No. 84-184 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

IN RE THE CUSTODY OF 

bWYCELLE D. 

APPEAL FROM: District Court of the Second Judicial District, 

In and for the County of Silver Bow, 

The Honorable Mark Sullivan, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

James Dorr Johnson, Butte, Montana 

For Respondent: 

Daniel Sweeney, Butte, Montana 

Submitted on Briefs: July 10, 1984 

Decided: November 1, 1984 

Filed: ~VUV -- e w 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

The mother of Maycelle D. appeals from an order of the 

District Court, Second Judicial District, Silverbow County, 

modifying a dissolution of marriage decree to grant specific 

visitation rights to the father. We reverse in part and 

remand with instructions. 

We consider two issues on this appeal: 

(1) The District Court interviewed the minor in 

chambers, and made a record of the interview. On its own 

motion, without a hearing, under section 40-4-216(4), MCA, 

the District Court ordered the interview record sealed to 

protect the minor. The mother contends this is reversible 

error. 

(2) The District Court modified the dissolution of 

marriage decree to provide the father specific visitation 

rights for which the mother contends there is not substantial 

evidence in support thereof. 

The minor is a 12-year-old girl living with her mother. 

The mother and father were married on July 5, 1971, and 

divorced in 1973 when the minor was nine months old. Under 

the divorce decree the mother was given custody of the minor 

child, and the father was granted the right to visit the 

minor child at reasonable times and places, "provided that he 

complies with the terms of the decree." The father was 

ordered to pay the sum of $70 per month as child support to 

the mother. 

We take judicial notice of cause no. 83-378 in our 

Court, entitled State of Montana, Department of F.e~renue v. 

Charles Dawson (Mont. 1984), 674 P.2d 1091, 41 St.Rep. 46. 
The defendant in that case is the father of this minor child. 

On April 4, 1979, the District Court made findings to the 

effect that the father was in arrears in the support of the 

minor child in the sum of $6,689. Ilowever, the District 

Court determined that the defendant was then unable to make 

support payments and suspended his responsibility for making 

any further support payments to the mother. When the case 

came before us on appeal, we held that the court could not 

make a retroactive modification of the chil-d support payments 

and determined that the Department of Revenue was entitled to 

recover from the father the arrears in the sum of $6,689. 

The District Court file reflects that on January 13, 

1984, the Department of Revenue obtained two writs of 

execution respecting the unpaid support payments. On the 

same date, the father filed a motion for contempt against the 

mother on the ground he had been denied visitation and 

telephone calls with the minor c11il.d. The cause was heard 

before the District Court on February 23, but no record of 

the hearing was made, although both father and mother 

appeared and were represented by counsel. On February 24, 

1984, the District Court entered an order amendjng the 

dissolution of marriage decree to provide that the father 

should have visitation rights on an alternating basis on 

legal holidays and the child's birthday and on alternate 

Saturdays, from 9:00 a.m. to 9:00 p.m. on Sunday. The Court 

entered findings of fact, conclusions of law, and judgment 

on March 22, 1984 and this appeal ensued. 

At the hearing for contempt, the District Court 

interviewed the minor child to determine her wishes with 

respect to visitation. On April 2, 1984, the District Court 

entered an order sealing the record of the interview of the 
minor child upon the ground that the court found it necessary 

that the record of the interview be kept secret to protect 

the child' s welfare pursuant to section 40-4-216 (4) , MCA. 

No counsel was appointed to represent the child in the 

proceedings. Counsel for the mother purports to represent 

the child on appeal, but we reqard his representation in the 

cause as confined to that of the mother. 

The mother is proceeding on appeal - in forma pauperis. 

Her affidavit of indigency indicates that she receives board 

and room from an employer, $79-$90 per month for daycare of 

other children, and ADC payments for Maycelle in the sum of 

$102 per month. 

Unfortunately, we do not have a proper record on appeal. 

Each party attempted to comply with Rule 9(d), 

M.R.App.Ci.v.P., by submitting a statement of the evidence. 

