardless of how custody was originally established. [Citation omitted.] 

The rationale for this position was 
explained in Carney: "regardless of how 

custody was originally decided upon, 

after the child has lived in one parent's home for a significant period it 

surely remains 'undesirable' to uproot 

him from his 'established mode of living,' and a substantial change in his 

circumstances should ordinarily be 

required to justify that result. " 

[Citation omitted. 1 

Burchard, 724 P.2d at 497. 

Although the end of a relationship is a time of great 

trauma, parents generally love their children and have the 

greatest interest in determining which of them can best care 

and provide for the child. Black v. Black (Cal. 1906), 86 P. 

505, 506. In addition, parents are in a much better position 

to determine custody arrangements. Hassell v. Means (N.C. 

App. 1979), 257 S.E.2d 123, 127. It would be unrealistic to 

assume that the welfare of a child can better be determined 

by a court after a short period of self-interested testimony. 

We therefore conclude that the changed circumstances rule and 

best interests test, as set forth in S 40-4-219, MCA, is 

applicable when a parent seeks modification of a - de facto 

custody arrangement. 

However, the primacy of the child's, not the parents' , 

interests requires additional recognition and protection. 

Occasionally, in rare situations, it may appear that while 

circumstances have remained unchanged, custody was clearly 

inadequate since its inception. In such situations, strict 

application of the change of circumstances rule would work as 

a serious injustice to the child and contravene the benefits 

of the flexibility inherent in the interaction of the changed 

circumstances-best interests standard. As stated in 

Svennungsen v. Svennungsen (1974), 165 Mont. 161, 167, 527 

P.2d 040, 643: 
We do not want to be understood as 

implying that a substantial change in 

circumstances would be required as a 

threshold finding in every factual 

situation before the issue of custody 

could be litigated on a petition to 

modify custody . . . [Wle would be 

receptive to the proposition that a 

showing of unfitness on the part of the 

person having custody, or some other 

justifiable grounds might suffice and, 

despite a failure to show a substantial 

change of circumstance, enable the 

district court to consider the issue of 

custody on a petition to modify custody. 

See also, Burchard, 724 P.2d at 499 (Mosk, J., concurring). 

We offer no opinion on whether this exception is applicable 

in the instant case. 

The judgment of the District Court is reversed and 

remanded for a determination of whether a change of circumstances has occurred or the above-stated exception applies. 

The court is also instructed to cause separate counsel to be 

appointed to represent the interests of Pierre. Costs to 

Mother. 

We Concur: #A<~~,,,L Chief Justlce 
--- -- 

Justices 
Mr. Justice Fred J. Weber dissenting. 

I express reservation about this holding because I do 

not feel that the facts of this case justify what I consider 

to be a change in our custody statutes. I do not dispute the 

importance of recognizing the length of time a parent serves 

as the primary caretaker of a child whose custody has not yet 

been determined under our statutory scheme. However, this 

Court should not override the extensive findings and judgment 

of the District Court in this case based on the requirement 

of finding a change in circumstances. Unlike the majority, I 

do not feel that the District Court ignored the fact of 

mother's primary caretaker role. Counsel for the mother 

repeatedly stressed the 9 years in which the child had been 

in her care, with increased involvement by the father through 

visitation beginning when the child was 6 years old and 

continuing to the present. The District Court made extensive 

findings regarding the competence of both parents, which 

adequately justify his decision to award custody to the 

father even in light of the mother's role as primary caretaker. I would defer to the judgment of the District Court in 

this matter and affirm this decision. Even under the majority's holding I find substantial evidence in the record to 

justify the District Court's determination. I respectfully 

dissent. 

Mr. Justice L. C. Gulbrandson joins in thtyforegoing 

dissent. ,' 

,- 

, Justice