No. 13670 

IN THE 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, 1977 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

Petitioner Kandis Tweeten brought 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' 3 year 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 and warm 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 Tweeten were married in Havre, Montana, 

August 19, 1972. Kevin was born October 25, 1973 and is the sole 

issue of the marriage. Kandis and Henry separated the first week 

of June 1976, and from that date until trial on November 18, 

Kevin resided with 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. 

Testimony was heard from a welfare worker employed by the Hill 

County Welfare Department who conducted a child custody investigation. The result of this investigation was a recommendation 

that the father be awarded custody of Kevin. Testimony was also 
heard from Dr. Betsy Rushworth,a clinical phychologist. Dr. 

Rushworth conducted a mental health evaluation of Kevin and 

his parents. The result of this evaluation was inconclusive 

indicating that Henry and Kevin had 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 in her dealings with Kevin, but was making a 

concerted effort to improve. The testimony of Kandis and Henry 

along with members of their immediate families and close friends 

was considered by 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 than his 

mother, Kandis. 

This Court has long followed the rule that unless there is 

a clear abuse of discretion by the trial court, a decision on custody 

will not be overruled on appeal. Love v. Love, 166 Mont. 303, 533 

P.2d 280; Gilmore v. Gilmore, 166 Mont. 47, 530 P.2d 480; Anderson v. Anderson, 145 Mont. 244, 400 P.2d 632. This Court is 

committed to the view that the welfare of the child is the paramount consideration in awarding custody and that it must of 

necessity be 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 section 48-332, R.C.M. 1947, of 

the recently adopted Uniform Marriage and Divorce Act. 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 

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 .I1 

Kandis asserts the district court erred in awarding the 

custody of Kevin to Henry. After careful consideration of the 

factors listed in section 48-332, the district court found and 

we agree, that the evidence indicated the awarding of Kevin's 

custody to his father was in the child's best interest. 

This Court feels the first two of the stated factors are 

not of controlling importance in this custody decision. 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, Kevin was approximately 3 years, 1 month old at 

the time of the trial. See: Hild v. Hild, 221Md. 349, 157 A.2d 

442. We find no error in the district court's failure.to interview Kevin as to his preference. 

-4- 
As to the third factor, interaction of the child to his 

parents, the evidence is clear Kevin has a far better relationship with his father than his mother. Henry and Kevin have an 

excellent relationship as testified to by the welfare worker 

who recommended that custody be awarded to Henry, and Dr. Rushworth, 

the examining clinical psychologist. This Court and other 

courts have previously held that independent evaluations by 

social or welfare departments are important factors to be considered in child custody decisions. Simon v. Simon, 154 Mont. 

193, 461 P.2d 851. Furthermore, there was considerable testimony 

from the parties' families and friends as to Henry's love and 

affection, and concern for his son Kevin. 

An analysis of the fourth factor, adjustment to home, 

school, and community, again reinforces the district court's 

decision. The record is clear that Henry has been the dominant 

force in providing 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 efforts have 

resulted in Kevin making a good adjustment to his community and 

environment in spite of the unsettled state of his short life. 

We take this opportunity to clarify one point in this 

Court's recent decision in Gilbert v. Gilbert, 166 Mont. 312, 

316, 533 P.2d 1079. In Gilbert, the father petitoned the district court for a change of custody from the mother. The trial 

caurt denied the father's petition because he found no material 

change of circumstances warranting a modification of the decree. 

The record before this Court showed that after one year under 

the original custody agreement the child became emotionally ill. 
Both parties recognized that fact and because the father lived 

in a university town where consultation with 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. 

In view of the facts, this Court found that there had been a 

change of circumstances and 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 has been 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 spends with 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 withdrawn when in 

the company of his mother, but on the other hand is happy and 

outgoing with 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 Uniform Marriage and Divorce Act 

and the statutory "tender yearst1 presumption found therein no 

longer exists, the universal rule is that this presumption is 

still conclusive in custody matters. Kandis would 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 than by the use of 

"controlling or conclusive" presumption. This rule is well 

established in other jurisdictions which have adopted the 

Uniform Marriage and Divorce Act. See: Johnson v. Johnson, 

Mo.App. 1975, 526 S.W.2d 33; Re-G.-T. v. Y.-G.-T., Mo.App.1976, 

543 S.W.2d 330; Eviston v. Eviston, Ky.App. 1974, 507 S.W.2d 

153. 

We affirm the district court decree in its entirety. 

We Concur: 

Chief Justice