No

No. 97-060

IN THE SUPREME COURT OF THE STATE OF MONTANA

1998 MT 231

JAMES W. GIRARD,

Petitioner and Respondent,

and

DONALD and JANYTH GIRARD,

Intervenors and Respondents,

v.

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BRUCE E. WILLIAMS, SANDRA WILLIAMS,

and FRANK D. LITKE, JR.,

Respondents and Appellants.

APPEAL FROM: District Court of the Twenty-First Judicial 

District,

In and for the County of Ravalli,

The Honorable John W. Larson, Judge presiding.

COUNSEL OF RECORD:

For Appellants:

 T. Geoffrey Mahar (argued); James A. Haynes Law Office, Hamilton, Montana

 Vincent Stark; Newman & Boyer Chicago Illinois 

 (for Appellant Frank D. Litke, Jr.)

For Respondents:

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 Judith A. Loring (argued), Attorney at Law, Stevensville, Montana 

 (for Intervenors and Respondents Donald and Janyth Girard)

Argued: October 9, 1997

Submitted: October 30, 1997

Decided: September 15, 1998

Filed:

__________________________________________

Clerk

Justice Karla M. Gray delivered the Opinion of the Court.

¶ Frank D. Litke, Jr. (Frank) appeals from the judgment entered by the TwentyFirst Judicial District Court, Ravalli County, on its Findings of Fact, Conclusions of 

Law and Decree of Custody granting Donald (Don) and Janyth (Jan) Girard full and 

permanent legal custody of David and Michael Girard. We reverse.

¶ The dispositive issue on appeal is whether the District Court erred in determining 

that Don and Jan had standing to intervene in the proceedings.

BACKGROUND

¶ Frank met Bonnie Girard (Bonnie) in Arizona in 1986 and they developed an 

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intimate relationship. At the time she met Frank, Bonnie was married to James 

Girard (Jim) and they remained married until Bonnie's death in 1990. On May 13, 

1987, Bonnie gave birth to Frank David Litke, III (David). While David was given 

Frank's last name, his birth certificate listed Jim as the natural father. In August 

1987, Frank filed a complaint in the Superior Court of Arizona, in and for the 

County of Maricopa (Arizona Superior Court), to establish paternity of David. 

Bonnie filed an answer in which she admitted that Frank was David's natural father. 

Frank did not pursue this complaint, but he remained convinced that he, rather than 

Jim, was David's biological father.

¶ Frank was arrested on January 3, 1988, and subsequently incarcerated in an 

Arizona state prison as the result of a revocation of probation for a previous theft 

conviction. While Frank was in prison, Bonnie gave birth to Frank Thomas Litke 

Girard (Michael) on June 3, 1988. Again, while Michael's name includes Frank's last 

name, his birth certificate listed Jim as the natural father.

¶ Jim was incarcerated in a federal penitentiary in Arizona on September 10, 1990, 

after being convicted of possessing a sawed-off shotgun. The two infants remained 

with Bonnie. On December 21, 1990, Bonnie was murdered in her home. The record 

indicates that David and Michael were alone with Bonnie's body for approximately 

24 hours before they were found and that they likely witnessed the murder. Both 

children continue to experience emotional and psychological problems resulting from 

this traumatic event.

¶ Following Bonnie's death, the Arizona Department of Economic Security (ADES) 

contacted Jim in the federal prison to determine where to place the children and, at 

Jim's suggestion, the children subsequently were transported to Montana to live with 

Jim's brother and sister-in-law, Don and Jan. David and Michael arrived in Montana 

in December of 1990, and have resided with Don and Jan since that time. Having no 

knowledge of Frank's relationship with Bonnie or the children, the ADES did not 

contact Frank regarding the children's placement at that time, nor was he aware of 

the ADES's actions until after the children had been removed from Arizona. The 

ADES denied Frank's subsequent request to be told where the children had been 

placed.

¶ In February of 1991, Frank's mother, Sandra Williams (Williams), and her 

husband filed a paternity action in the Arizona Superior Court, naming both Frank 

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and Jim as respondents and requesting the court to determine that Frank was the 

natural father of David and Michael and to award custody of the boys to either 

Frank or Williams. Frank claims that he instigated the filing of the Arizona paternity 

action after learning that Bonnie had been killed and the children had been removed 

to Montana.

¶ Frank was released from prison in early 1993 and, in March of 1993, the Arizona 

court amended Williams' paternity complaint to make Frank a petitioner, rather 

than a respondent, in the action. Jim participated actively in the paternity action and 

contested various of the Arizona court's orders, including an order that he and 

Frank submit to blood testing, through a number of appeals. He eventually had a 

blood group typing test completed, the results of which were consistent with his being 

the children's biological father, but did not undergo the DNA blood testing ordered 

by the Arizona court. Frank's DNA blood test indicated a greater than ninety-nine 

percent probability that he was the father of both David and Michael.

¶ Jim was released from the federal penitentiary in October of 1991 and moved to 

Ravalli County, Montana, where he resided with Don, Jan and the children. In April 

of 1992, Jim petitioned the Fourth Judicial District Court (now the Twenty-First 

Judicial District Court), Ravalli County, to legally change the names on the 

children's birth certificates to remove the name Litke. At the hearing on his petition 

for name change, Jim testified that he was the children's natural father. He did not 

give notice of the name change proceeding to either Frank or Williams and did not 

disclose to the District Court that the children were the subject of an ongoing 

paternity action in Arizona. 

¶ On April 2, 1993, Jim filed a Verified Petition for Custody in the Twenty-First 

Judicial District Court, alleging that he was the presumed natural father of David 

and Michael pursuant to § 40-6-105, MCA, and that it would be in the children's best 

interests to award him sole and permanent custody of the children. Jim named Frank 

and Williams as respondents in the action and acknowledged that Frank might assert 

that he, rather than Jim, was the children's natural father. The petition disclosed the 

ongoing paternity and custody action in Arizona, but stated Jim's belief that Arizona 

did not have jurisdiction to determine custody of the children. In this regard, Jim 

alleged that the District Court had sole and exclusive jurisdiction of the custody issue 

pursuant to the Uniform Child Custody Jurisdiction Act (UCCJA), §§ 40-7-101 

through 40-7-125, MCA, because the children had lived in Montana since December 

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1990, thus making Montana a more appropriate forum in which to determine 

custody. The verified petition requested the District Court to assume jurisdiction 

under the UCCJA in order to determine custody of the children, to award sole and 

exclusive custody to Jim, and to determine that neither Frank nor Williams had any 

rights or obligations with respect to either child. Frank responded to Jim's petition 

for custody by asserting that he was the children's natural father and that Jim had 

no blood relationship with either David or Michael. Frank requested the District 

Court to stay the proceedings on the petition for custody until the Arizona court 

ruled on the children's paternity and, thereafter, a determination could be made as 

to whether further custody litigation was necessary.

