No. 13670 INTHE SUPREME COURT OF THE STATE OF MONTANA 1977

Re 

### INITHE MARRIAGE OF KANDIS TWEETEN, Petitioner and Appellant,

HENRY TWEETEN, Respondent and Respondent.

Appeal from: District Court of the Twelfth Judicial District, Honorable B. W. Thomas, Judge presiding. Counsel of Record: For Appellant: Smith, Emmons, Baillie and Walsh, Great Falls, Montana Robert J. Emrnons argued, Great Falls, Montana For Respondent: Hauge, Ober, Spangelo and Thompson, Havre, Montana Morton B. Goldstein argued, Havre, Montana

Submitted: M$&k 2, 1977Mr. Justice John Conway Harrison delivered the Opinion of the Court.
Petitioner Kandis Tweetenbrought an action in the district court,Hill County, seeking (1) the dissolution of her marriage to Henry Tweeten, 

### (2) a property settlement, and 

### (3) custody of the parties' 3year old child,Kevin. In its order of December 7, 1976, the district court dissolved the marriage, ordered a property settlement and found that both parties were fit and proper persons to have custody of Kevin. The court awarded custody of the child to Henry: "Because of the close andwarm relationship of Kevin with his father and the greater maturity and stability which the father possesses and can offer as a parent, the Court finds that it is in the best interest of Kevin that he be placed in the general care, custody and control of his father

# * * *.I1 Kandis appeals from the decree only insofar as it awards custody of Kevin to Henry. Kandis and Henry Tweetenwere married inHavre,Montana, August 19, 1972. Kevinwas born October 

### 25, 1973 and is the sole issue of the marriage. Kandis and Henry separated the firstweek of June 1976,and from that date until trial onNovember 18, Kevin residedwith his mother. During this period however, Kevin spent at least two days per week in the company of his father. Eighteen witnesses were called at the two day nonjury trial. Testimonywas heard froma welfare worker employedby the Hill CountyWelfare Departmentwho conducted a child custody investigation. The result of this investigationwas a recommendation that the father be awarded custody of Kevin. Testimonywas alsoheard fromDr. Betsy Rushworth,a clinicalphychologist. Dr. Rushworth conducted a mental health evaluation of Kevin and his parents. The result of this evaluation was inconclusive indicating that Henry and Kevinhad a warm and loving relationship,but Henry tended to be overpermissive with Kevin. On the other hand, the evaluation indicated that Kandis exhibited some deficiencies inher dealings with Kevin,but was making a concerted effort to improve. The testimony of Kandis and Henry alongwith members of their immediate families and close friends

was consideredby the district court in its decision. On December 8, the district court granted a stay of execution as to custody extending the temporary custody of Kevin in his mother, with visitation rights to Henry pending this appeal. The sole issue upon appeal is whether the district court erred in awarding the custody of Kevin to Henry rather thanhis mother,Kandis. This Court has long followed the rule that unless there is

a clear abuse of discretionby the trial court,a decision on custody will not be overruled on appeal. Love v. Love, 166Mont. 303, 533 P.2d 280;Gilmore v. Gilmore, 166Mont. 47, 530 P.2d 

### 480;Andersonv. Anderson, 145Mont. 244, 

### 400 P.2d 632. This Court is committed to the view that thewelfare of the child is the paramount consideration in awarding custody and that it must of necessitybe left largely to the discretion of the trial judge. He hears the testimony, sees the witnesses demeanor, and thus has a superior advantage in determining the difficult problems. Brooks v. Brooks, Mont

# . , 556 P.2d 901, 33 St.Rep. 1114. Unless there is a clear preponderance of the evidence against the trial court's decision it will not be disturbed. Gilmore v. Gilmore, supra.The relevant statutory guidelines dealing with child custody matters appear in section48-332,R.C.M. 1947,of the recently adopted UniformMarriage and DivorceAct. This section states: "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 childwith his parent or parents, his siblings,and any other personwho may significantlyaffect the child's best interest; 

