No. 88-21

INTHE SUPREME COURT OF THE STATE OF MONTANA
1988

IN RE THE CUSTODYOF PIERRE DANIEL ANDRE, a minor child.
PATRICK G. ANDRE, Petitionerand Respondent,-vsCAROLDOBSON,a/k/aANN McALLISTER, Respondent and Appellant.

APPEAL FROM: District Court of the Fourth JudicialDistrict, In and for the County ofMissoula, The Honorable DouglasHarkin,Judgepresiding.

COUNSELOF RECORD:
ForAppellant:
Klaus D. Sitte,Montana Legal Services, Missoula, Montana
For Respondent: ThomasW. Trigg,Missoula,Montana

Submitted on Briefs: July 14, 1988
Decided: September 16,1988
Filed:Mr. Justice John C. Sheehy delivered the 0pinl.onof 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 JudicialDistrict,Missoula County, which granted custody of the minor child to Patrick Andre, thenatural father. We reverse. Although the parties vigorously contest the factual basis of the District Court's opinion,we conclude that the dispositive issue isone of first impression: namely, what is the appropriate burden of proof justifying a change of physical custodywhen the child has been livingwith aparent 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 1977while bothpartieswere residing in Arizona. The parties soon began living together but never married. Their sonwasborn inAugust 1978. Pierre is Father's only child. Mother has two other children froman earliermarriage. Mother had custodyof the two children following her divorce but admitted shewasnot a good mother. The children were subsequently placed in foster

care by the Arizona Child Protective Services based on reports ofneglect. The children were later returned toMother during her relationship with Father but she was unable to control the children. They were eventually placed with mother's ex-brother-in-lawvoluntarily. 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 employmentasan 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." Fatherwas topay 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 judicialapproval. 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 significantlybutwas stillnot regular. According to Father,Mother's interference and constant moves
were partially responsible for the irregularity. Father continued topayminimal child support. Upon separation, Mother became acquainted with Gary Mitchell as a result of four-year-old Pierre'swandering 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 Garmanbut continued to seeMr. 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, inadequatedress, lack of responsibility, failure to obey his parents, lying, stealing,pants wetting, and failure to do well at school. Fatherand his wife attempted to resolve the problems through constructive, consistent discipline and 

### by enrolling Pierreat a private school at their expense. They have largely remedied theproblems. 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 thework. Her response to otherproblems has alsobeen less than adequate. When Pierre took twenty dollars fromher 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 Pierrewas sticking up for a friend and allows Pierre to be rough with animals. The psychologist concluded that Mother's constant changes of residenceand attempts to changePierre'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 Pierrehad notprovided

a good role model. The psychologist therefore recommended that Father be granted custodywith reasonable visitationby Mother. TheDistrict Court agreed. The dispositive issue in the instant case is the District Court's use of the best interests test, as delineatedin 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 aparent seeking to deprive the custodialparent 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 ofproof, justifying a change of custody in a situation inwhich themother had maintained a de jure custody since the child's birth two 

### - and one-half years earlier. Before reaching themerits, the court first examined the nature of the changed circumstances ruleurged by the mother and the best interests testurged 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 adifferent arrangement would be in the child'sbest 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 Californiamajority went on to hold that the changed circumstances rule did not apply because therehad not been aprior judicialdetermination,a decision which, on its face, conflicts with the stated goal of fostering stability in a child'slife.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, "theUniformMarriage and Divorce Act in effect creates

apresumption that thebest interestsof the child are served by continuation of initial custodial arrangementsand 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 reasonwhy this presumption should be ignored in 

### - de facto or de jure custody arrangements. As 

### - noted by JusticeMosk inhis 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-parentand relatively more affluent families are disproportionately represented in the class of children whose custodywas 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 wasexplained inCarney: "regardlessofhow 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.

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[Citationomitted.1 Burchard, 724P.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 determiningwhich 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. Itwould be unrealistic to
assume that the welfare of a child can better be determined by a court after a shortperiod 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 interactionof 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 apetition tomodify custody.
See also, Burchard, 724 P.2d at 499 (Mosk,J., concurring). We offer no opinion on whether this exception is applicable in the instantcase. 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

ChiefJustlce--- -- JusticesMr. 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 tobe a change in our custody statutes. Ido notdispute the importance of recognizing the length of time aparent serves
as theprimary caretakerof a childwhose custodyhas notyet 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 themajority, 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 inher care,with increased involvementby the father through visitation beginning when the child was 6 years old and continuing to thepresent. TheDistrictCourt made extensive findings regarding the competence of both parents, which adequately justify his decision to award custody to the father even in light of themother's role asprimary caretaker. Iwould defer to the judgment of the District Court in this matter and affirm this decision. Even under themajority'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. 

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