¶ On May 11, 1993, the District Court and the Arizona Superior Court conferred by 

telephone regarding the simultaneous proceedings and determined that the Arizona 

court would retain jurisdiction over the pending paternity action. Once paternity was 

established, the courts would confer again to determine whether custody was still an 

issue and, if so, which court should exercise jurisdiction over the custody issue under 

the UCCJA. Pursuant to a stipulation of the parties, the District Court ordered that 

Jim would have temporary custody of David and Michael pending the outcome of the 

litigation. In a second telephone conference, the courts again determined that 

Arizona had, and would retain, jurisdiction to render a final adjudication on the 

paternity issue. They further determined that the District Court had jurisdiction 

over the custody issue, the Arizona court would enter no orders regarding custody of 

the children and the Montana custody proceeding would be stayed pending the 

Arizona paternity determination.

¶ On February 17, 1994, the Arizona Superior Court entered its order decreeing that 

Frank was the natural and biological father of David and Michael. Based on its 

previous communications with the District Court, the Arizona court specifically 

declined to enter any custody orders and deferred jurisdiction over the custody issue 

to Montana. Frank subsequently moved the District Court to recognize the Arizona 

paternity order and grant him visitation with the children during the pendency of the 

custody proceeding. The District Court granted Frank's motion to recognize the 

Arizona paternity order, but denied his motion for visitation. The parties proceeded 

with the Montana custody action.

¶ Jim died on October 28, 1994. Don and Jan then moved the District Court to either 

substitute them as petitioners in Jim's place or, in the alternative, allow them to 

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intervene in the custody action. Frank opposed the motion on the basis that Don and 

Jan did not have standing to petition for custody of David and Michael. He also 

moved the court for an immediate judgment on the merits in his favor and custody of 

the children. The District Court entered its Findings of Fact, Conclusions of Law and 

Order permitting Don and Jan to intervene in the custody action and implicitly 

denying Frank's motion for immediate judgment on January 13, 1995. The court also 

ordered that Don and Jan would retain temporary custody of the children pending 

its ultimate custody determination. Don and Jan, as intervenors, subsequently filed a 

verified petition for custody of David and Michael.

¶ The District Court held a hearing on the merits of the custody proceeding in 

February and March of 1996. Its subsequent Findings of Fact, Conclusions of Law 

and Decree of Custody granted Don and Jan full and permanent legal custody of 

David and Michael and provided Frank with the opportunity for future visitations 

with the children. Judgment was entered accordingly and Frank appeals.

DISCUSSION

¶ Did the District Court err in determining that Don and Jan had standing to 

intervene in the proceeding?

¶ It has long been the law in Montana that a natural parent has a legal right to the 

custody of his or her child which, in the absence of a showing that the natural parent 

has forfeited that right, prevails over the interest of a third party seeking custody. 

See, e.g., August v. Burns (1927), 79 Mont. 198, 219-20, 255 P. 737, 744; In re 

Bourquin (1930), 88 Mont. 118, 123-24, 290 P. 250, 251-52; Henderson v. Henderson 

(1977), 174 Mont. 1, 10, 568 P.2d 177, 182. Indeed, in recent years, we have 

recognized that a parent's right to the custody of his or her natural child is not 

merely a matter of legislative enactment, but is a fundamental, constitutionally 

protected right. Matter of Guardianship of Doney (1977), 174 Mont. 282, 286, 570 

P.2d 575, 577 (citing Stanley v. Illinois (1972), 405 U.S. 645, 651, 92 S.Ct. 1208, 1212-

13, 31 L.Ed.2d 551, 558-59); Matter of Paternity of Vainio (1997), 284 Mont. 229, 

234, 943 P.2d 1282, 1285. Consequently, the ability of a third party--whether an 

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child relationship must be closely monitored. See In re A.R.A. (1996), 277 Mont. 66, 

71, 919 P.2d 388, 391; Matter of Guardianship of Aschenbrenner (1979), 182 Mont. 

540, 544-45, 597 P.2d 1156, 1160.

¶ Recognizing the importance of the rights involved in the natural parent-child 

relationship, the Montana Legislature has enacted a variety of statutory schemes 

pertaining to custody of children and termination of parental rights, and regulating 

the manner in which third parties may intercede in the parent-child relationship. We 

previously have noted at least five such statutory schemes in Montana and observed 

that, although there is a degree of similarity as to general subject matter, each 

statutory scheme has specific purposes and procedures which must be followed to 

ensure that a judgment or order in a given case is valid. Guardianship of 

Aschenbrenner, 182 Mont. at 552-53, 597 P.2d at 1164.

¶ Before briefly reviewing these statutory schemes and the various requirements 

thereunder, we note that the Legislature revised many of the statutes discussed in 

this opinion in 1997. The majority of the substantive amendments enacted by the 

1997 Legislature and, in particular, the amendments to the statute on which we base 

our decision here, are applicable only to proceedings initiated after October 1, 1997, 

however, and do not apply to this case. As a result, all statutory references and 

citations below are to the 1995 version of the Montana Code Annotated (MCA).

¶ Title 41, Chapter 3 of the MCA provides procedures by which the state may 

become involved in the care and custody of children in Montana and, when 

necessary, remove a child from a parent's custody or terminate the legal parent-child 

relationship. See generally Title 41, Chapter 3, parts 3, 4 and 6, MCA. Under these 

provisions, the custody of a child may be transferred from a natural parent to the 

state or other third party only upon a court order entered after a finding that the 

child is a youth in need of care. Section 41-3-406(1), MCA. A youth in need of care 

determination must be based on a finding that the child is abused or neglected (§ 41-

3-102(17), MCA), which includes physical or mental injury to the child, sexual abuse, 

failure to provide adequately for the child's basic necessities although financially able 

to do so, and abandonment by leaving the child under circumstances which make it 

reasonable to believe the parent does not intend to resume care of the child. Section 

41-3-102(7), MCA. Title 41 also sets forth criteria for the termination of the parentchild legal relationship and expressly requires that a court make a specific finding 

that certain circumstances exist which warrant termination of parental rights. See § 

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41-3-609(1), MCA. These circumstances include, in general terms, written consent of 

the natural parent to the termination, abandonment by the parent, and failure to 

comply with a court-approved treatment plan after a child has been adjudicated a 

youth in need of care. Sections 41-3-609(1)(a) through 41-3-609(1)(d), MCA.

¶ Title 40, Chapter 8 of the MCA regulates adoption proceedings through which the 

natural parents' parental rights to the care and custody of a child are terminated 

and, essentially, transferred to the adoptive parent or parents. The natural parents 

generally must consent, in writing, to the adoption of their child. Section 40-8-111(1)

(a), MCA. However, the consent of a natural parent is not required if his or her 

parental rights have been judicially terminated or if he or she has been convicted of 

specified criminal offenses, has been judicially deprived of custody of the child based 

on cruelty or neglect, has willfully abandoned the child, or has failed to contribute to 

the support of the child for a period of one year although able to provide such 

support. Sections 40-8-111(1)(a)(i) through 40-8-111(1)(a)(vi), MCA. 

