No. 84-357 

IN THE SUPAPEI'4.E COURT OF THE STATE OF MONTANA 

1985 

IN E THE CUSTODY OF 

C.C., K.C., and B.C. 

APPEAL FROM: District Court of the Nineteenth Judicial District, 

In and for the County of Lincoln, 

The Honorable Robert Holter, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Susan Loehn, Eureka, Montana 

For Respondent : 

David W. Harman, Libby, Montana 

Filed: 

Submitted on Briefs: Nov. 2, 1984 

Decided: February 4, 1985 

Clerk 
Mr. Justice L. C. Gulbrandson delivered the Opinion 01 the 

Court. 

This is an appeal from an order of the District Court 

of the Nineteenth Judicial District, Lincoln County, Montana, 

the Honorable Robert M. Holter, presiding. Petitioner appeals both the denial of a motion to continue and the award 

of custody of the three minor children to respondent. 

Appellant (petitioner below) was not present at the 

non-jury trial held on June 7, 1984. The court denied her 

attorney's motion for a continuance because of her absence 

and subsequently qranted custody to respondent on June 19, 

1984. On July 13, 1984, appellant filed a notice of appeal 

and later filed several motions. The motion to stay judgment 

was denied, the motion for relief from judgment was dismissed 

for lack of jurisdiction, and the motion to proceed without 

pre-payment of costs was qranted. We affirm in part and 

reverse in part. 

D.W.C. (respondent) , currently twenty-seven years old, 

and N.M.V.A. (appellant), currently twenty years old, were 

married on February 14, 1980, in Eureka, Montana and made 

Eureka their h0m.e during marriage. C.C. was born on April 

16, 1979. According to an affidavit by appellant and testimony by both respondent and his mother, respondent was not 

the natural father of C.C. However, respondent was listed as 

the father on the birth certificate at appellant's request 

and appellant and respondent were living together at the time 

of C.C.'s birth. C.C. was never adopted by respondent. K.C. 

and B.C., twins, were born during the marriage of the 

parties. 

The parties separated early in 1984 when appellant 

moved the three children with her to a new residence in 
Eureka. The petition for dissolution of the marriage, filed 

March 8, 1984 by appellant, alleged all three children were 

issue of the marriage and asked that custody be awarded to 

appellant. The response and counter-petition also alleged 

all three children were issue of the marriage and asked that 

custody be awarded to respondent. 

The trial date of June 7, 1984 was set by the court on 

April 26, 1984. Both parties were informed of that date. 

Appellant left Montana, taking the children with her, about 

two and one-half weeks before the trial and did not return 

to appear at the trial.. Affidavits by appellant filed in 

July of 1984, stated that the reason for her failure to 

appezr was her lack of funds to travel and that she wanted to 

appear to present her case. 

At trial, A.M.C., one of the grandparents, testified 

regarding the living conditions of the children during the 

marriage. They lived in poverty and filth. They had sores 

when they were in diapers and were not changed an a regular 

basis. They wore dirty clothes and slept in dirty beds. The 

grandparents purchased a lot and constructed a home to afford 

the grandchildren adequate shelter and purchased substantially all their clothing. The grandparents also took the children into their home for visits and would bathe and feed 

them. 

Respondent is unemployed and a slow learner. He has 

graduated from high school and is seeking employment. In 

Eureka, the children would live in the house constructed by 

the grandparents and be cared for by respondent, the grandparents or a babv-sitter, and their situation would be monitored by the appropriate county agency. 
Appel-lant's residence was somewhere in the state of 

Washington at the time of the court's order with her exact 

location and plans for the children unlcnown. 

G.A.C. and A.M.C. petitioned for visitation rights as 

grandparents and were allowed to intervene by stipulation of 

the parties. They were awarded visitation rights of one 

weekend per month and two weeks during the summer. The 

visitation rights of the grandparents are not an issue in 

this appeal. 

The two main issues presented for appeal are: 

(1) Was it prejudicial error by the District Court to 

deny appellant's motion for a continuance? 

(2) Was the District Court's award of custody proper? 

As to the first issue, section 25-4-501, MCA provides 

that a motion to postpone a trial because of absence of 

evidence shall be made only upon an affidavit showing materiality of the expected evidence and that due diligence has 

been used to procure it. Here, appellant's counsel did not 

submit an affidavit to the District Court. In view of the 

mandatory language of the statute the District Court did not 

err in denying the motion. State v. Harvey (1979), 184 Mont. 

