No. 84-156 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

JOHN CHARLES SCHU11AN, 

Petitioner and Appellant, 

-vs-- 

LORRIE DIAN BESTROM, 

Respondent and Respondent, 

and 

J.L.B., Minor Child. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Diane G. Barz, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Harris, Morin & Collins; Robert P. Morin argued, 

Billings, Montana 

For Respondent : 

James J. Sinclair argued, Billings, Montana 

Guardian Ad Litem: 

Ted Lechner, Billings, Montana 

Submitted: October 31, 1984 

~~~id~d: January 3, 1985 

Filed: JAM 3 - 1985 

Clerk 
M.r. Justice John C. Sheehy delivered the Opinion of the 

Court. 

John Charles Schuman appeals from that portion of a 

paternity action judgment of the District Court, Thirteenth 

Judicial District, Yellowstone County, granting sole custody 

of his son, JLB, to the child's mother, Lorrie Dian Bestrom, 

and from the visitation schedule of father to child, 

established by the District Court. 

John (father) filed his complaint in District Court, 

seeking to establish his paternity of JLB, requesting joint 

custody, liberal visitation, and provisions of child support. 

T,orrie (mother) filed an answer and crossclaim seeking to 

terminate the father's rights to JLR. 

The District Court appointed Ted Lechner as quardian ad 

litem of JLE. 

The District Court determined that the sole custody of 

the child should go to the mother, with scheduled visitation 

rights awarded to the father; that the father should pay the 

sum of $150 per month to the mother as support for the child; 

the father should make a further payment of $461.98 to the 

mother as reimbursement for costs attendant to the birth of 

the child; and that the father should maintain an accident 

and health policy extended to cover the child. 

The father appeals from that portjon of the judgment 

relating to the sol-e custody granted to the mother and the 

visitation rights qiven to him. On consideration, we have 

concluded to affirm the District Court. 

Issues raised by the father are these: 

1) The District Court erred in awarding sole custody of 

the minor child to the mother; 
2) The District Court erred in denying the natural 

father reasonable visitation privileges with the minor child; 

and, 

3) The District Court's determination of child custody 

and visitation denied the father equal protection of the 

laws. 

John and Lorrie began dating i.n June of 1980. A son, 

JLR was born to them on August 18, 1982. Both parties agree 

that John is the child's natural father. Althou-gh they never 

married, John and Lorrie maintained a relationship until 

March 1983. During that time, John and JLB developed a close 

father-son relationship. John's family also developed a 

close relationship with the baby. John paid no child 

support, but did purchase both maternity and baby items for 

Lorrie and the baby. 

After the split of the couple, the father had the right 

to visit the child on an agreed schedule. In approximately 

three months, however, the a-greed schedule was not adhered to 

because of the mother's dissatisfaction with the arrangement. 

She remarried in October 1983, after the filing of the 

paternity action by the father. From October until the time 

of the action the mother has resided in Zortman, 165 miles 

from Billings, where the father and mother had been together. 

I 

The father argues that the grant of sole custody to the 

mother was incorrect because the District Court treated him 

differently as an unwed father from how he would have been 

treated had he been married to the mother; that the district 

judge used only Ch. 6, Title 40, MCA, the Uniform Parentage 

Act, in determining custody, rather than relying on the test 

for joint custody set forth in Ch. 4, Title 40, MCA. The 
father further argues the district iudge failed to address 

the factors relating to the best interests of the child, 

found in 5 40-4-212, MCA. He also argues that the district 

judge erred in failing to set forth reasons for denying the 

-joint custody as required in SS 40-4-222 through 224, MCA. 

The mother responds that the district judge did not err 

i-n granting her sole custody, that the evidence does not 

support an award of ioint custody because the parents do not 

cooperate well with each other, and the distance they live 

apart and their divergent religious views should be 

considered. 

In Montana, the statutory procedure for determining the 

paternity of a. child born out of wedlock is found in the 

Uniform Parentage Act, 5s 40-6-101 through 135, MCA. Under S 

40-6-107, MCA, any interested party may bring an action for 

the purpose of determining the existence or nonexistence of 

the fa.ther and child relationship. Such an action is a civil 

action, 5 40-6-115, MCA, and the power of the District Court 

to enter a judgment or order is found. in 40-6-116, blCA. 

That section includes the followi.ng provision: 

" (3) The judgment or order may contain any other 

provision directed against the appropriate party to 

the proceeding concerning the duty of support, the 

custody and guardianship of the child, ~risitation 

wrivileges with the child, the furnishing of bond 

or other security for the payment of the judqment, 

- or 9 other matter --- in tfie-best interest -- of the 

child. The iudament or order mav direct the father J ., 

to pay the reasonable expenses of the mother's 

pregnancy and confinement." (Emphasis added.) 

In another portion of the code, it is provided in our 

statutes that in custody disputes involving both parents of a 

minor child., custody shall be awarded "according to the best 

interests of the child" to both parents jointly or to either 

parent. Section 40-4-223, MCA. If an award is made to 
either parent, the statute requires the court to consider the 

factors set out in S 40-4-212, MCA. Included in those 