¶ The Uniform Parentage Act (UPA), set forth in Title 40, Chapter 6 of the MCA, 

provides a mechanism by which the legal parent-child relationship may be 

established between a father and child or, in some cases, a mother and child. The 

UPA sets forth a number of specific factual circumstances which will raise a 

rebuttable presumption that a person is the natural father of a child. Section 40-6-

105, MCA. If a presumption of paternity is created, any interested party may bring 

an action to establish the existence, or nonexistence, of the father-child relationship. 

Section 40-6-107(1), MCA. If a child has no presumed father under § 40-6-105, MCA, 

however, there are limitations on who may bring a paternity action. Section 40-6-107

(2), MCA. The UPA also includes provisions regarding personal and subject matter 

jurisdictional requirements, venue, pretrial proceedings, blood testing and evidence 

appropriate to a paternity action. See §§ 40-6-109, 40-6-111, 40-6-112, 40-6-113, 

MCA. Once a paternity action is initiated under the UPA, a court may determine 

whether a judicial declaration of a father-child relationship would be in the best 

interests of a child. Section 40-6-114(1), MCA. Furthermore, a final judgment or 

order declaring the existence or nonexistence of a father-child relationship may also 

include provisions relating to custody, visitation, financial support and any other 

matter in the best interest of the child. Section 40-6-116, MCA.

¶ Child custody and visitation matters also may be determined pursuant to the 

statutes contained in Title 40, Chapter 4 of the MCA, which are part of what is 

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commonly called the Uniform Marriage and Divorce Act (UMDA). Jurisdictional 

and procedural matters relating to child custody proceedings under the UMDA are 

set forth in § 40-4-211, MCA. Under this statute, a custody proceeding may be 

initiated by a parent filing a petition for dissolution or legal separation which 

includes a request for a custody determination, a parent filing a petition for custody 

or, in specified circumstances, a nonparent filing a petition for custody. Section 40-4-

211(4), MCA. Custody must be determined in accordance with the best interests of 

the child and the court's determination must take into consideration, inter alia, the 

specific statutory criteria and presumptions set forth in § 40-4-212, MCA. A parent 

who is not granted custody of a child is entitled to reasonable visitation rights absent 

a finding by the court that such visitation would seriously endanger the child's 

physical, emotional, mental or moral health. Section 40-4-217(1), MCA.

¶ Finally, Title 72, Chapter 5 of the MCA provides a means by which a nonparent 

may be appointed guardian of a minor child in derogation of a living parent's 

parental rights. Such an appointment must be made by a court and only if "all 

parental rights of custody have been terminated or suspended by circumstances or 

prior court order." Section 72-5-222(1), MCA. Once appointed, the guardian has all 

the powers and responsibilities of a natural parent except for the obligation to 

financially support the child or be liable to others for the child's actions. Section 72-5-

231, MCA.

¶ In light of this variety of statutory schemes relating to parental rights and child 

custody, it is clear that

District Courts must identify and adhere to the proper procedure and standards 

to be used in the proceedings before them. Only then will the fundamental 

rights and relationship existing between parent and child be fully realized or, 

when necessary, properly severed.

Guardianship of Aschenbrenner, 182 Mont. at 553, 597 P.2d at 1164. In this regard, we 

emphasize the importance of an initial determination of the precise nature of the 

underlying proceeding involving custody of children. The criteria used in resolving 

whether, under given circumstances, a nonparent has standing to request custody of a child 

in opposition to a natural parent varies depending on the nature of the underlying 

proceeding. As a result, the proper analysis of a standing issue vis-a-vis a request for 

custody requires an initial determination of the precise nature of the case. Guardianship of 

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Aschenbrenner, 182 Mont. at 552-53, 597 P.2d at 1164.

¶ Here, the District Court granted Don and Jan's motion to intervene, but did not set 

forth the statutory basis on which it relied. Frank contends that this is a custody 

proceeding under the UMDA which is governed by the child custody statutes 

contained in Title 40, Chapter 4 of the MCA. He argues, on that basis, that the 

District Court erred in allowing Don and Jan to intervene in the custody action 

because Don and Jan failed to establish that he had voluntarily relinquished custody 

of the children and, absent such a showing, they do not have standing to seek custody 

of the children. 

¶ Don and Jan contend that the UMDA is inapplicable in this case. Rather, they 

argue that the applicable statutory criteria are contained in the UPA provisions set 

forth in Title 40, Chapter 6 of the MCA. They assert that Jim's petition for custody, 

their motion to intervene and their subsequent petition all alleged paternity issues 

and requested the District Court to determine both the paternity and the custody of 

David and Michael and, as a result, the court correctly applied the UPA and case law 

interpreting those statutes.

¶ Thus, in resolving whether the District Court erred in allowing Don and Jan to 

intervene and petition for custody of the children, we first must determine whether 

the underlying proceeding is a paternity action or a custody action. The answer to 

that question will dictate the statutory criteria and case law applicable in analyzing 

whether the District Court erred in concluding that Don and Jan have standing in 

this matter.

A. Nature of the proceeding below

¶ As discussed above, litigation relating to David and Michael has been ongoing in 

several courts since 1987. The specific proceeding with which we are concerned in 

this case began with the filing of Jim's verified petition in the District Court in April 

of 1993. The petition was entitled "Verified Petition for Custody" and the first 

allegation therein was that the purpose of the petition was to determine custody of 

David and Michael under the UCCJA. The petition further alleged that Jim is the 

natural father of the children and referenced the then-pending Arizona paternity 

case. The petition also stated Jim's position that, while the Arizona case requested 

both paternity and custody determinations, the Arizona court did not have 

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jurisdiction to award custody of David and Michael. According to Jim, Montana had 

exclusive jurisdiction over custody under the UCCJA. After alleging that Montana 

was the more appropriate forum in which to determine custody, the petition 

requested the District Court to communicate with the Arizona court "to the end that 

the custody issue may be litigated in the more appropriate forum . . ." and, 

ultimately, to award Jim sole and exclusive custody of David and Michael. Jim did 

not request the District Court to assume jurisdiction over, determine or otherwise 

address the issue of the children's paternity. Thus, Jim's petition clearly raised issues 

relating only to the custody of David and Michael.

¶ The District Court communicated with the Arizona Superior Court twice 

regarding the jurisdictional questions associated with the two pending cases and, 

after each communication, specifically declined to assume jurisdiction over the 

paternity issue. It also stayed the proceedings on Jim's petition for custody until the 

Arizona court rendered a final adjudication of paternity. When the Arizona court 

rendered its judgment that Frank was the natural and biological father of the 

children, the District Court formally recognized it as a final judgment on paternity 

and refused to address the repeated attempts by Jim, and subsequently by Don and 

Jan, to reopen the paternity issue in Montana. On this record, therefore, it is clear 

that the District Court did not consider paternity to be at issue in the Montana 

custody proceeding.

¶ Finally, we observe that the sole basis advanced by Don and Jan for standing to 

intervene and request custody in the District Court was § 40-4-211(4)(b), MCA, 

which allows a nonparent to petition for custody under the UMDA upon a showing 

that the child is not in the physical custody of one of his or her parents. They did not 

argue their standing to proceed in the action under the UPA paternity provisions. 

Thus, even Don and Jan considered the present case a custody proceeding, rather 

than a paternity proceeding, at the time they moved the District Court to allow them 

to intervene.

