No. 85-21 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

IN RE THE CUSTODY AND SUPPORT 

OF B.T.S. 

APPEAL FROM: District Court of the Twelfth Judicial District, 

In and for the County of Hill, 

The Honorable Chan Ettien, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Kathleen Richardson argued, Havre, Montana 

For Respondent: 

Hash, Jellison, O'Bri~n & Bartlett; James C. Bartlett 

argued, Kalispell, Montana 

Submitted: June 27, 1985 

Decided: January 9, 1986 

Filed: ;!h~ &I - 1935 
Mr. Justice L. C. Gul-brandson delivered the Opinion of the 

Court. 

D.A., the mother, appeals from a judgment of the 

District Court of the Twelfth Judicial District, Hill County, 

awarding joint custody of B.T.S. to K.S., the father, and 

herself and making her award of one-half the prenatal care 

costs payable in installments beginning in January 1987 with 

no interest due until then. Reversed for findings. 

The mother and father were divorced on August 7, 1981. 

They were not aware that the mother was pregnant at the time 

of the dissolution. When their son, B.T.S., was born two 

months premature on December 17, 1981, the mother selected 

her maiden name as his surname. 

Both parents resided at Swan Lake, Montana at the time 

of the birth but the three of them never resided together as 

a family unit. Following B.T.S.'s twelve-day hospitalization 

after his birth, the mother provided his primary care. 

Because he was premature and underweight, he slept on a 

breathing monitor device and had to be awakened every three 

hours to be fed. 

K.S. visited B.T.S. in the hospital two or three times. 

When the child went home, K.S. visited twice a week at first. 

Later, the meetings dwindled to once a week because he and 

the mother could not get along. D.A. returned to her 

teaching job when B.T.S. was about three weeks old. She 

asked K.S. to assist with the night feedings and he agreed to 

stay two nights a week. He did not return after one week. 

His only other contact with the child during the first nine 

months occurred when he occasionally babysat. 
D.A. remarried in December 1982. She and her husband 

farm during the summer months. In the winter they live in 

Whitefish where he works in a local business. 

The father moved to Phoenix, Arizona to attend school 

in October 1982 when B.T.S. was about nine months old. He 

did not contact the mother until he returned to Swan Lake for 

Christmas. At that time, B.T.S. stayed with him for one week 

at the paternal grandparents' home where B.T.S. was familiar 

and comfortable. After he went back to Phoenix he did not 

contact the mother again until April when he wanted to 

arrange a visit in July, 1983. The parents disagreed over 

the visitation arrangements. The mother suggested B.T.S. and 

his father spend one week getting reacquainted through 

daytime visits with overnight visits the second week. The 

father wanted to take B.T.S. with him to Helena the first 

week, while he worked for relatives, and spend another week 

with him at the paternal grandparents' home. The father went 

to Helena alone. When he returned, he spent one day with 

B.T.S. at the maternal grandparents' home. The mother then 

brought B.T.S. to the paternal grandparents' home where he 

was familiar and he spent four days with his father. After 

this visit, the parents did not communicate except to arrange 

a one week visit over Christmas in 1983. 

On July 19, 1983, the father petitioned the court for 

joint custody of B. T. S. and requested physical custody, 

claiming the mother refused to allow frequent and continuous 

contact between the child and himself. He also requested 

B.T.S.'s surname be changed to his own and a determination of 

child support. The cause was heard on April 24, 1984. At 

trial, Lawrence G. Jarvis, Ph.D., a clinical psychologist 

specializing in young child development and family 
relationships, testified. He expressed the following 

opinions: (1) a child B.T.S.'s age would suffer anxiety and 

have difficulty adjusting to an abrupt change in environment; 

(2) the mother and stepfather had warm and loving 

relationships with B.T.S.; (3) B.T.S. was doing well in his 

development, motor skills and language; (4) B.T.S. is 

"bonded" to his mother; (5) custody should remain with the 

mother because extended periods of separation (i. e. 

overnight) would cause anxiety in a two-year old; (6) the 

father should re-enter the scene gradually to establish a 

long term, ongoing relationship; and (7) over a period of 

time, they could move into more extended visits "in line with 

the father ' s needs. " The District Court entered its 

findings, conclusions and order on October 30, 1984. The 

court determined that "nothing prec3-udes the awardj-ng of 

joint custody;" joint custody is in B.T.S.'s best interests; 

both parents are likely to all-ow contact with the 

non-custodial parent; B.T.S. should carry his father's 

surname; one-half the prenatal costs should be paid by the 

father in $100 monthly installments beginning January 1987 

with interest charged from January 1987; and the father 

should pay child support of $100 per month. The court's 

order also set out the arrangement for physical custody. 