423, 603 P.2d 661 and State v. Pascgo (1977), 173 Mont. 121, 

566 P.2d 802. 

Section 25-4-503, MCA, states that the court may use 

its discretion in granting a postponement if on grounds other 

than absence of evidence and upon a showing of good cause and 

in the furtherance of justice. There is no indication of 

other grounds for a postponement and no indication there 

would have been good cause if there had been other grounds. 

Appellant was aware of the trial date and the purpose of the 

trial and indicated no good reason for her voluntary a-bsence. 
We therefore hold that the trial court did not err in denying 

appellant's motion for a continuance. 

The second issue begins with a determination of whether 

or not respondent is a parent of C.C. under section 40-6-1.05, 

MCA, for the purpose of determining custody. 

Section 40-6-105 (1) , MCA states there is a presumption 

of paternity under a number of circumstances, one of which 

occurs when the man and the mother are married after the 

child's birth and the man, with his consent, is named as the 

child's father on the birth certificat-e. That is exactly 

what occurred in the present case. However, section 

40-6-105(2), MCA states that this is a rebuttable presumption. Both parties have acknowledged under oath that respondent is not C.C.'s natural father. His name appeared on the 

birth certificate because the parties mistakenly assumed this 

would constitute an adoption. This is sufficiently clear and 

convincing evidence to rebut the presumption of paternity. 

Therefore respondent may be granted custody of C.C. only as a 

non-parent. 

A parent may not be deprived of custody unless there 

has been a finding of unfitness, abuse or neglect. Korol v. 

Korol (Mont. 1980), 613 P.2d 1016 at 1019, 37 St.Rep. 1215 at 

1218, citing Matter of Doney (1977), 174 Mont. 282, 570 ~.2d 

575. Here the trial court's findings indicate appellant's 

unfitness and inability to care for minor children. In In re 

the Marriage of Concepcion (Mont. 1984), 687 P.2d 718 at 720, 

41 St.Rep. 1675, at 1677, we stated: 

"Under Rule 52 (a) , M.R.Civ.P., findings 

of fa.ct shall not be set aside unless 

clearly erroneous. This Court's standard 

of review was stated in Jensen - v. Jensen 

(Mont. 1981), 629 P.2d 765, 768, 38 

St.Rep. 927, 930 and recently cited with 

approval in In re --- the Marriage - of Beitz 
(Mont. 1984), 683 P.2d 485, 41 St. Rep. 

1247, 1249: 

"'This Court will not substitute its 

judgment for that of the trier of fact. 

We will consider only whether substantial 

credible evidence supports the findings 

and. conclusions. Findings will not be 

overturned unless there is a clear preponderance of evidence against them, 

recognizing that evidence may be weak or 

conflicting, yet still support the 

findings. ' " 

Appellant did not indicate, nor could we locate any finding 

of fact not supported by the record. Thus the findings will 

not be overturned and respondent, even though he is a 

non-parent, may be considered as a potential custodian for 

C.C. 

Custody is determined in accordance with the best 

interests of the child. As stated in section 40-4-212, MCA: 

"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 interrelatianship 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 hone, 

school, and community; and 

" (5) the mental and physical health of 

all individuals involved." (Emphasis 

added. ) 

"Prior decisions of this Court have established that district 

courts must consider the wishes of the children regarding 

custody and ma.ke findings as to their wishes or why they were 

not followed." (Emphasis added.) In re the ~arriage of 

Murphy (Mont. 1983), 666 P.2d 755 at 757, 40 St.Rep. 1188 at 

1190, citing Milanovich v. Milanovich (Mont. 1982), 655 P.2d 
961, 39 Sl~.~ep. 1554; Kaasa v. Kaasa (1979), 181 Mont. 18, 

591 P.2d 1110; and In re Marriage of Kramer (1978), 177 Mont. 

61, 580 P.2d 439. While the award of custody is obviously 

within the District Court's discretion, it has no discretion 

to not consider the criteria in the statute. Markegard v. 

Markegard (1980), 616 P.2d 323, 37 St.Rep. 1539 and Tomaskie 

v. Tomaskie (Mont. 1981), 625 P.2d 536, 38 St.Rep. 416. The 

District Court here did not make any findings regarding the 

wishes of the children and the effect of those wishes because 

there was no evidence on this point. We have recognized that 

the wishes of four-year olds (the approximate age of the 

twins, C.C. was five at the time of trial) may have little 

weight. Murphy, 666 P.2d at 757. Even though a new trial 

may not change the result, we remand in order to include 

evidence regarding the children's wishes and for a custody 

determination in accordance with section 40-4-212, MCA. 

Affirmed in part and reversed and remanded for proceedings consistent with this opinion. 

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