¶ On the basis of the record before us, we conclude that this is a proceeding between 

nonparents and the natural father to determine the custody of David and Michael. As 

a result, we review whether the District Court erred in granting standing to Don and 

Jan under the statutes and case law pertaining to child custody proceedings under 

the UMDA.

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B. Nonparent Standing in Child Custody Proceedings

¶ As stated above, the jurisdictional and procedural standards for child custody 

proceedings under the UMDA are set forth in § 40-4-211, MCA. Section 40-4-211(4)

(b), MCA, authorizes the commencement of a child custody proceeding by a person 

other than a parent "only if [the child] is not in the physical custody of one of his 

parents." If that showing is made, the nonparent has standing to pursue the custody 

proceeding. In re Custody of R.R.K. (1993), 260 Mont. 191, 197, 859 P.2d 998, 1002 

(citing Henderson, 174 Mont. at 5, 568 P.2d at 179). The standing requirement also 

must be satisfied in situations where, as here, a nonparent seeks to intervene in an 

ongoing custody proceeding based on the entitlement to bring an independent 

custody petition under § 40-4-211(4)(b), MCA. Custody of R.R.K., 260 Mont. at 201-

02, 859 P.2d at 1005.

¶ It is undisputed in the present case that, at the time Don and Jan moved to 

intervene in the custody action, the children were living in their home. Thus, it could 

be said that they had possession, or "physical custody," of David and Michael. 

However, "physical custody" for purposes of establishing standing under § 40-4-211

(4)(b), MCA, is not based simply on who has actual possession of a child at the time a 

custody proceeding is commenced. "Rather, the phrase 'relates to the custodial rights 

involved in the care and control of the child.' " Matter of K.M. (1996), 280 Mont. 

256, 259, 929 P.2d 870, 872 (quoting Henderson, 174 Mont. at 5, 568 P.2d at 179). As 

a result, to establish standing, a nonparent must demonstrate that the child's parent 

has voluntarily relinquished his or her right to physical custody and must present 

evidence as to the duration of the separation between the parent and child. Custody 

of R.R.K., 260 Mont. at 200, 859 P.2d at 1004; Matter of K.M., 280 Mont. at 260, 929 

P.2d at 872-73.

¶ While we have addressed the issue of whether a parent voluntarily relinquished 

custody of a child in both Custody of R.R.K. and Matter of K.M., we have not 

discussed what voluntarily relinquished means vis-a-vis an analysis of whether a 

nonparent has standing to petition for custody of a child under the UMDA. It is clear 

that a determination of whether a parent has voluntarily relinquished his or her 

right to the custody of a child is dependent on the particular facts and circumstances 

of a given case and, as a result, a precise, all-encompassing definition of the term 

"voluntarily relinquished" is neither possible nor helpful. However, an examination 

of the general meaning of the words may assist in applying the standard to the case 

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before us.

¶ "Voluntarily" is defined as "[d]one by design or intention . . . not accidental." 

black's law dictionary 1575 (6th ed. 1990). "Relinquish" is defined, in part, as "to 

renounce some right or thing." black's law dictionary 1292 (6th ed. 1990). Thus, in 

order for a parent to voluntarily relinquish his or her right to the custody of a child, 

he or she generally must manifest an intentional renouncement of the right to 

custody; a parent's custodial rights cannot be relinquished unconsciously or 

accidentally.

¶ Frank asserts that Don and Jan did not establish that he voluntarily relinquished 

his rights to custody of David and Michael and, therefore, the District Court erred in 

allowing Don and Jan to intervene in the custody action. While the District Court did 

not expressly address the standing issue in terms of whether Frank voluntarily 

relinquished his custodial rights, it found that Frank had abandoned the children as 

a result of his incarceration and concluded that a sufficient showing of dependency, 

abuse or neglect had been made to allow intervention. We review a district court's 

findings of fact to determine whether those findings are clearly erroneous. Matter of 

Custody of D.M.G., 1998 MT 1, ¶10, 951 P.2d 1377, ¶10, 55 St.Rptr. 1, ¶10. A finding 

of fact is clearly erroneous if it is not supported by substantial evidence, if the district 

court has misapprehended the effect of the evidence or if our review of the record 

leaves us with the definite and firm conviction that a mistake has been made. 

Custody of D.M.G., ¶10. We review a district court's conclusions of law to determine 

whether the conclusions are correct. In re A.R.A., 277 Mont. at 70, 919 P.2d at 391.

¶ Frank's first argument is that the District Court erred in finding that his 

incarceration constituted abandonment of the children. In addressing the court's 

abandonment finding, we note, at the outset, that abandonment is a statutory 

criterion in Title 41 to be evaluated in determining whether to grant the state 

temporary investigative authority or temporary custody and whether to terminate 

parental rights at the state's request. See §§ 41-3-102(7)(e), 41-3-401 through 41-3-

406, 41-3-609, MCA. Abandonment is also a criterion in determining whether 

parental consent to an adoption is required under Title 40, Chapter 8 of the MCA. 

See § 40-8-111(1)(a)(iii), MCA. 

¶ Section 40-4-211(4)(b), MCA, however, does not mention abandonment by a 

natural parent as a circumstance under which a nonparent may seek custody. 

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Custody of R.R.K., wherein we adopted the voluntary relinquishment standard, also 

does not set forth "abandonment" as a consideration in analyzing whether a parent 

has physical custody of a child for purposes of determining nonparent standing in a 

child custody proceeding under the UMDA. In Matter of K.M., however, the 

grandparents of the children at issue asserted that they had standing to request 

custody under § 40-4-211(4)(b), MCA, because one of the fathers had "abandoned" 

his children when he moved to another state. We concluded that the grandparents 

had not proven that the father abandoned his children and thereby voluntarily 

relinquished his right to custody. We did not separately address whether 

"abandonment," as that term is used in abuse, neglect and dependency proceedings 

and adoption proceedings, falls within the voluntary relinquishment of custody 

standard contained in § 40-4-211, MCA. Matter of K.M., 280 Mont. at 260, 929 P.2d 

at 873. 

¶ We discussed above the importance of recognizing and adhering to the standards 

and procedures contained in the various statutory schemes relating to child custody 

and parental rights. In light of the importance of delineating between the criteria 

contained in the different statutory schemes and the absence of an "abandonment" 

criterion in either § 40-4-211(4)(b), MCA, or Custody of R.R.K., we conclude that 

abandonment terminology has no place in determining a nonparent's standing in 

custody proceedings under § 40-4-211(4)(b), MCA. Rather, the appropriate standard 

to be applied in considering a nonparent's standing in a custody proceeding under 

the UMDA is whether the natural parent has voluntarily relinquished the right to 

custody of the child. Under this standard, it is clear that the District Court 

improperly made a finding that Frank had abandoned his children.

¶ In making its abandonment finding, however, the District Court may have been 

equating abandonment via incarceration to voluntary relinquishment pursuant to 

the language in Matter of K.M. Thus, although we have concluded that abandonment 

is not a proper standard to use in the present case, we will review the court's finding 

as it relates to voluntary relinquishment of the right to David and Michael's custody. 