There are marked differences in their statements of the 

evidence before the District Court. However, the District 

Court has not approved either statement as required by Rule 

9(d), supra, and the same has not been certified to us as the 

record on appeal. Because we have no record of the hea-ring 

testimony and exhibits relating to the visitation of 

Maycelle, we are unable to determine whether extending 

explicit visitation rights to the father was appropriate in 

this case. 

There is, however, sufficient record before us on which 

we can make a determination as to sealing the interview of 

the minor child by the District Court. From the order of 

April 2, 1984, and from the findings of fact and conclusions 

of law entered by the District Court in the cause, we 

determine that the basis for sealing the record of the 
interview with the minor child is not sufficiently 

demonstrated, and reversal on that point is required. 

Our cases are explicit with regard to custody. We are 

committed to the view that the welfare of the child is the 

paramount consideration in awarding custody. We have held 

that the welfare of children, particularly of the age 

invol-ved. here, is not being served if their wishes are not 

considered by the trial court. We have therefore required in 

custody cases that the court make a specific finding stating 

the wishes of the children as to their custodian, and if the 

court determines that the chil-dren's wishes are not to be 

followed, the court should state in its findings the reason 

it has chosen not to follow their wishes. In Re Marriage of 

Raasa (1.979), 181 Mont. 18, 25, 591 P.2d 1110, 1114; In Re 

Farriage of Kramer (1978), 177 Mont. 61, 69, 580 P.2d 439, 

444. 

We ha.ve also held that the well-rounded development of a 

normal child demands association with both natural parents, 

and the noncustodial parent is entitled to a fair opportunity 

to share in the child's love and affection when this can be 

done without detriment to the child. In Re the ~arriage of 

Firman (1980), 187 Mont. 465, 469, 610 P.2d 178, 180. 

By sealing the record of the interview with the minor 

child, the District Court has made it impossible for the 

mother to make the interview a part of the record on appeal 

and to contest the District Court's decision not to follow 

the wishes of the minor child, if the child does not wish 

visitation with the father. 

We hold that the rules which we have stated with respect 

to the child's wishes as to custody likewise app1.y with 

respect to visitation, and that when the welfare of a child 
of the age involved here is in question with respect to 

visitation by the noncustodian, and the court interviews the 

minor child as to his wishes respecting visitation, the 

District Court should make a specific finding, stating the 

wishes of the child as to visitation with the noncustodian. 

If the court determines that the child's wishes are not to be 

followed, the court should state in its findings the reasons 

it has chosen not to follow such wishes. 

In this cause there is no reflection in the findings of 

fact of the District Court as to the child's wishes, or *.he 

reasons for not following the same if the child does not wish 

visitation with the father. 

Section 40-4-214, MCA, provides that the court may 

interview the child in chambers to ascertain the child's 

wishes as to its custodian "and as to vi.sitation.ll The 

statute further requires that the court cause a record of the 

interview to be made and to be a part of the record in the 

cause. 

Section 40-4-216(4), MCA, provides that if a court finds 

it necessary that the record of the interview be kept secret 

to protect the child's welfare, the court may make an 

appropriate order sealing the record. 

In this case, the record of the interview was sealed 

without a hearing and without explanation except the court's 

statement in its order that its purpose was to protect the 

child's welfare. It is difficult for us to comprehend how 

the child's welfare will be endangered unless the record of 

the interview is sealed from the child's mother (who has 

full-y cared for the child to date), From her counsel, and 

indeed from this Court. This is not to say a valid reason 

does not indeed exist, in which case, for purposes of appeal, 
we would suggest there be submitted to us the record of the 

interview - in camera for our examination. 

We remand the cause to the District Court with these 

iizstructi.ons: the mother shall be given opportunity for a 

hearing on whether the record of the interview should 

continue to be sealed for all purposes or whether some 

modificat.ion of the order for sealing may be made for the 

purpose of her appeal; if, in the judgment of the District 

Court, no revelation of the interview should be made to the 

pa.rties, the record of the interview may be submitted t.o this 

Court - in camera in any future appellate proceedings. We also 

remand for a certification by the District Court under Rule 

9(d), M.R.App.Civ.P., of a record on appeal for any future 

appellate proceedings. In the meantime, the order of the 

District Court granting explicit visitation to the father 

shall be and remain in effect. 

We Concur: 

3~&dtwd* Chief Justice