B.T.S. stays with his mother fror August 20 to June 10, and 

with his father from June 11 to August 19. The non-custodial 

parent is to have other reasonable visitation and the parents 

are to alternate the major holidays. The mother does not 

dispute the name change or the award of child support on 

appeal. 

We address three issues: 
(1) Did the District Court err by awarding custody of 

B.T.S. jointly to his mother and father? 

(2) Did the District Court err in the manner in which 

physical custody was divided between the mother and father? 

(3) Did the District Court err by ordering 

reimbursement of the costs of the child's birth payable in 

installments which would not begin until January 20, 1987 and 

by not awarding interest from the date of judgment? 

We apply the following standard of review in custody 

issues: 

This Court will not substitute its 

judgment for that of the trier of fact. 

We will consider only whether substantial 

credible evidence supports the findings 

and conclusions. Findings will not be 

overturned unless there is a clear 

preponderance of evidence against them, 

recognizing that evidence may be weak or 

conflicting, yet still support the 

findings . 

Jensen v. Jensen (Mont. 1981), 629 P.2d 765, 768, 38 St.Rep. 

927, 930, cited in In re the Custody of C.C. (Mont. 1985), 

695 P.2d 816, 818, 42 St.Rep. 190, 193. The appellant must 

overcome the presumption that the judgment of the District 

Court is correct. In re the Marriage of Jensen (Mont. 1979), 

Sections 40-4-222 and -223, MCA require that an awa.rd 

of joint custody be in the best interests of the child. 

Relevant factors in any custody determination include: 

(1) the wishes of the child's parent or 

parents as to his custody; 

(2) the wishes of the child as to his 

custodian; 

(3) the interaction and 

interrelationship of the child with his 

parent or parents, his siblings, and any 

other person who may significantly affect 

the child's best interest; 
(4) the child's adjustment to his home, 

school, and community; and 

(5) the mental and physical health of 

all individuals involved. 

Section 40-4-212, MCA. We agree with appellant's contention 

that additional specific criteria should be considered when 

determining joint custody. 

This Court recognized a commonly used specific factor 

in Schuman v. Bestrom (Mont. 19851, 693 P.2d 536, 539, 42 

St.Rep. 54, 57, when we stated ". . . it seems clear that 

joint custody will not be satisfactory unless it exists 

between parents willing to cooperate with each other in 

custody matters.'' Citing Lembach v. Cox (Utah 1981), 639 

P.2d 187, 200. Other jurisicti.ons characterize this as a 

finding that both parents are able to communicate and 

cooperate in promoting their child's best interests, Beck v. 

Beck (N.J. 1981), 432 A.2d 63, 72, and whether the parents 

have the ability to cooperate in their parental roles, Lumbra 

v. Lumbra (Vt. 1978), 394 A.2d 1139, 1142. See also Braiman 

v. Braiman {N.Y. 1978), 378 N.E.2d 1019; Wilcox v. Wilcox 

(Mich. 1981), 310 N.W.2d 434; and 17 ALR4th 1013, Joint 

Custody of Children. This specific factor relates to 

subsection (1) of 5j 40-4-212, MCA, the parents' wishes as to 

custody. In this case the respondent requested joint custody 

a.nd the appellant requested sole custody of B.T.S. subject to 

the father's visitation. Both parties testified as to their 

inability to agree about B.T.S.'s welfare. The appellant 

felt she carried the entire burden. She travelled with 

B.T.S. to other cities for visitation; she maintained the 

child's contacts with the paternal grandparents; a-nd she sent 

pictures to the family. The respondent did not write or 

telephone on any regular or consistent basis after he left 
Montana. No evidence in the record indicates he attempted to 

become involved in decisions about B.T.S.'s welfare. 