In determining whether substantial evidence supports the District Court's finding 

that Frank's incarceration resulted in abandonment, we review the record as it 

existed at the time the court ruled on the motion to intervene.

¶ Frank was incarcerated in Arizona for approximately five years. He testified at the 

hearing on the motion to intervene that, prior to Bonnie's death, he corresponded 

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with her and the children and telephoned them several times each month to check on 

how they were doing. He provided the District Court with the letters and cards 

Bonnie sent to him which refer to his two sons and discuss their future together as a 

family. Frank's testimony in this regard was corroborated by Jim's deposition 

testimony that he saw the letters Bonnie and Frank sent each other, and by Ted 

Estrada, a neighbor of Bonnie's who testified that Frank would call his house to 

contact Bonnie because she did not have a telephone. While Frank's financial 

support of Bonnie and the children was limited, he testified that he did attempt to 

provide clothing, food and toys for them with the assistance of his mother and a 

charity organization that worked through the prison system. Although Don and Jan 

provided evidence that other people helped support Bonnie and the children while 

Frank was in prison, their evidence did not controvert Frank's evidence of his 

attempts to provide support.

¶ Moreover, as soon as Frank found out that Bonnie had been killed and the ADES 

had sent the children to Montana, he initiated--through his mother--the Arizona 

paternity action to have himself established as the children's natural father and to 

gain their custody. He was not advised of the ADES's actions in advance and had no 

opportunity to assert his rights at that time. Frank also attempted to find out 

precisely where in Montana the children had been sent, but the ADES refused to 

provide him with that information. 

¶ While it is true that Frank's incarceration resulted in an extended period of 

separation from the children, the evidence does not establish that he voluntarily 

renounced or relinquished his right to custody of David and Michael. On the 

contrary, Frank maintained contact with Bonnie and the children from prison, 

attempted to provide such support as he was able and initiated proceedings to 

establish his right to custody of the children as soon as he learned of Bonnie's death. 

He also has actively litigated this custody proceeding in Montana since its inception 

in 1993. Moreover, the record reflects that, prior to the final custody decree in this 

case, Frank requested visitation with David and Michael on four occasions. His first 

visitation request was in conjunction with his motion in March of 1994 to have the 

District Court recognize the Arizona Superior Court paternity order; the District 

Court denied this visitation request. Frank made subsequent requests in July of 1994, 

July of 1995 and December of 1995; only one of these requests was granted by the 

District Court. Frank's actions throughout this time period indicate his strong desire 

to be involved with and parent his children.

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¶ We conclude that the mere fact of Frank's incarceration does not rise to the level of 

a voluntary relinquishment of his right to physical custody when considered in 

conjunction with his actions to maintain contact with his children, establish his 

paternity and seek their custody. Thus, we further conclude that the District Court's 

finding that Frank abandoned his children as a result of his incarceration--to the 

extent that finding may be equated to a finding of voluntary relinquishment--is not 

supported by substantial evidence and is, therefore, clearly erroneous.

¶ Frank also argues that the District Court erred in concluding that Don and Jan 

had made a sufficient showing of dependency, abuse or neglect by Frank pursuant to 

§ 41-3-102, MCA, to allow intervention in the custody proceeding. He asserts that the 

court erred in applying Title 41 because no abuse or neglect proceeding had been 

initiated.

¶ As discussed above, Title 41, Chapter 3 of the MCA provides for proceedings 

instituted by the state to have children declared abused or neglected for purposes of 

removing a child from a parent's custody or terminating the legal parent-child 

relationship. See generally Title 41, Chapter 3, parts 3, 4 and 6, MCA. A county 

attorney or the state attorney general initiates such a proceeding by filing a petition 

alleging that a child is abused or neglected and requesting a district court to grant 

the state temporary custody or terminate the parent-child relationship. Sections 41-3-

401(1) and (10), MCA. A court properly may make a determination that a child is 

abused, neglected or dependent only in a proceeding instituted pursuant to, and in 

conformity with, the provisions of Title 41, Chapter 3 of the MCA. In re 

Guardianship of D.T.N. (1996), 275 Mont. 480, 485, 914 P.2d 579, 582; Guardianship 

of Aschenbrenner, 182 Mont. at 551, 597 P.2d at 1163; Henderson, 174 Mont. at 9, 

568 P.2d at 181. Such determinations--or other interjections of abuse and neglect 

considerations--are inappropriate and, indeed, erroneous as a matter of law if made 

in other types of statutory proceedings relating to the custody of children.

¶ In the present case, it is undisputed that no petition alleging abuse or neglect had 

been filed under Title 41, Chapter 3 of the MCA. Absent such a petition, the District 

Court had no jurisdiction to conclude that the children were dependent, abused or 

neglected under the provisions of Title 41, or otherwise raise considerations of 

dependency, abuse and neglect in this UMDA custody proceeding. See Guardianship 

of Aschenbrenner, 182 Mont. at 551, 597 P.2d at 1163; Henderson, 174 Mont. at 9, 

568 P.2d at 181. As a result, we conclude that the District Court erred as a matter of 

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law in applying Title 41 to determine that Don and Jan had standing to intervene in 

the custody proceeding pursuant to § 40-4-211(4)(b), MCA.

¶ Notwithstanding our conclusions that the District Court erred in several regards, 

Don and Jan contend that the District Court's finding that Frank had not paid child 

support for the children supports a determination that Frank voluntarily 

relinquished his right to physical custody of David and Michael. On that basis, they 

argue that the District Court properly allowed them to intervene in this custody 

proceeding.

¶ In order to establish standing to seek custody of a child pursuant to § 40-4-211(4)

(b), MCA, a nonparent must present "evidence sufficient to convincingly prove" that 

the parent voluntarily relinquished his right to custody of the child. See Matter of K.

M., 280 Mont. at 260, 929 P.2d at 873. While it is undisputed here that Frank has not 

paid child support for David and Michael, Don and Jan provide no legal authority 

for the proposition that failure to pay child support constitutes voluntary 

relinquishment of a parent's rights to custody of his children so as to provide them 

with standing in this case. As discussed above, a parent's failure to provide 

adequately for a child's basic necessities when financially able to do so is an express 

statutory basis for a finding that the child is a youth in need of care under Title 41, 

Chapter 3 of the MCA. See §§ 41-3-102(5), 41-3-102(7)(d) and 41-3-102(17), MCA. 

Similarly, a parent's failure to provide financial support for his or her child when 

able to do so is also a statutory exception to the requirement that a natural parent 

consent to the adoption of his or her child. See §§ 40-8-111(1)(a)(iv) and 40-8-111(1)

(a)(v), MCA. Section 40-4-211(4)(b), MCA, however, contains no provision under 

which a parent's failure to pay support when able to do so can serve as a basis for a 

nonparent's standing to seek custody of that parent's children. Nor do our cases 

under § 40-4-211(4)(b), MCA, hold--or even suggest--that failure to pay child support 

when able constitutes voluntary relinquishment of a parent's right to the custody of 

his or her child. In interjecting the failure to pay support consideration into its 

determination of whether Don and Jan had standing to intervene in this UMDA 

custody proceeding, the District Court again failed to identify and adhere to the 

standards applicable to the proceeding before it.