### "(4) the child's adjustment to his home, school,and community; and "(5) the mental and physicalhealth of all individuals involved.I1 Kandis asserts the district court erred in awarding the custody of Kevin to Henry. After careful consideration of the factors listed in section48-332,the district court found and

we agree, that the evidence indicated the awarding of Kevin's custody to his fatherwas in the child's best interest. This Court feels the first two of the stated factors are not of controlling importance in this custodydecision. Both parents testified as to their desire to have custody of Kevin. It is obvious where both parents desire custody of the child this factor loses its relevance as the desires of the parents

are balanced against each other, In this regard it is important to remember the best interest of the parent, or detriment to the parent, is not the test. Veazey v. Veazey,Alaska 1977, 560 

### P. 2d 382. Too,Kevinwas approximately 3 years, 

### 1month old at the time of the trial. See: Hild v. Hild, 221Md. 349, 157A.2d 442. We findno error in the district court's failure.tointerview Kevin as to his preference. -4-As tothe third factor, interaction of the child tohis parents, the evidence is clear Kevin has a farbetter relationship with his father than his mother. Henry and Kevin have an excellent relationship as testified toby thewelfare worker who recommended that custody be awarded toHenry, and Dr. Rushworth, the examining clinicalpsychologist. This Court and other courts have previously held that independent evaluations by social orwelfare departments are important factors tobe considered inchild custody decisions. Simon v. Simon, 154Mont. 193, 461 P.2d 851. Furthermore, there was considerable testimony from the parties' families and friends as toHenry's love and affection, and concern for his son Kevin. An analysis of the fourth factor, adjustment tohome, school, and community, again reinforces the district court's decision. The record is clear that Henry has been the dominant force inproviding for the education and religious training of Kevin. Henry spends a great deal of time out in the community with Kevin and the record reflects that these effortshave resulted inKevin making a good adjustment tohis community and environment in spiteof the unsettled stateof his short life. We take this opportunity to clarify one point in this Court's recent decision inGilbert v. Gilbert, 166 Mont. 312, 316, 533 P.2d 1079. InGilbert, the father petitoned the district court for a change of custody from the mother. The trial caurt denied the father's petitionbecause he found no material change of circumstances warranting a modification of the decree. The record before this Court showed that afterone year under the original custody agreement the childbecame emotionally ill.Bothparties recognized that fact and because the father lived in a university townwhere consultationwith professional help

was available and where the child could attend a child development center,he took custody of the child. Some months later the mother tried to get her child back and the father refused. Inview of the facts, this Court found that there had been a change of circumstancesand it was in the child's best interest to remain with the father,the Court noted: "Physical custody of this child in its present environment is a fact and hasbeen for a long period of time,when viewed in the light of the formative years of a four year old child at the time she came into the present environment after an unsuccessful one year from age three to four years in the first agreed custody arrangement.I I While the time period a child spendswith a parent pending an appeal of a custody case is a factor to be considered by a trial court, it should not be so controlling as to negate a parent's right of appeal. Here, the record reveals Kevin becomes withdrawnwhen in the company of hismother, but on the other hand is happy and outgoingwith his father. While there is no indication of mental

or physical illness on Kevin's part, the court found the best interests of Kevin dictate that Henry be awarded custody. Kandis argues that, even though section 91-4515,R.C.M. 1947, was superseded by the UniformMarriage and Divorce Act and the statutory "tender yearst1 presumption found thereinno longer exists, the universal rule is that this presumption is still conclusive in custodymatters. Kandiswould have us believe the district court erred in not indulging the presumption that

a mother is better fit to have custody of a child of tender years. We agree such a presumption exists,but do not find it to

### be conclusive. In this jurisdiction each child custody case will be decided on its own 

### facts rather thanby the use of "controlling or conclusive" presumption. This rule iswell established in other jurisdictionswhichhave adopted the Uniform Marriage and DivorceAct. See: Johnsonv. Johnson, Mo.App. 1975, 526 S.W.2d 33;Re-G.-T. 

### v. Y.-G.-T., 

### Mo.App.1976, 543 S.W.2d 330;Evistonv. Eviston,Ky.App. 1974, 507 S.W.2d 153. We affirm the district court decree in its entirety.

We Concur:

Chief Justice