No. 13564 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

MARLYS D. HENDERSON, 

Plaintiff and Appellant, 

KENNETH A. HENDERSON, 

Defendant and Respondent, 

______________-___---------------------------------- 

DONNA RIPHENBURG, 

Petitioner, 

MARLYS D. HENDERSON, 

Respondent. 

Appeal from: District Court of the Eighth Judicial District, 

Honorable Truman G. Bradford, Judge presiding. 

Counsel of Record: 

For Appellant: 

Marra, Wenz & Iwen, Great Falls, Montana 

John Iwen argued and David Hopkins argued, Great Falls, 

Montana 

For Respondent : 

Howard Strause argued, Great Falls, Montana 

Submitted: April 27, 1977 

~ecided: AUG - 2 3 i9n 
Mr. Justice Daniel J. Shea delivered the Opinion of the Court. 

The natural mother, Marlys Henderson, appeals from a judgment 

of the district court, Cascade ~ount~, awarding permanent custody and 

guardianship of her two minor children to their paternal aunt, Donna 

Riphenburg. 

Three issues are raised on appeal: 

1. Whether the aunt has standing to bring an action for 

temporary custody of the children. 

2. Whether the aunt can obtain temporary custody without 

filing a petition or giving notice to the mother. 

3. Whether the court can grant permanent custody to the aunt 

without a showing the mother caused the children to be abused, neglected or dependent. 

Three proceedings were consolidated for hearing in the district court and are involved in this appeal. The first proceeding 

began with the divorce of Marlys and Kenneth Henderson on June 12, 

1975. At that time, Marlys received custody of their daughter 

Jennifer, born March 24, 1972, and Kenneth received custody of their 

son Joel, born August 11, 1974. In December 1975 Marlys and Kenneth 

returned to the district court, each seeking custody of both children. They eventually agreed Kenneth would retain custody of Joel 

and take temporary custody of Jennifer, pending investigation of 

the question of permanent investigation of the question of permanent 

custody of both children by the court of conciliation. This proceeding was never concluded because of Kenneth's untimely death in 

an automobile accident April 2, 1976. 

The second proceeding began immediately upon ~enneth's 

death. Kenneth's attorney appeared that same day before the district 

court and submitted only an affidavit in support of a proposed order 

giving Donna Riphenburg, Kenneth's sister, temporary custody of the 
children. The court granted the order without giving notice to the 

natural mother. On April 12, 1976, the aunt filed a petition for 

appointment as guardian of the children, and without notice to the 

mother, the court appointed the aunt temporary guardian on April 

13, 1976. On April 13, 1976, the mother's attorney was given notice 

the court would hold a hearing on the guardianship petition. 

The third and last proceeding in the district court was commenced by a petition filed by the aunt, June 7, 1976, seeking permanent custody of the children. All three proceedings were tried 

together July 6, 1976. On July 13, 1976, judgment was entered appointing the aunt guardian of the children and also awarding her 

permanent custody of the children. One of the reasons for the 

guardianship proceeding was to allow the aunt to administer the proceeds of a life insurance policy on the father's life on behalf of 

his children. 

The court's granting temporary custody to the aunt without 

notice to the mother was error. Section 48-331(4), R.C.M. 1947, 

of the Uniform Marriage and Divorce Act, provides: 

"(4) A child custody proceeding is commenced in 

the district court: 

"(a) by a parent, by filing a petition 

Rh " (i) for dissolution - or legal separation; -- 

pa~"anA.fl)'.R- rm 

-g.++i-74 e cr ow~y J* &, WP~: d~ 

"(b) by a person other than a parent, by filing a 

petition for custody of the child in the county in 

which he is permanently resident or found, but only 

if he is not in the physical custody of one of his 

parents." (Emphasis supplied.) 

The aunt did not have standing to begin a custody proceeding under 

section 48-331(4)(b). The aunt argues the requirement that the 

children not be in the physical custody of one of the parents was 

met because at the time of the father's death and at the time the 

aunt picked the children up, they were being cared for by a babysitter. We find no merit to this argument. "Physical custody" is 
not limited to having actual, immediate control of the physical 

presence of the child. Rather, this phrase relates to the custodial 

rights involved in the care and control of the child. Burge v. 