¶ Furthermore, Don and Jan presented no evidence at the hearing on their motion to 

intervene that Frank had the financial ability to pay child support either during the 

time he was incarcerated or during the two years between his release from prison 

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and the hearing. Nor did they controvert Frank's testimony that he attempted to 

provide clothing, food and toys for the children, with the assistance of his mother and 

prison charitable programs, while he was incarcerated. Thus, in addition to the 

District Court's error in injecting the support consideration into this proceeding, its 

finding that Frank had not paid child support was incomplete in failing to take 

financial ability into account. Had financial ability been taken into account, the 

finding would not be supported by substantial evidence and, as a result, would be 

clearly erroneous. 

¶ We conclude that Don and Jan failed to establish that Frank voluntarily 

relinquished his rights to the custody of David and Michael. As a result, they have 

failed to meet the standing requirements which would entitle them to intervene in a 

UMDA custody proceeding pursuant to § 40-4-211(4)(b), MCA. We hold, therefore, 

that the District Court erred in determining that Don and Jan had standing to 

intervene.

¶ Prior to concluding this opinion, it is appropriate to comment on Justice 

Leaphart's dissent. The dissent's two main criticisms of our opinion are, first, that we 

have concluded this proceeding is a custody matter controlled by § 40-4-211(4), 

MCA, and then applied the criteria which govern such proceedings and, second, that 

we have not taken into account whether the children's "constitutional right to an 

established family" confers standing on the Girards to assert rights on behalf of their 

"established family." We address these matters in turn.

¶ First, our conclusion that the underlying proceeding is a custody matter under the 

UMDA is based on the record before us. As discussed above, that record indicates 

that the basis advanced by Don and Jan for standing to intervene and request 

custody in the District Court was § 40-4-211(4)(b), MCA. Apparently the dissent 

would prefer that we change the basis on which the case proceeded prior to reaching 

this Court. We are not at liberty to do so. While Don and Jan attempted to reopen 

some of the paternity issues during the District Court proceedings, they simply did 

not argue their standing to proceed in the action under the UPA paternity provisions 

or any basis other than § 40-4-211(4)(b), MCA. Thus, our duty is to determine 

whether they had standing on the basis on which they sought it--§ 40-4-211(4)(b), 

MCA. We have concluded that they did not.

¶ Moreover, the dissent apparently would have us ignore the fact that the Montana 

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Legislature has enacted different statutory schemes to govern various proceedings 

involving children and simply read provisions from one such scheme into others. As 

discussed at some length above, each of the separate statutory programs--involving 

adoption, paternity, custody and the like--has its own procedures and standards to be 

applied in proceedings thereunder. If the Legislature had desired or intended to 

make the procedures and standards in all of those separate statutory programs 

consistent, it could and would have done so; it did not. As a result, we are not free to 

pick statutory requirements from, for example, adoption or paternity proceedings 

and engraft them onto a custody proceeding. To "blend" the Legislature's separate 

statutory schemes in such a manner would require us to ignore the rules of statutory 

construction which guide this Court, as well as our case law, and intrude into the 

Legislature's rightful domain. This we cannot do.

¶ Finally, the dissent is simply wrong in contending that we should have considered 

the children's "constitutional right to an established family" in determining whether 

the Girards have standing to request custody. The reason we could not, and did not, 

take that subject into account is that it is not before us in this case. Neither Don and 

Jan nor the children's guardian ad litem--who was an active participant in the 

District Court proceedings--raised an argument about the children's constitutional 

rights in the District Court as a basis for granting standing to the Girards under § 40-

4-211(4)(b), MCA. Consequently, and not surprisingly, that argument also was not 

raised on appeal. We must decide cases based on 

the issues raised in the trial court and properly presented to us on appeal. In this 

case, those issues simply do not include the question of David and Michael's 

constitutional rights insofar as those rights might impact on Don and Jan's standing 

to seek custody under § 40-4-211(4)(b), MCA.

¶ Our holding that the District Court erred in allowing Don and Jan to intervene in 

the custody proceeding necessitates our further holding that the District Court's final 

decree granting permanent custody of the children to Don and Jan is without legal 

effect. As a result, Frank--the natural father of David and Michael--is entitled to 

custody of his children. In this regard, we are aware of--and concerned about--the 

children's emotional and psychological problems stemming from their mother's 

violent death and the subsequent upheavals in their lives. We also are aware that 

Frank and the children have had virtually no opportunity to know--or develop 

relationships with--each other and that the experts who testified in this case were 

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unanimous in cautioning that a sudden change in custody and removal of David and 

Michael from their current home would be detrimental to the children's well-being. 

Thus, while no legal basis exists for delaying the change in custody, we strenuously 

encourage the parties to work together in planning and implementing the custody 

transition so as to result in as little trauma to all involved--especially, the children--as 

possible.

¶ Reversed and remanded for the entry of an order awarding custody of David and 

Michael to Frank.

/S/ KARLA M. GRAY

We concur:

/S/ TERRY N. TRIEWEILER

/S/ WILLIAM E. HUNT, SR.

/S/ JIM REGNIER 

/S/ JAMES C. NELSON

Justice W. William Leaphart, dissenting.

¶ I dissent from the Court's holding that the Girards lack standing.

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¶ The Court holds that this is a custody matter which is controlled by § 40-4-211(4), MCA 

(1995). Thus, in order for the Girards, as nonnatural parents, to establish standing they 

have to show that the children were not in the physical custody of one of their parents.

¶ The Girards argued that Frank's failure to pay child support for the children supports a 

determination that Frank voluntarily relinquished his right to physical custody. It is 

undisputed that Frank did not pay child support for David and Michael either during his 

incarceration or during the two years between his release from prison and the date of the 

hearing. Nonetheless, this Court concludes that since § 40-4-211, MCA (1995), does not 

make reference to lack of child support, it cannot form the basis for a finding of 

relinquishment of the right to physical custody. The Court's analysis fails to take into 

consideration that the requirement that the parent have "relinquished" his right to custody 

is itself not a specific statutory requirement. The house of cards upon which the Court's 

standing analysis is based is rooted in the provisions of § 40-4-211(4)(b), MCA (1995), 

which grant a nonparent standing to petition for custody "only if [the child] is not in the 

physical custody of one of his parents." The statute says nothing about a parent having 

"relinquished" his or her right to physical custody through lack of support or otherwise. 

