No. 14316 

### INTHE 

### SUPRFME CXUHT OF 

### THE STATE OF'

### MONTANA 1978

IXlRLENE

### L. WILSm, Petitioner 

### and Appellant,

-vsWILLIAM

### A. WILSON, Respondent 

### and Respondent.

Ap-1 from: District Courtof the Fifth JudicialDistrict, Homrable 

### Frank E. Blair, Judgepresiding. Counsel of Record: For Appllant: 

### Schulz, Davis & Warren, Dillon, Mntana Thanas Dooling, Dillon, b5c)ntar-m For Respondent: W. G. Gilbert 111,Dillon, I%ntana

Suhnittedon briefs: 

### October 30, 1978 Decided: 

## FEF 37!3

-? Filed: 

## ke: 

# ?-E-Mr. Justice Gene B. Daly delivered the Opinion of the Court.

This appeal 

### isbrought by Darlene Wilson from a judgment of the 

### District Court of the Fifth Judicial District, County of Beaverhead, inwhich the court granted William Wilson, her former husband, custody of their three minor children. Mrs. Wilson (now Parks) contends the District Court erred intwo respects and 

### its custody decree should be reversed and custody granted toher. First she argues the DistrictCourt gave toomuch weight in

### its custody findings toher relationship with one ~ichard Parks during the period after her separation from her husband. Second she contends that the District Court committed reversible error by conducting a private off-record interview inchambers with her two oldest children, aged nine and ten years, for the purpose of determining with which parent they preferred to live.The issues for this Court's determination 

### are: 1. Does a District Court abuse 

### its discretion in

### a child custody casewhen 

### it considers a parent's relationship and conduct with another person indetermining the best interestsof the children? 2. It 

### is reversible error for a DistrictCourt to conduct an off-record interview with the children of a dissolved marriage todetermine with which parent they would prefer to live? Williamand Darlene Wilson 

### weremarried atBillings, Montana, in 1963. They had three children born in 1967, 1968 and 1972. Darlene Wilson presented her petition for dissolution to the DistrictCourt on September 27, 1977, alleging thather marriage with respondent was irretrievably

### broken and futher alleging that it 

### was inthe best interest of the threeminor children tobe inher custody. On October 4, 

### 1977, the District Court granted petitioner temporary custody of the children and ordered respondent topay $75 

### per childper month for the support of the parties' children. The District Court ordered the parties to attend conciliation conferences with local clergy but these conferences proved unsuccessful. On February 14, 

### 1978, the court granted

a dissolution and ordered a hearing on child custody, child support and property division. Prior to the custody hearing respondent filed a counterclaim inwhich he alleged that the best interests of theminor childrenwould be served if he

were granted custody. At

### the hearing the districtjudge, sittingwithout a jury, took testimony on the lifestyles of respondent and petitioner and concluded thatrespondent was better suited toraise the children than was petitioner. In a "Memo of the Court" dated March 24, 

### 1978, the judge summarized his view of the testimony relating toMrs. 

### Wilson's relationship with Parks and how that relationship affected her ability to properly raise her children: "We have recited the foregoing to show that the plaintiff has been trapped ina mad infatuation over a comparative male stranger, establishing intimaterelations with him, going so far as to scandalizeher children of tender years by permitting her daughter to see them inbed together, breaking up her home and the home of her children, when atthe outset of her philandering she confessed her love for the father of her children. "In short, Mrs. 

### Wilson is 

### not a fitand proper person to entrust three innocent children to her custody, care and control.

### " In contrast the judge concluded that the children's needs forproper upbringing would be met if custody were granted totheir father:

### "These children need a good moral atmosphere and surroundings tomature in. All

### of these things they 

### willhave inthe home of their father 

# . . ." In 

### its findings and conclusions dated March 24, 

### 1978, the District Court stated that the childrenwere disturbed by their mother's relationship with Parks and that their best interestswould be served by granting custody to their father. The court also noted the results of its in-chambers interview with the two oldest children, that they preferred to livewith their 

### father. On appeal petitioner contends the court abused 

### itsdiscretionby placing emphasis on themoral atmosphere inher home, especially thematter of her relationship with Parks. She argues that the court's finding that she is 

### not a "fit" parent is 

### not supported by competent evidence, but rather only by an "indiscretion" on her partwhich "in a strictly religious sense constitutes a sin

# .. . " Petitioner cites Love v. Love (1975), 166

### Mont. 303, 533 P.2d 280, to support her argument that themother should be given some degree of preference and the need to show not only that themother is 

### unfit but also that the father is 

### fitto care for the children. This contention, however, must be viewed in the light of two principles which this Court has firmly established. First, 

### this Court does not substitute its

### judgment for that of the District Court. The paramount consideration in a child custody case is 

### the welfare of the children. The District Court has a much better opportunity than this 

### Court tomake the determination of how the children's welfare will 

### be best served and thus the custody decision is 

### leftlargely to that court's discretion. Unless the District Court has clearly abused its

### discretion, its 

### custody decision 

### willnot be overruled. In reMarriage of Brown (1978)

## , Mont.

## , 587 ~,2d 361, 364, 35 St.Rep. 1733, 1738. Second, the presumption infavor of granting custody to themother 

### is

never conclusive. Instead "each child custody case 

### willbe decided on 

### its own factsrather than by the use of 'controllingor conclusive presumption.'" In

### re Marriage of Tweeten (1977) I Mont. 

## , 563 P.2d 

### 1141, 

### 1144, 34 St.Rep. 337, 341. The maternal preference presumption 

### still exists, but 

### its use is limited to those cases inwhich the father has not overcome 

### itby a preponderance of evidence showing him tobe themore fitparent tohave custody. In

### re Marriage of Isler (1977), -Mont. 

## , 566 P.2d 55, 58, 34 St.Rep. 545, 548. To overcome the presumption the father need not show that themother 

### is unfit but only that the childrenwould be better off with him. In 

### re Marriage of Brown

## , Mont. at 

## , 587 P.2d at366, 35 St.Rep. at 1739; In

### re Marriage of 

### Isler, Mont. 

### at 

## , 566 P.2d at58, 34 St.Rep. 

### at 548. To the extent that Love holds otherwise, 

### it 

### is no longer followed. In this case the record shows sufficient evidence to support the DistrictCourt's finding that theWilson children would be better 

### off with their father. Section 48-332, R.C.M. 1947, now section 40-4-212 MCA, 

### sets forth five criteriaupon which the DistrictCourt 

### isdirected tomake the determination of what custodial arrangement 

### willbe in the best interest of the children. These 

### are: the wishes of the parents as tocustody; thewishes of the children; the children's interaction and interrelationship with their parents, with each other, and with otherswho may significantly affect their best interests; the children's adjustment tohome, school and community; and, the mental and physical health of allindividuals involved. From the

### evidencepresented, 

### it is clear thatboth parents wish to have custody of the three children. The two older children told the districtjudge that they would prefer to livewith their father. There was testimony from the father that the children

### werenot willing toreturn to their mother's 

### trailer after weekend visits with him. The court alsoheard testimony concerning the home life towhich the children 

### were exposed during Darlene Wilson's temporary custody. The parties argue about the effects on the children of Darlene's permitting Richard Parks to spend nights with her before they 

### weremarried. The District 

### Court attached some significance to thisrelationship 

### as an indication of Darlene's fitness as a parent. But the evidence does not stopwith this relationship. The court took testimony on William

### Wilson's abilities to

### care for the children and his propensities toprovide them with a proper upbringing. William

### showed evidence of steady monthly income and adequate housing. He 

### testified that his job would not prevent him from keeping his youngest son with him during the day and that there 

### were often other children around 

### atthe farms where he delivers feed and fertilizer. He

### also testified thathe had experience inpreparing meals for the children and getting them off to school before the separationwhen hiswife had to leave early inthe morning forwork. Finally, the court heard testimony of his regular church attendance and hiswillingness to 

