No. 84-156 IN THE SUPREME COURT OF THE STATEOF MONTANA 1984

JOHN CHARLES SCHU11AN, Petitioner and Appellant,

-vs-- LORRIE DIAN BESTROM,Respondent and Respondent, and J.L.B., Minor Child.

APPEAL FROM: District Courtof the Thirteenth Judicial District, Inand for the County of Yellowstone, TheHonorable DianeG. Barz,Judgepresiding.

COUNSEL OF RECORD:

ForAppellant: Harris,Morin & Collins;Robert P. Morin argued, Billings, Montana For Respondent: JamesJ. Sinclair argued, Billings,Montana GuardianAd Litem: Ted Lechner, Billings,Montana

Submitted: October 31, 1984 ~~~id~d: January 3,1985

Filed: 

## JAM 

## 3-

## 1985

ClerkM.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 JudicialDistrict, 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, establishedby the DistrictCourt. John (father) filed his complaint in District Court, seeking to establish his paternity of JLB, requesting joint custody, liberalvisitation, andprovisions 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 themother,with scheduled visitation rights awarded to the father; that the father should pay the

sumof $150per month to themother 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 healthpolicy extended to cover the child. The father appeals from that portjon of the judgment relating to the sol-ecustody granted to the mother and the visitation rights qiven to him. On consideration, we have concluded to affirm theDistrictCourt. Issuesraised by the father are these: 1) TheDistrict 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, JLRwas born to them on August 18, 1982. Both parties agree that John is the child's natural father. Althou-ghthey never married, John and Lorrie maintained a relationship until March 1983. During that time,John and JLBdeveloped 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 thebaby. After the split of the couple, the father had the right to visit the child on an agreed schedule. In approximately threemonths,however, the a-greedschedulewas 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 fromBillings, where the fatherand 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. Thefather 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 districtjudge did not err i-n granting her sole custody, that the evidence does not support an award of ioint custody because theparents do not cooperate well with each other, and the distance they live apart and their divergent religious views should be considered. InMontana, the statutoryprocedure fordetermining 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.therand childrelationship. Such an actionisa civil action, 5 40-6-115, MCA, and thepower of theDistrict Court to enter a judgment or order is found. in 40-6-116, blCA. That section includes the followi.ngprovision: 

### "(3) The judgment or order may contain any other provisiondirected againstthe appropriateparty 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 thepayment of thejudqment, or 

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

## --- -- child. The iudament orordermav directthefather 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 statutesthatincustody disputes involvingbothparents of a minor child., custody shallbe awarded "according tothe best interests of the child" toboth parents jointly ortoeither parent. Section 40-4-223, MCA. If an award is made toeither 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 interactionand the relationship of the childwith 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), 655P.2d 959, 39 St.Rep. 1554. When several statutesmay 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 differentportions of the code touching the same subject. It is good statutory construction law thatwhere onepart of the law deals with a subject in general and comprehensive terms, while anotherpart 

### of it deals in a more minute and definite way, the twoparts should be read together and, if possible, harmonized, with a view to giving effect to a consistent legisl-ativepclicy. City of Butte v. Industrial Accident Eoard (1916), 52 Mont. 75, 156 P. 130; Stadler 

### v. City of Helena (1912),46 Mont. 128, 1-27P. 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 toconsider joint custody of a minor child in disputed custody cases is found in 40-4-224, MCA. Tn either case, the statutedetermines that custody shall be decided in the "best interestsof" the child. We seeno conflict in the bases for such decisions, sinceboth 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 apaternity case. Moreover,theDistrictCourt 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 requireus tomake 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 DistrictCourt. Section 40-4-218,MCA. The father has failed to demonstrate to us that the District Court, by applying the Uniform Parentage Actprovisions to its determination of custody, insteac!cjf the provisions applicable to an ordinarymarital 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 rightswith 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 fathermaintains 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 fatherwas 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 clearlydetermined visitation under § 40-6-116, relating to paternity actions,we seeno detriment to the father in the District Court determiring such visitation under the test of the best interestsof the child, the same test for determining thebest interests of the child under S 40-4-212,MCA. The fatherclaimshe was deprived of visitation with his

son on ChristmasEve,ChristmasDay,Thanksgiving, the 4th of July,Easter and on alternatingweekends. The District Court granted the fathervisitation through a four-dayweekend over Memorial Day, and a four-day weekend on Labor Day, and further visitations from December 19 to Decemher 22 of eachyear and for 2weeks 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 separateweeks of visitationd-uringthe summerwould give the fathera chance to formabonding relationship with the child under the best of circumstances. These findings of the Distrj-ctCourt 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 occurwith respect tovisitation if theDistrict Court had applied the sections relating to visitation in marital dissolution disputes instead of the best interest testunder thepaternity caseprovisions. 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 themarital 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 thecontrolling 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 awritten dissent later.DISSENT OF MR. JUSTICE DANIEL J. SHEA

SCHUMAN v. BESTROM

DATED: 

### L.,

## 148.5Mr. JusticeDaniel J. Shea,dissenting:

Idissent. The crucial concern in reviewing application of thebest 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 isboth irrelevantand 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-lyinsufficient 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 statementswere 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 primefactor that must apply to illegitimateas 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 custodydecision. In Bazemore v. Davis (D.C. App. 19781, 394A. 2d 1377, the Court held that in custod-ydisputes 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 eitherparty." 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 judger.ustsatisfy each parent's claim to be treated as equal to the other. The judgemust starthis examinationof the case on this basis; he therefore must not discriminate against the father--or the mother--simply because the child is illegitimate. Second,the judgemust 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, notonly 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 inMartin vacated the for appropriate find.ings. 

### I .fairlybut he also 

### -- he has improperly 

### -- disposition might

(Emphasisadded.) 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,aswas the case inMartin, treating the fatherunfairly also treats the child unfairly. That isnot 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.