factors set out in the latter statute are the wishes of the 

child's parents as to custody, the wishes of the child, the 

interaction and the relationship of the child with the parent 

and. other persons affecting his best interest, the child's 

adjustment to his home, school and communit:7 and the mental 

an2 physical health of a13 individuals involved. We have 

held that when a court is considering the factors under S 

40-4-212, MCA, it should set forth the bases upon which the 

court determines custody. Cameron v. Cameron (Mont. 1983) , 

641. P.2d 1057, 1-060, 39 St. Rep. 485, 488; Milanovich v. 

Milanovich (Mont. 1982), 655 P.2d 959, 39 St.Rep. 1554. 

When several statutes may applies to a given situation, 

such a construction, if possible, is to be adopted as will 

give effect to all. Section 1-2-101, MCA. 

The same rules that apply to harmonizing real or 

apparent conflicts within the internal language of a statute 

should also apply to real or apparent conflicts between 

different portions of the code touching the same subject. It 

is good statutory construction law that where one part of the 

law deals with a subject in general and comprehensive terms, 

while another part of it deals in a more minute and definite 

way, the two parts should be read together and, if possible, 

harmonized, with a view to giving effect to a consistent 

legisl-ative pclicy. City of Butte v. Industrial Accident 

Eoard (1916), 52 Mont. 75, 156 P. 130; Stadler v. City of 

Helena (1912), 46 Mont. 128, 1-27 P. 454. 

The specific power given to the District Court to 

determine custody of a child in a paternity case is found in 

5 40-6-116(3), supra. The specific power of a court to 
consider joint custody of a minor child in disputed custody 

cases is found in 40-4-224, MCA. Tn either case, the 

statute determines that custody shall be decided in the "best 

interests of" the child. We see no conflict in the bases for 

such decisions, since both are bottomed on the best interest 

of the child, and find no reason to fault the District Court 

for determining custody in this case under the paternity 

provisions, since this is a paternity case. 

Moreover, the District Court gave sufficient reasons for 

its determination to award sole custody to the mother. The 

District Court adopted the testimony of Ted Lechner, zn 

acknowledged expert in the field. The court found that his 

testimony indicated that a "bonding of the mother and the 

child was most important for the child at this time," more 

important the court found than a bonding between the father. 

Neither the statutes nor our case law have developed the 

specific rights and responsibilities of parents who share a 

joint custody arrangement over a minor child and this case 

does not require us to make such determinations; nonetheless, 

it seems clear that joint custody will not be satisfactory 

unless it exists between parents willing to cooperate with 

each other in custody matters. Lembach v. Cox (Utah 1981), 

639 P.2d 197, 200. Where the parties do not agree on joint 

custody, or the District Court determines that joint custody 

is not suitable, then the best interests of the child 

require, and the statutes provide, that the custodial parent 

determines the child's upbringing, his edccation, health, 

care and religious training, unless specifically limited by 

the District Court. Section 40-4-218, MCA. 

The father has failed to demonstrate to us that the 

District Court, by applying the Uniform Parentage Act 
provisions to its determination of custody, insteac! cjf the 

provisions applicable to an ordinary marital dissolution case 

has not acted in the best interests of the child. We 

therefore find no merit in the issue regarding sole custody. 

I1 

For much the same reasons, the father contends that the 

District Court's determination of his visitation rights with 

the child are prejudiced against him because the court 

applied its power under paternity cases, rather than under 

provisions relating to visitation disputes in marital 

dissolution or other child custody cases. 

Under this issue, the father maintains that the District 

Court should have utilized fj 40-4-21.7, MCA, instead of S 

40-6-116, MCA; that the schedule of visitation permitted to 

the father was not "reasonable" as required under § 40-4-217; 

that the schedule prevents the father from having visits with 

his child on important holidays throughout the year and on 

weekends and that the District Court did not explain its 

reasons for so "restricting" his visitation rights. 

Although the court clearly determined visitation under § 

40-6-116, relating to paternity actions, we see no detriment 

to the father in the District Court determiring such 

visitation under the test of the best interests of the child, 

the same test for determining the best interests of the child 

under S 40-4-212, MCA. 

The father claims he was deprived of visitation with his 

son on Christmas Eve, Christmas Day, Thanksgiving, the 4th of 

July, Easter and on alternating weekends. The District Court 

granted the father visitation through a four-day weekend over 

Memorial Day, and a four-day weekend on Labor Day, and 

further visitations from December 19 to Decemher 22 of each 
year and for 2 weeks during the summer, such weeks not to be 

consecutive. 

The District Court gave reasons for so decreeing the 

visitation rights. The court relied on the testimony of 

Lechner that the quality of the time that the father spent 

with the child was important. The court determined that 

weekend visitation was not in the child's best interest 

because it required a trip of 165 miles each way, which was 

not quality time to be spent with the child. The court 

determined that providing four-day weekend visits on the 

holidays specified, the Christmas season visit, and the 2 