### assist the children intheir moral and spiritualdevelopment. The children will have to spend some timeinday care at

### the end of each school day if their father has custody, which, from the record, would apparently not be necessary if they stayed with their mother. Inbalance, the court concluded that thefather 

### is better suited toprovide for the best interests of the children. while a relationship such as Darlene Wilson had with ~ichard Parks may not initself be adequate to support a finding of her unfitness as a parent, especially in a change of custody proceeding, Foss v. Leifer (1976), 170 Mont. 97, 550 P.2d 1309, the District Court should not be directed to ignore a parent's activities in the home. In any event, the scope of thisreview remains limited and the issue 

### is not whether the evidence shows themother tobe unfit but only whether the evidence supports a conclusion that the children's welfare would be best served by granting custody to the father. In this case 

### it does. There 

### is no showing by petitioner that the District Court manifestly abused 

### its discretion by granting custody to the father, although 

### it may not have been necessary to characterize Darlene Wilson

as an unfit parent. Petitioner's second issuedeals with the off-record interview which thejudge held with the two oldestWilson children. Atthe request of William Wilson during the custody hearing, the districtjudge interviewed the children in chambers. They were accompanied by Terri Stanisich, a guidance counselor attheir school. No record was made, and neither parent was represented atthismeeting. Ata separate hearing before a different districtjudge, 

### ~erri Stanisich testified that she brought the children into the chambers where the judge conducted the interview. She said that the judge firstasked a general question about school and teachers, then asked the children which parent they preferred to livewith."So then he asked them which parent, I don't remember just how he worded 

### it, but which parent they would prefer tolivewith, and they answered, their father. Both of them, and they both were nodding their head when they said it." Following the interview, the ~istrict Court entered a finding that the children preferred to livewith their father. Section 48-334 

### (1) 

## , R.C.M. 1947, now section 40-4-214 

### (1) MCA, provides that the court "may interview the child in chambers toascertain the child's wishes as tohis custodian and as tovisitation". It leaves the court discretion to permit counsel tobe present. However, 

### it alsomandates thatwhen a court does interview children inchambers, 

### it "shall cause a record of the interview tobe made and tobe part of the record inthe case." Whether the failure to make a record in this case requires a remand 

### is the question presented here. The lack of both a record of the interview and a specific finding as to the children's preference 

### - necessitated a remand inIn 

### re Marriage of Brown, -Mont

# . at 

## , 587 P.2d at366, 35 St.Rep. at 1739. See also, In

reMarriage of Kramer (1978), Mont. 

## , 580 P.2d 439, 444, 35 St.Rep. 700, 706. The rationale of the Court in Brown was thatwithout these things, 

### it was impossible to determine the basis for the District Court's custody ruling: "Without the record of the interview and without specific findings as to the wishes of the children, counsel and thisCourt do not know with any degree of certainty the basis for the District Court's conclusion on custody

# . " 

### -Mont. at 

## , 587 P.2d at 366, 35 St.Rep. at 1739. While the practice of conducting off-record interviews 

### is not desirable for the reason given inBrown, the lack of a record alone has not always required reversal. The parties
to the custody proceeding may even stipulate that no record

### willbe made and provided thewishes of the children 

### as to custody arefollowed, 

### a remand may not be necessary. Counts

v. Chapman (1979), Mont. -1 

### -P.2d 

## , 36 St.Rep. 89, 93-94. In the present case, the District Court didmake

a finding as tothe children's wishes and entered 

### its decree according to those wishes. The separate hearing inwhich Terri 

### Stanisich testified provides a view of what happened during the interview, which supports the District Court's findings. Thus, the particular problems with the lack of finding and record which required 

### a remand inBrown arenot present here and i.t appears that a remand for the purpose of

an "on-record" interview would serve 

### littlepurpose. Under the circumstances of this case, no remand 

### is necessary. The decree of the District Court granting custody to William

### Wilson 

### is affirmed.



# / Justice

We 

### concur: 

# &a42 Chief justice