¶ It escapes me why, at this juncture, we find it necessary to revert to the precise wording 

of the statute and focus on the fact that it makes no mention of lack of child support. In 

addressing the issue of support in the context of custody, I would interpret § 40-4-211(4), 

MCA (1995), consistently with Title 41, Chapter 3, MCA, which provides that failure to 

provide for a child's basic necessities when financially able is a basis for a finding that the 

child is a youth in need of care. I would also interpret it consistently with § 40-8-111(1)(a)

(iv), MCA (1995), which states that failure to provide support for one year excuses a 

petitioner for adoption from having to obtain the consent of the natural parent. A change in 

custody is certainly less severe to the natural parent than having the child adopted by 

another. If lack of support suffices for an adoption proceeding, it should likewise suffice 

for a custody proceeding. The legislature has said that failure to pay child support supports 

a finding that the youth is in need of care and also obviates the need to obtain consent of 

the parent for an adoption. Accordingly I have no problem concluding that failure to 

support, when able, constitutes voluntary relinquishment as required by our case law or, in 

the words of the statute, that it constitutes failure to exercise "physical custody." Section 

40-4-211(4)(b), MCA (1995). 

¶ I also dissent from the Court's holding that, even if lack of support were properly 

considered, the record would not support a finding of inability to support. Presumably this 

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holding relates back to the Court's earlier statement that the Girards did not refute Frank's 

testimony that he attempted to provide clothing, food and toys for the children, with the 

assistance of his mother and prison charitable programs, while he was incarcerated. This 

testimony may be sufficient to explain his lack of support while he was incarcerated, but it 

does not address his lack of support for the two years after he was released from prison-- a 

period of time during which he had a job and thus was able to make support payments. 

Accordingly, I find no basis for concluding that "[h]ad financial ability been taken into 

account, the finding [regarding Frank's ability to support] would not be supported by 

substantial evidence and, as a result, would be clearly erroneous." I would hold that lack 

of support is a proper consideration under § 40-4-211(b), MCA (1995), and if, as the Court 

holds, financial ability was not properly taken into account, I would remand for further 

proceedings and findings in that regard. 

¶ My other concern, which is more substantive, is that the Court has disposed of this 

matter on the narrow issue of the Girards' standing to petition for custody without taking 

into consideration the children's constitutional right to an established family and whether 

that right confers standing on the Girards to assert rights on behalf of the "established 

family." 

¶ In the final analysis, the Court has made a custody determination after considering the 

rights of the biological parent but not the rights of the children. This stems, in large part, 

from our failure to distinguish between the implications of proceedings that seek to 

terminate parental rights and proceedings that seek to determine custody. For example, in 

In re A.R.A. (1996), 277 Mont. 66, 919 P.2d 388, we held § 40-4-221, MCA, 

unconstitutional to the extent that it required a custody dispute initiated by a stepparent be 

resolved according to the best interest of the child. We reasoned that the statute infringed 

upon the rights of the natural parent who had not been adjudicated "unfit." In In re A.R.A., 

we relied heavily on Matter of Guardianship of Doney (1977), 174 Mont. 282, 570 P.2d 

575, which was a case involving termination of parental rights. In Guardinaship of Doney, 

we required a showing of abuse or neglect prior to terminating the natural father's rights as 

guardian of the children. Guardianship of Doney, 174 Mont. at 287, 570 P.2d at 578. That 

high standard was appropriate in Guardinaship of Doney because the implications of 

terminating parental rights are so severe. A custody proceeding is, however, not so harsh 

as a termination of parental rights and, in the context of a custody proceeding such as this, 

the Court should not be employing a blind deference to the rights of the biological parent 

without considering or balancing those rights against the rights of the children. 

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¶ In addition to distinguishing between termination and custody proceedings, we should 

differentiate between cases involving the removal of children from the natural parent's 

home and cases involving reunification of children with a natural parent. Thus when the 

children's established home is with parties other than the natural parent(s), the rights of the 

natural parent have to be weighed against the children's rights to the "established family." 

By failing to weigh these interests, the Court ignores both the importance of stable family 

relationships and children's rights to have such relationships maintained. 

¶ The United States Supreme Court has recognized that the "familial relationship" is more 

than a mere biological tie: 

[T]he importance of the familial relationship, to the individuals involved and 

to the society, stems from the emotional attachments that derive from the 

intimacy of daily association, and from the role it plays in "promot[ing] a way 

of life" through the instruction of children . . . as well as from the fact of 

blood relationship. 

Lehr v. Robertson (1983), 463 U.S. 248, 261, 103 S.Ct. 2985, 2993, 77 L.Ed.2d 614, 626 

(alteration in original) (citation omitted).

¶ For this reason the Court held in Lehr that when an unwed father demonstrates a 

full commitment to the responsibilities of parenthood, his interests acquire 

substantive protection under the Due Process Clause because he has acted as a father 

toward the children.

The significance of the biological connection is that it offers the natural father 

an opportunity that no other male possesses to develop a relationship with his 

offspring. If he grasps that opportunity and accepts some measure of 

responsibility for the child's future, he may enjoy the blessings of the parentchild relationship and make uniquely valuable contributions to the child's 

development. If he fails to do so, the Federal Constitution will not 

automatically compel a State to listen to his opinion of where the child's best 

interests lie.

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Lehr, 463 U.S. at 262, 103 S.Ct. at 2993-94, 77 L.Ed.2d at 627. 

¶ In Matter of Paternity of Adam (1995), 273 Mont. 351, 903 P.2d 207, we addressed 

the question of whether to judicially declare the father-child relationship and grant 

the biological father the prerogatives of a parent. Following the lead of the Court in 

Lehr, we looked beyond the biological ties, applied a best interest test, and considered 

"the existence of a home environment; the stability of the present home and family; 

the extent to which uncertainty of parentage already exists in the child's mind; the 

efforts and commitments (if any) that the putative father has taken to establish 

supportive and financial ties with the child; as well as any other factors which may 

be relevant in assessing the potential benefits or detriments to the child." Paternity of 

Adam, 273 Mont. at 357-58, 903 P.2d at 211. The Paternity of Adam case involved a 

declaration of paternity, not custody. However, the children's interest in a home 

environment and stability are no less compelling in a custody proceeding than in a 

paternity proceeding. Their rights are, I submit, entitled to constitutional protection 

under Article II, Section 15 of the Montana Constitution.

¶ Children's rights to privacy are protected under the Montana Constitution, Article 

II, Section 15, and those rights deserve as much, if not more, protection than the 

privacy rights of the biological parent. One commentator has observed, and I agree, 

that biological connections are not the exclusive determining factor as to what 

constitutes a "family." Heather M. Lationo, Note, Erger v. Askern: Protecting the 

Biological Parent's Rights at the Child's Expense, 58 Mont. L. Rev. 599 (1997). 

Rather, the importance of family "stems from the emotional attachments that derive 

from the intimacy of daily association . . . ." Smith v. Organization of Foster Families 

(1977), 431 U.S. 816, 844, 97 S.Ct. 2094, 2109, 53 L.Ed.2d 14, 35. Young children, 

unlike adults, have no psychological conception of relationships by blood ties. See

Joseph Goldstein et al., Beyond the Best Interest of the Child 12 (rev. ed. 1979). 

Conversely, a child's perception of a parent is shaped by his or her day-to-day needs. 

See James B. Boskey, The Swamps of Home: A Reconstruction of the Parent-Child 

Relationship, 26 U. Tol. L. Rev, 805, 808 (1995).

¶ The rights of children to maintain healthy nurturing family attachments are no less 

than the rights of biological parents to raise their children. In In re Baby Boy C, the 

natural father of a child appealed the grant of a petition for adoption. In re Baby Boy 

C (D.C. 1993), 630 A.2d 670. The court in Baby Boy C recognized the rights of 

natural parents to raise their children but concluded that they "are not absolute and 

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must give way before the child's best interests." Baby Boy C, 630 A.2d at 682. The 

Baby Boy C court held that "a finding of parental unfitness is not a constitutional 

prerequisite to granting an adoption petition notwithstanding lack of parental 

consent." Baby Boy C, 630 A.2d at 682. Several other jurisdictions have similarly 

affirmed the rights of children to supportive family relationships. See In re Adoption 

No. A91-71A (Md. 1994), 640 A.2d 1085, 1096 (citation omitted) (holding that "the 

controlling factor [in] adoption and custody cases is not the natural parent's interest 

in raising the child, but rather what best serves the interests of the child"); Matter of 

Pima Cty. Juv. Severance Action (Ariz. 1994), 876 P.2d 1121, 1136 (holding that "[j]

udges must simultaneously protect the parent's interests and safeguard the child's 

stability and security").

¶ Although the children in the present case had counsel appointed, their counsel 

asserted the rights of the children by adopting the position of the Girards. Thus when 

this Court found that the Girards had no standing, it indirectly held that the children 

had no standing and that their best interests would not be considered in making the 

custody determination.

¶ The Court determines that the Girards have no standing under § 40-4-211, MCA 

(1995), which grants standing to a nonparent "only if [the child] is not in the physical 

custody of one of his parents." Section 40-4-211(4)(b), MCA (1995). In interpreting 

this statute, this Court has held that "physical custody" does not really mean 

"physical" custody. Rather it means "custodial rights involved in the care and 

control of the child." Henderson v. Henderson (1977), 174 Mont. 1, 5, 568 P.2d 177, 

179 (citiation omitted). Beyond that, we have held that a nonparent must 

demonstrate that the parent has voluntarily relinquished his right to physical 

custody. See Matter of K.M. (1996), 280 Mont. 256, 260, 929 P.2d 870, 872-73. 

Although it would seem that a parent would have to have "physical custody" before 

he or she can "relinquish" physical custody, we give natural parents the benefit of 

this test despite the fact that they may not, in fact, have exercised any "care and 

control of the child."

¶ I suggest that when the legislature used the term "physical custody," it was inviting 

us to make a distinction between: (1) cases in which the child is in the physical 

custody of the parent and the issue is whether the child will be removed from that 

custody; and (2) cases in which the child is not in the physical custody of the parent 

and the parent is seeking to be united or reunited with the child.

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¶ When the children are not in the physical custody of one of their parents, it is 

incumbent upon the court to determine who does have physical custody of the 

children and whether the children have established a stable familial relationship with 

their non- biological parents. If the children have such an established family 

relationship, I would hold that the children, as well as their surrogate parents, have 

standing to assert privacy rights to the continuation of that relationship. The 

biological father seeking reunification has privacy rights as well. However, those 

rights are not as strong as they would be if he had both legal and "physical" custody 

and the issue was removal of the children from his established family. 

¶ I would hold that nonpayment of support can constitute voluntary relinquishment 

of the right to custody under our holding in In re Custody of R.R.K. (1993), 260 

Mont. 191, 859 P.2d 998. In the alternative I would hold that children have a 

constitutionally protected right to an established family and that the Girards, as the 

parents in the children's "established" family, with physical custody of the children, 

have derivative standing under § 40-4-211, MCA (1995), to litigate the issue of 

custody without having to establish that the biological father's rights have been 

terminated. 

¶ This Court's recent decision in In re A.R.A. (1996), 277 Mont. 66, 919 P.2d 388, 

relying on Matter of Guardianship of Aschenbrenner (1979), 182 Mont. 540, 597 P.2d 

1156, held that a court cannot, in a custody dispute between a biological parent and a 

third person, employ a "best interest of the child" test absent a termination of 

parental rights due to a finding of abuse and neglect or dependency. In re A.R.A., 277 

Mont. at 72, 919 P.2d at 392. Although I concurred in that decision, upon further 

reflection I am not convinced that a biological parent who does not have physical 

custody and whose parental rights have not been terminated should be awarded 

custodial rights without the court first considering whether the children have 

established a stable family relationship with surrogate parents and whether a (re)

unification with a biological parent would be in their best interests. In re A.R.A.

seems to be based upon a premise that the children have no constitutional rights that 

need to be weighed in the custody process. This is not a valid premise. The children's 

right to an established, stable family environment is entitled to as much, if not more, 

constitutional protection than the biological parent's right to play his genetic trump 

card. The biological father certainly has constitutionally protected rights in asserting 

his parenthood. There is, however, nothing in our constitution which requires that 

recognition of his rights precludes recognition of any right of the children to their 

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established family. Accordingly, I would overrule the In re A.R.A. and In re 

Aschenbrenner decisions to the extent that they deny surrogate parents, in the 

children's established family, standing to petition for custody unless the parental 

rights of the natural parent(s) have been terminated.

/S/ W. WILLIAM LEAPHART

Chief Justice J. A. Turnage joins in the foregoing dissent.

/S/ J. A. TURNAGE

Justice James C. Nelson specially concurs.

¶77 I concur in the legal analysis and in the result of the Court's opinion. Given the record, 

the state of the law, and the arguments made on appeal, there was virtually no other 

choice. I am, nevertheless, in agreement with much of what Justice Leaphart has to say in 

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his dissenting opinion regarding children's constitutional rights in proceedings such as the 

one at bar.

¶78 Under our Montana Constitution, Article II, Section 15, children enjoy the same 

fundamental rights as adults. At a bare minimum these include inalienable rights to a clean 

and healthful environment, to pursue life's basic necessities, to enjoy a safe, healthy and 

happy life (Article II, Section 3) and to basic human dignity (Article II, Section 4). 

¶79 Unfortunately, as in the instant case, these rights generally are not even factored into 

the arguments of the warring parties and their attorneys. On the other hand, where they are 

mentioned, the children's fundamental constitutional rights are typically trumped by the 

competing rights of the biological parent to custody and to parent his or her children--even 

in cases where the natural parent is dysfunctional, abusive and has little or no parenting 

skills or substantive relationship with his or her children. More often than not (and this 

case is an excellent example) the children's fundamental constitutional rights are simply 

ground up in the machinery of various statutory schemes weighted heavily in favor of this 

biologically-based right to custody and to parent and which exclude or marginalize other 

relationships that actually might be more in the children's (as opposed to the natural 

parent's) best interest. 

¶80 The Court’s answer to the dissent is, in my view, legally correct. Nonetheless, to the 

extent that Justice Leaphart speaks from the frustration of knowing that the result of our 

decision will be to cause these already traumatized children to lose the stable and loving 

home that they need, deserve and to which they are constitutionally entitled, then he 

speaks for me as well. The cold letter of the law has vindicated Frank's rights. Tragically, 

David's and Michael's were not even considered.

/S/ JAMES C. NELSON

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