separate weeks of visitation d-uring the summer would give the 

father a chance to form a bonding relationship with the child 

under the best of circumstances. These findings of the 

Distrj-ct Court were well within its discretion, and may not 

Se set aside by us unless clearly erroneous. Rule 52, 

M.R.Civ.P. 

Again the father has not convinced us that a different 

result would occur with respect to visitation if the District 

Court had applied the sections relating to visitation in 

marital dissolution disputes instead of the best interest 

test under the paternity case provisions. These statutes are 

not in discord. 

111 

The father's final issue is that the application of the 

paternity case statutes in determining custody and visitation 

instead of the statutes under the marital dissolution section 

of the code deprives him of equal protection of the law. 

There is no merit to this contention. He has been granted a 

full hearing as to the best interests of the child in 

determining custody and his right of visitation and the 
controlling test under each set of statutes is the best 

interest of the child. 

Accordingly, the judgment of the District Court is 

affirmed. p~ 

We Concur: 

~4--&$ t 

Chief Justice 

Justices 

Mr. Justice Daniel J. Shea dissents and will file a written 

dissent later. 
DISSENT OF MR. JUSTICE DANIEL J. SHEA 

SCHUMAN v. BESTROM 

DATED : L., 148.5 
Mr. Justice Daniel J. Shea, dissenting: 

I dissent. The crucial concern in reviewing application 

of the best interests of the child standard is to ensure that 

the determination truly was in the child's best interest. 

Section 40-4-212, MCA, provides the tests for determining the 

best interest. The statute is not based on the prerequisite 

of a valid marriage, and rightly so, because the marital 

status of a child's parents is both irrelevant and often in a 

state of change or turmoil when the need arises to make the 

determination. 

Section 40-6-116(3), MCA, provides no best interest 

criteria to apply in establishing the existence of the 

parent-child rel-ationship. Further, the statute -- does not 

even require a best interest determination to be made even 

though judges perhaps customarily use this boilerplate 

language without ever considering what it truly means. The 

statute is total-ly insufficient to ensure the proper best 

interest criteria wil.1 be applied--if they are considered at 

all. Further, section 40-6-11613), though it does not refer 

to section 40-4-212, has no need to duplicate the criteria 

set forth in section 40-6-1-16 (3). 

We ruled in Markegard v. Markegard (Mont. 1980), 616 

P.2d 323, 37 St-Rep. 3539 that in determining child custody, 

trial courts must consider the statutory criteria set forth 

in 40-4-212, MCA. In that case, the trial court's 

statements were nothing more than conclusory statements, not 

reflecting the evidentiary basis for the decision. 

It is an axiomatic principle that the welfare of a 

child, that is, the best interest of the child, is the prime 
factor that must apply to illegitimate as well as legitimate 

children. I.. 0 Am. Jur. 2d Custody Child, the 

inquiry is the same, and if nc presumption exists against the 

father, no reason exists for the failure to apply the 

statutory criteria in section 40-4-212, for it is this 

statute that sets out the applicable factors that must be 

weighed in reaching a custody decision. 

In Bazemore v. Davis (D.C. App. 19781, 394 A. 2d 1377, 

the Court held that in custod-y disputes between natural 

parents of illegitimate children (some authority says there 

are never illegitimate children, just illegitimate parents) 

the standard. to he applied is the best interest of the child 

without regard to any presumption against the father. The 

Court reversed a trial court decision that in effect 

concluded that a fit mother could never be deprived of 

custody. The Court held: 

"[Tlhe trial courts shall decide the delicate 

question of what is the child's best interests 

solely by reference to the facts of the particular 

case without resort to the crutch of a presumption 

in favor of either party." 

In Com. ex rel. Scott 77. Martin (Pa.. Super. 1977), 381 

A.2d 173, the Court expressly stated that the best interest 

of the child in these situations is the overriding factor 

that must govern the outcome: 

"It is therefore apparent that when parents dispute 

about which one of them should have custody of 

their illegitmate child, the hearing judge is 

obliged to satisfy two distinct, although 

overlapping, clzims. First, the judge r.ust satisfy 

each parent's claim to be treated as equal to the 

other. The judge must start his examination of the 

case on this basis; he therefore must not 

discriminate against the father--or the 

mother--simply because the child is illegitimate. 

Second, the judge must satisfy the child's claim to 

have the decision made according to the child's 

best interest. It is at this point that the claims 

overlap. If the judge starts his examination of 

the case by discriminating against the father, not 
only does he treat the ffither un 

treats - the child unfairly, for 

narrowed the definition -- of what 

--- he in the child's best interest" 

CThe Court in Martin vacated the 

for appropriate find.ings. I 

.fairly but -- he also 

-- he has improperly 

disposition might 

(Emphasis added. ) 

order and remanded 

Here, the trial court's limitation of custody 

consideration to S 40-6-113(3), MCA, effectively worked a 

presumption in favor of the mother, the custodial parent. 

Here, as was the case in Martin, treating the father unfairly 

also treats the child unfairly. That is not the child's best 

interests. This matter should be remanded for a 

determination of best interest of the child, based on the 

criteria set forth in S 40-4-212, MCA.