Contrary to respondent1 s contention, S 40-4-212 (1) , MCA is 

not irrelevant and "always self-evident. " 

Section 40-4-212(3), MCA includes the child's 

interaction and interrelationship with his parents and others 

who significantly affect the child's best interests as a 

relevant factor in the custody determination. Here, the 

District Court's only findings on R.T.S.'s relationships were 

that he and his step-father have developed a firm father-son 

relationship and that he has a good relationship with his 

grandparents. The District Court made no findings as to his 

interaction or interrelationship with either of his natural 

parents. "The District Court need not make specific findings 

on each of the elements. (Citations omitted.) However, the 

'essential and determining facts upon which the District 

Court rested its conclusion' must be expressed." In Re 

Marriage of Hardy (Mont. 1984), 685 P.2d 372, 374, 41 St.Rep. 

1566, 1569; citing, Cameron v. Cameron (1982), 197 Mont. 226, 

231, 641 P.2d 1057, 1060. Particularly in a case such as 

this, with a post-divorce birth and an absent parent 

requesting joint custody, findings regarding the interaction 

and interrelationship of the child with each parent are 

necessary. 

A third specific criterion important to an award of 

joint custody, is the geographic proximity of the parents1 

residences. In Quinn v. Quinn (Mont. 1981), 622 P.2d 230, 38 

St.Rep. 93, this Court remanded an award of joint custody to 

determine whether the best interests of the minor children 

were being served since the geographic distance between the 

parties appeared to be fostering antagonism and instability 
in the home environment. The distance affects the parent's 

access to each other for joint decisions and the extent and 

type of interaction between each parent and the child. In. 

this case, the uncertainty of the father's residence also 

impinges on B.T.S.'s stability in his environment. 

The declared legislative intent for joint custody, as 

stated in § 40-4-222, MCA, is "to assure minor children 

frequent and continuing contact with both parents . . . and 

to encourage parents to share the rights and responsibilities 

of child rearing." This statement is based on sections 4600 

and 4600.5 of California's Civil Code. Like Montana, 

California requires the courts to award custody according to 

the best interest of the child. However, 4600.5 (c) , 

Cal.Civ.Code, requires more than a statement that joint 

custody is in the child's best interests. 

Whenever a request for joint custody is 

granted or denied, the court, upon the 

request of any party, shall state in its 

decision the reasons for granting or 

denvin~ the reauest. A statement that 

ioint physical custody is, or is not, in 

the best interests of the child shall not 

be sufficient to meet the requirements of 

this subdivision. (Em~hasis added. 

Changes enacted to Montana's joint custody provisions by the 

49th Legislature, effective October 1, 1985, reflect the 

California requirement. 

Section 40-4-224(1), MCA, now provides: 

Upon application of either parent or both 

parents for joint custody, the court 

shall presume joint cutody is in the best 

interests of a minor child unless the 

court finds, under the factors set forth 

in 40-4-212, that joint custody is not in 

the best interests of the minor child. 

If the court declines to enter an order 

awarding joint custody, the court shall 

state in its decision the reasons for 

denial of an award of joint custody. 

Objection to joint custody by a parent 

seeking sole custody is not a sufficient 
basis for a finding that joint custody is 

not in the best interests of a child, nor 

is a finding that the parents are hostile 

to each other. 

Section 40-4-223 (3), MCA, now provides: ". . . the court 

shall state in its decision the reasons and factors 

considered in making the award." Reading these sections 

together, a district court must make findings and state 

conclusions based on those findings even where joint custody 

is awarded in accordance with the newly enacted presumption. 

Thus, the above discussion would apply under the recent 

changes as well as under the former statutory language. 

On remand, the District Court should consider and make 

findings on these useful specific factors along wit11 the 

general criteria in S 40-4-212, MCA, to determine whether 

joint custody is in B.T.S.'s best interests. 

The second issue concerns the District Court's order 

that physical custody of B.T.S. be with appellant from August 

20 to June 10 and be with respondent from June 11 to August 

19. Each parent has reasonable visitation with reasonable 

notice and alternates custody on major holidays. " [TI he 

physical custody element of a joint custody award requires 

examination of practical considerations such as the financial 

status of the parents, the proximity of their respective 

homes, the demands of parental employment, and the age a-nd 

number of children." Beck, 432 A.2d at 72. The proximity of 

the parents' residences and the apparent uncertainty of the 

father's residence are of concern here. We recognize the 

uniqueness of these particular circumstances. B.T.S. was 

born after the divorce. The father has spent the greater 

portion of B.T.S.'s life in different states. B.T.S. has 

never experienced a family unit with his natural parents and 
has not had an opportunity to develop a father-son bond with 

respondent. Finally, the father has never been a decision 

maker for B.T.S. Under these circumstances, the order should 

contain findings to support the division physical custody. 

