No. 81-157 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

IN RE THE MARRIAGE OF 

PATRICIA LOUISE MALCOLM, 

Petitioner and Respondent, 

-vsCORNEL HOWARD MALCOLM, 

Respondent and Appellant. 

Appeal from: District Court of the Eighth Judicial District, 

In and for the County of Cascade, The Honorable 

Joel G. Roth, Judge presiding. 

Counsel of Record: 

For Appellant: 

Stephen E. Hagerman, Great Falls, Montana 

For Respondent: 

Larsen & Neill, Great Falls, Montana 

t' .. 

Submitted on Briefs: November 12, 1981 

Decided : EB 4 1982 

FEB 4 - 1362 

Filed: 
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of 

the Court. 

On July 2, 1980, Patricia Malcolm (mother) petitioned 

the Eighth ~udicial District for dissolution of her marriage 

to Cornel Malcolm (father). A temporary order was issued by 

that court on September 4, 1980, granting, among other 

things, temporary custody of the couple's three children to 

their mother. A decree dissolving the marriage was granted 

on January 27, 1981. Following further investigation, an 

order was issued on February 9, 1981, whereby the mother was 

granted permanent custody of the children and the father was 

ordered to pay one hundred dollars per child per month as 

child support. 

The father appeals this custody order and claims that 

the District Court abused its discretion by granting custody 

of the children to their mother. He asserts that permanent 

custody of the children should not have been granted the 

mother for the following reasons: 

(1) She has lived with another man while still married 

to her husband. 

(2) She has "abused and neglected" the children by 

locking them in a car with a loaded gun. 

(3) She has been in trouble with the police. 

(4) She has left the children unattended on several 

occasions. 

Therefore, asserts the father, it is not in the best interests 

of the children to grant permanent custody to their mother. 

He requests we reverse the District Court's order and grant 

him custody of the children. 

This Court has long followed the rule that unless there 

is a clear abuse of discretion by the ~istrict Court, the 
~istrict Court's custody decision will not be overturned on 

appeal. he trial judge is in a better position to determine 

child custody as he has heard the testimony and observed the 

demeanor of the witnesses. Allen v. Allen (1978), 175 Mont. 

527, 575 P.2d 74; In re Marriage of Tweeten (1977), 172 

Mont. 404, 563 P.2d 1141; In re the Marriage of Isler (1977), 

173 Mont. 29, 566 P.2d 55. 

We find no clear abuse of discretion by the District 

Court in this instance. Therefore, we affirm the District 

Court's order. 

The mother testified that she and her children lived 

with another man before she obtained a dissolution of her 

marriage. She also testified that the children were locked 

in her car with a loaded gun incident to her attempt to 

regain custody of the children from their father. The gun 

was initially pointed by the mother at the father and another 

man, after which it was placed in the mother's purse and 

locked by her in the car. The mother had also locked her 

children in the car to keep them from their father. 

Although the court condoned neither of these actions on 

the part of the mother, it held that these instances did not 

necessarily prove that she was "totally unfit and incapable 

of being awarded custody of the children." We agree. 

Evidence was presented which established that the 

father had assaulted the mother on several occasions. She 

was afraid of him. This evidence, coupled with the unusually 

emotional circumstances surrounding the use of the gun, 

leads us to the conclusion that there was no clear abuse of 

discretion by the trial court regarding this determination. 

The contacts the mother has had with the police stem 

from the above described gun incident and a trespass. The 
District Court did not abuse its discretion by failing to 

deny custody of the children to their mother as a result of 

the police contact. 

Finally, evidence was presented at trial confirming 

that the one time the children were left alone at night, a 

neighbor periodically checked on them. We do not condone 

leaving young children alone at night without a babysitter 

present in the home. However, in light of the total evidence 

presented at trial, we do not find that the District Court 

abused its discretion on the basis of that single incident. 

The best interest of the child is the primary factor to 

be considered when determining custody of the child. Section 

40-4-212, MCA, states: 

"40-4-212. Best interest of child. The court 

shall determine custody in accordance with the 

best interest of the child. The court shall 

consider all relevant factors including: 

"(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." 

Factor number one is irrelevant in this dispute as both 

parents wish to have custody of their children. In addition, 

the trial court found both parents to be in good health and 

none of the children to have current relevant physical or 

mental health problems. Therefore, factor number five is 

also irrelevant to this dispute. 

Evidence received at trial supports the District Court's 
custody determination when it is applied to factors two, 

three and four. When interviewed by Family Court Services, 

both six year old Shawndel Malcolm and eight year old Ray 

Shawn Malcolm expressed the desire to reside with their 

mother. Although both children stated they loved their 

father and would like to see him often, they both expressed 

a fear of him. Three year old Sheronda Malcolm is too young 

to express a preference. 

Reports from school teachers indicated that the children 

are well adjusted to their present school situations. 

Neighbors of the Malcolms testified that the Malcolm children 

are well behaved and are very suitable playmates for their 

own children. The children seem to be well adjusted to 

their current home, school and community. 

Other testimony of neighbors and friends of the Malcolms, 

as well as Sheronda's day care teacher, attested to the fine 

interaction and interrelationship between Patricia Malcolm 

and her children. She was willing to change jobs when the 

new work hours at her former job interfered with the time 

she had to spend with her children. The children were 

reported to be clean, neat and happy. Evidence was received 

indicating that the mother participated with her children in 

numerous activities such as skating, swimming and trips to 

the park. 

Evidence was also received concerning the relationship 

of Cornel Malcolm with his children. Although he apparently 

did not spend as much time interreacting with his children 

as did their mother, the times together were enjoyable to 

all parties. He was found by the District Court to be a fit 

and loving father. However, the finding that a parent is 

both fit and capable does not necessarily mean it would be 
in the best interests of the child to be put in that parent's 

custody. -- In re Marriage - of Isler, supra; In the Matter of 

the Adoption of Redcrow (1977), 172 Mont. 366, 563 P.2d 

1121. 

Other factors supported by the evidence and considered 

by the District Court pursuant to section 40-4-212, MCA, 

support the court's determination that the best interests of 

the children would be served by granting permanent custody 

of them to their mother. They are: 

"1) The father failed to pay support for the 

children as temporarily ordered by the court. 

"2) The father had to be ordered by the court 

to deliver the children's clothing, furniture 

and household cooking utensils to the mother. 

"3) The father seldom visited the children 

following the separation of the husband and 

wife. 

"4) The father refused to permit the mother 

to have a military identification card so 

that she could shop at the base commissary 

and base exchange for food and clothing for 

the children." 

Although these acts were apparently intended to irritate 

and inconvenience the mother, they also adversely affected 

the children. They were properly considered by the trial 

court and support the determination made. 

The District Court found that "the preponderance of the 

evidence established that the petitioner is a good mother to 

the children, adequately cares for them, loves them, wants 

to be the custodian of the children, and is able to provide 

for their needs and to provide a home for them.'Ve find 

ample evidence to support this finding and therefore affirm 

the permanent custody order of t istrict Court. F 
We Concur: