No. 14316 

IN THE SUPRFME CXUHT OF THE STATE OF' MONTANA 

1978 

IXlRLENE L. WILSm, 

Petitioner and Appellant, 

-vsWILLIAM A. WILSON, 

Respondent and Respondent. 

Ap-1 from: District Court of the Fifth Judicial District, 

Homrable Frank E. Blair, Judge presiding. 

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 

Suhnitted on briefs: October 30, 1978 

Decided: FEF 37!3 -? 

Filed : ke: ?-E- 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

This appeal is brought by Darlene Wilson from a judgment of the District Court of the Fifth Judicial District, 

County of Beaverhead, in which the court granted William 

Wilson, her former husband, custody of their three minor 

children. Mrs. Wilson (now Parks) contends the District 

Court erred in two respects and its custody decree should be 

reversed and custody granted to her. First she argues the 

District Court gave too much weight in its custody findings 

to her 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 in chambers 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 case when it considers a parent's relationship 

and conduct with another person in determining the best 

interests of the children? 

2. It is reversible error for a District Court to 

conduct an off-record interview with the children of a 

dissolved marriage to determine with which parent they would 

prefer to live? 

William and Darlene Wilson were married at Billings, 

Montana, in 1963. They had three children born in 1967, 

1968 and 1972. Darlene Wilson presented her petition for 

dissolution to the District Court on September 27, 1977, 

alleging that her marriage with respondent was irretrievably 
broken and futher alleging that it was in the best interest 

of the three minor children to be in her custody. On October 4, 1977, the District Court granted petitioner temporary 

custody of the children and ordered respondent to pay $75 

per child per 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 in which he alleged that the 

best interests of the minor children would be served if he 

were granted custody. 

At the hearing the district judge, sitting without a 

jury, took testimony on the life styles of respondent and 

petitioner and concluded that respondent was better suited 

to raise the children than was petitioner. In a "Memo of 

the Court" dated March 24, 1978, the judge summarized his 

view of the testimony relating to Mrs. 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 in a mad infatuation 

over a comparative male stranger, establishing 

intimate relations with him, going so far as to 

scandalize her children of tender years by permitting her daughter to see them in bed together, 

breaking up her home and the home of her children, 

when at the outset of her philandering she confessed her love for the father of her children. 

"In short, Mrs. Wilson is not a fit and proper 

person to entrust three innocent children to her 

custody, care and control. " 

In contrast the judge concluded that the children's needs 

for proper upbringing would be met if custody were granted 

to their father: 
"These children need a good moral atmosphere and 

surroundings to mature in. All of these things 

they will have in the home of their father . . ." 

In its findings and conclusions dated March 24, 1978, 

the District Court stated that the children were disturbed 

by their mother's relationship with Parks and that their 

best interests would 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 live with their father. 

On appeal petitioner contends the court abused its discretion by placing emphasis on the moral atmosphere in her 

home, especially the matter 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 part which "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 the mother should be given some degree of 

preference and the need to show not only that the mother is 

unfit but also that the father is fit to 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 

to make the determination of how the children's welfare will 

be best served and thus the custody decision is left largely 

to that court's discretion. Unless the District Court has 

clearly abused its discretion, its custody decision will not 

be overruled. In re Marriage of Brown (1978) , Mont. 
, 587 ~,2d 361, 364, 35 St.Rep. 1733, 1738. Second, the 

presumption in favor of granting custody to the mother is 

never conclusive. Instead "each child custody case will be 

decided on its own facts rather than by the use of 'controlling or 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 in which the father 

has not overcome it by a preponderance of evidence showing 

him to be the more fit parent to have 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 the mother is unfit but only that the 

children would be better off with him. In re Marriage of 

Brown , Mont. at , 587 P.2d at 366, 35 St.Rep. at 

1739; In re Marriage of Isler, Mont. at , 566 P.2d 

at 58, 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 District Court's finding that the Wilson children would be better off with their father. Section 48-332, 

R.C.M. 1947, now section 40-4-212 MCA, sets forth five 

criteria upon which the District Court is directed to make 

the determination of what custodial arrangement will be in 

the best interest of the children. These are: the wishes of 

the parents as to custody; the wishes of the children; the 

children's interaction and interrelationship with their 

parents, with each other, and with others who may significantly affect their best interests; the children's adjustment to home, school and community; and, the mental and 

physical health of all individuals involved. From the 
evidence presented, it is clear that both parents wish to 

have custody of the three children. The two older children 

told the district judge that they would prefer to live with 

their father. There was testimony from the father that the 

children were not willing to return to their mother's 

trailer after weekend visits with him. 

The court also heard testimony concerning the home life 

to which 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 were married. The District 

Court attached some significance to this relationship as an 

indication of Darlene's fitness as a parent. But the evidence does not stop with this relationship. The court took 

testimony on William Wilson's abilities to care for the 

children and his propensities to provide 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 at the farms where he delivers feed and fertilizer. 

He also testified that he had experience in preparing meals 

for the children and getting them off to school before the 

separation when his wife had to leave early in the morning 

for work. Finally, the court heard testimony of his regular 

church attendance and his willingness to assist the children 

in their moral and spiritual development. The children will 

have to spend some time in day 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. In balance, the court concluded that the 
father is better suited to provide for the best interests of 

the children. 

while a relationship such as Darlene Wilson had with 

~ichard Parks may not in itself 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 this review remains limited and the issue is not 

whether the evidence shows the mother to be 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 issue deals with the off-record 

interview which the judge held with the two oldest Wilson 

children. At the request of William Wilson during the 

custody hearing, the district judge interviewed the children 

in chambers. They were accompanied by Terri Stanisich, a 

guidance counselor at their school. No record was made, and 

neither parent was represented at this meeting. At a 

separate hearing before a different district judge, ~erri 

Stanisich testified that she brought the children into the 

chambers where the judge conducted the interview. She said 

that the judge first asked a general question about school 

and teachers, then asked the children which parent they 

preferred to live with. 
"So then he asked them which parent, I don't 

remember just how he worded it, but which parent 

they would prefer to live with, 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 live with 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 to ascertain the child's wishes as to his custodian 

and as to visitation". It leaves the court discretion to 

permit counsel to be present. However, it also mandates 

that when a court does interview children in chambers, it 

"shall cause a record of the interview to be made and to be 

part of the record in the 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 in In re Marriage of Brown, - Mont . 

at , 587 P.2d at 366, 35 St.Rep. at 1739. See also, In 

re Marriage of Kramer (1978), Mont. , 580 P.2d 439, 

444, 35 St.Rep. 700, 706. The rationale of the Court in 

Brown was that without 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 this Court 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 in Brown, the lack of a 

record alone has not always required reversal. The parties 

to the custody proceeding may even stipulate that no record 
will be made and provided the wishes of the children as to 

custody are followed, 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 did make 

a finding as to the children's wishes and entered its decree 

according to those wishes. The separate hearing in which 

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 in Brown are not 

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

an "on-record" interview would serve little purpose. 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