This alone would be sufficient ground for rema.nd. Jones v. 

Jones (Mont. 1980), 620 P.2d 850, 37 St.Rep. 1973. 

In addition, the evidence at trial supports a different 

division of physical custody. At trial, Dr. Jarvis testified 

that abrupt changes in B.T.S.'s environment would cause 

anxiety and would be a difficult adjustment for him. He 

expressed the opinion that extended periods of separation 

such as overnight visits would adversely affect B.T.S. and 

that the father should re-enter gradually to establish a 

long-term, ongoing relationship. He recognized that extended 

visits were "in line with the father's needs." The mother 

expressed concern that forcing a child of this age to 

experience extended visitation without "warm-up" time to the 

father would be detrimental to B.T.S. The psychologist 

testified that this was an appropriate concern with a. child 

this age. Even the father's testimony coincided with the 

opinions of the mother and Dr. Jarvis: 

At this point, I think one week at a time 

is about all that [B.T.S.] could take 

awa.y from his parents, or away from hi.s 

home. As he grows older, I think it 

should grow up [sic] to be close to a 

five week period. Probably by the time 

that he is in school, at seven or eight. 

Neither party offered any evidence to support the extended 

visitation awarded. On remand, particularly because of the 

unique circumstances of this case, the District Court shouldenter explicit findings on physical custody. These findings 

should reflect the District Court's consideration of the 

evidence presented at trial. 
This holding is consistent with newly revised 

S 40-4-223(3), MCA, requiring a court to "state in its 

decision the reasons and factors consid-ered in making the 

award. " New revisions in S 40-4-224 (2) , MCA, also reflect 

the Legislature's concern with the division of time in an 

award of physical custody. 

For the purposes of this section, "joint 

custody" means an order awarding custody 

of the minor child to both parents and 

providing that the physical custody and 

residency of the child shall be allotted 

between the parents in such a way as to 

assure the child frequent and continuing 

contact with both parents. The allotment 

of time between parties shall be as equal 

as possible; however, each case shall be 

determined according to its own 

practicalities with the best interests of 

the child as the primary consideration. 

The statement that "each case shall be determined 

according to its own practicalities" recognizes that 

allotment of time may be skewed. The District Court should 

consider whether a division of physical custody allowing a 

gradual build-up of time for the father, consistent with the 

evidence presented at trial and consistent with the new 

revisions in the statutes on joint custody awards, would be 

appropriate if joint custody is awarded. 

The District Court awarded judgment to appellant for 

respondent's share of medical expenses incident to B.T.S.'s 

birth in the amount of $2,612. No interest was to be charged 

until repayment began at the rate of $100 per month beginning 

on January 20, 1987. The District Court acted within its 

discretion when it scheduled monthly installments. However, 

under S 27-1-211, MCA, appellant is entitled to recover 

interest from the date of judgment. Callihan v. Burlington 

Northern, Inc. (Mont. 1982), 654 P.2d 972, 39 St.Rep. 2158. 
Reversed for findings consistent with the above 

opinion. 
Mr. Justice Frank B. Morrison, Jr. dissents as follows: 

I believe the majority opinion in this case is but a 

further example of this Court's substituting its judgment for 

that of the trial court and/or the jury. The trial court is 

in the best position to observe the demeanor of the witnesses 

and thereby acquire a feel for their credibility and even 

their cha.racter, which no cold record can possibly convey. 

Only the trial judge is in a sound position to decide matters 

of custody. 

The majority opinion seeks to reverse the lower court's 

discretion by finding inadequacies in the court's findings. 

The majority's approach is unrealistic. Many trial judges in 

this state operate without the benefit of law clerks. The 

volume of their work precludes making findings on every 

conceivable statutory guideline. The majority's approach can 

most accurately be characterized as nit-picking. 

I would affirm the judgment of the District Court. 
Mr. Justice John C. Sheehy, dissenting: 

1 2issent. 

The majority opinion will further encumber the alrea6y 

beleaguered judges of the district courts in custody cases, 

an2 unnecessarily so in cases where joint custody is proper. 

The majority opinion requires findings by district 

judges of three additional criteria that are not found in the 

stztute. The majority mandate that in joint custody cases 

the Cistrict Court find (1) that the parents have the ability 

to cooperate in their parental roles, (2) that the chi12 has 

an established relationship with both parents and sees them 

as a source of love and security, and (3) that the court 

consieer the geographic proxinity of the parent" seesizences. 

Those criteria make it impossible for a father in the 

circumstance of the respondent here ever to have joint 

custody of his minor child. 

As to the first criterion, the mother does not want 

joint custody. She demonstrates no ability to c~cperztc. 

Her petition requests that she be given sole custody. Her 

wish to achieve sole custody is contra to public policy, 

dec:lared in section 40-4-222, VCA of this state that minor 

children h?.ve "frequent and continuing contact with both 

parents after the parents have separated . . . and to 

enccurage parents to share the rights and responsibilities of 

child rearing in order to effectfi the State policy. Section 

40-4-222, KCA. 

The second criterion nierdated by the majority is 

impossible for this father because the mother has made it 

nearly impossible for the father to have visitation with the 

child and the transcript in this cause is a history of the 
obstructiveness of the mother fn preventiny the iather fron 

getting to know his child. The father has been prevented by 

the mother from an established relationship with his child. 

For that reason the District Court found that "the parties 

have experienced great difficulty in arranging visitation 

between petitioner [father] and [ETS] , most difficulty 

efigendered by respondent [mother] dictating terms of 

visitation." 

The third criterion, geographic proximity should not be 

considered a deterrent to joint custody, especially as worked 

out by the court in this case. 

Under the statutes applicable, the District Court has no 

duty to make the findings for which the majority are now 

rernading this cause. Sectior, 40-4-224, MCA provides that 

when a parent requests joint custody, "the court shall 

presume joint custody ---- is in the best interests of a minor 

child unless the court finds, under the factors set forth - in 

40-4-212, that joint custody ------ is not in the best interests - of 

- the minor child. " 

Und-er section 40-4-224, KCA, the presumption of the law 

is that joint custody is in the best interests of the minor 

child. It is only when the District Court finds against 

joint custody that it must set forth the factors in section 

40-4-212, which nrilit-ate against joint custody. The majority 

opinion reverses the provisions of section 40-4-224 and 

requires the I?istrict Court to make findings explaining the 

factors in section 40-4-212, even --- when it has awarded joint 

custody. It is for that reason that I asserted above that 

the majority is encumbering the district courts with duties 

not mandated by the statute, unnecessary to the exercise of 
their jurisdiction in joint custody cases and particularly 

unwieldly in cases such as we have facing us at bar. 

The Oistrict Court ir! this case apparently di~regar~ed 

the testimony of Dr. Jarvis, the clinical psychclogist who 

testified in this case, and with good reason. Without ever 

interviewing the father, the witness purported to make 

findings with respect to the interrelationship of the chil-l! 

to the father only on t.he basis on what the mother had told 

him. Morecver, the findings of the District Court, based cn 

the record, were thzit "each recognizes the other as a good 

parent capable of providing more than adequate care and 

afSection fcr [BTS] . " The testimony of Jarvis has no 

significance in view of that finding. 

Even in its best light, the majority opinion is 

frustrating the public policy of this state. Separated or 

divorced parents of minor children are under the declared 

public policy of this state to he assured of "frequent and 

continuing contact" with the minor children. Section 

40-4-222, PCA. It is our further publ-ic policy that "the 

allot-ment of time between parties shall be as equal as 

possible; however, each case shall be determined according to 

its own practicalities with the best interests of the child 

2s a primary consideration." Section 40-4-224(2), MCF. 

Faving those public policy considerations in nir,d, the 

District Court determined that in the summertime, when the 

tather was not attending school, he should have custody 

rights to the child for three months of the year. The father 

is under our statutes ectitled to six months, if the 

practicalities of the case would work it out. The District 

Court arranged further for alternate holidays when each 

parent would enjoy the custody of the child. A more 
practical way to handle the problem of joint custody here 

cannot be ima.gined, yet the majority, in a case where this 

child is four years oil! as of Decenber 17, 1985 (the child 

having been deprive2 of his father's company by the nother 

during most of his life), remand the cause for further 

findings on vagu.e and elusive considerat.ions derived from an 

unwarranted distillation of joint custody statutes. I say i.t 

is time to give this child a chance to know his father. I 

would affirm the Cistrict Court. 

C ' L7' ,,,3/2Jt* Cy 

B ---- -- - 

Justice