City and County of San Francisco, 41 C.2d 608, 262 P.2d 6 (1953). 

To interpret this phrase otherwise would allow a nonparent to file 

a petition for custody anytime the child is out of the physical 

presence of the parent or parents, even if for a few minutes, or 

under the watchful eyes of an authorized babysitter, as here. It 

must be emphasized that at the moment of the father's death, the 

mother, as the surviving parent of the children, automatically assumed the legal right to custody of the children under section 61- 

105, R.C.M. 1947: 

" * * * If either parent be dead, or unable, or 

refuse to take the custody, or has abandoned his 

or her family, the other is entitled to its custody, services, and earnings." 

Section 48-333(1), R.C.M. 1947, sets out the procedures for 

a temporary order of child custody: 

"(1) A party to a custody proceeding may move 

for a temporary custody order. The motion must 

be supported by an affidavit as provided in section 

48-340. The court may award temporary custody 

under the standards of section 48-332 after a hearing, or, if there is no objection, solely on the 

basis of the affidavits." (Emphasis supplied.) 

Here, the aunt was not a party to the original custody proceeding, 

nor did she become one by filing an affidavit after the father's 

death. Under section 48-331(5), R.C.M. 1947, " * * * The court, 

upon a showing of good cause, may permit intervention of other 

interested parties." Nothing in the record suggests, however, that 

the aunt tried to intervene in the original action before the father's 

death. Accordingly, after the father's death, the aunt lacked standing in the original proceeding to move for temporary custody. 

Finally, section 48-340, R.C.M. 1947, sets out the procedure 

for submitting affidavits in custody proceedings: 
"A party seeking a temporary custody order or 

modification of a custody decree shall submit 

together with his moving papers an affidavit 

setting forth facts supporting the requested 

order or modification and shall give notice, 

together with a copy of his affidavit, to other 

parties to the proceeding, who may file opposing 

affidavits. The court shall deny the motion unless it finds that adequate cause for hearing the 

motion is established by the affidavits, in which 

case it shall set a date for hearing on an order 

to show cause why the requested order or modification should not be granted." 

Even if the aunt did have standing to bring the action for 

temporary custody, under the above statute she failed to follow 

correct procedures. First, no motion was filed with the affidavit. 

Second, no notice was given to the mother, who was among "other 

parties to the proceeding". Third, and most important, the affidavit 

was deficient because it did not set forth evidentiary facts in support of the requested order. This statute requires the facts to 

be set out in detail so the court can make an informed decision, but 

here there was simply no basis upon which the court could determine 

the aunt should have temporary custody. The affidavit stated in 

relevant part: 

"That approximately on the 2nd day of April, 1976, 

Kenneth A. Henderson was killed in an automobile 

accident, That it would be in the best interests 

of the children involved for Donna Riphenburg to 

be granted the temporary care, custody and control 

of the minor children. That Donna Riphenburg is 

the sister of Kenneth A. Henderson and is responsible 

and capable of caring for the needs of said children. 

That this affidavit is made in support of a Court 

order directing that Donna Riphenburg be granted the 

temporary care, custody and control of Joel Henderson 

and Jennifer Henderson." 

This affidavit is devoid of even an attempt to comply with section 

48-340. It does not even acknowledge the existence of the children's 

mother. Under these circumstances the district court had no jurisdiction to grant temporary custody to the aunt. 

The dangers of failure to comply with this statute are 

illustrated by what happened here. Regardless of any deficiency in 

obtaining temporary custody, the aunt argues the issue is moot since 
a full hearing on the merits of the petition for permanent custody 

was held on July 6, 1976. We disagree. The transcript on appeal 

indicates the district judge conducting the hearing on permanent 

custody mistakenly assumed that another district judge had conducted 

a hearing and found misconduct on the part of the mother before he 

awarded temporary custody of the children to the aunt. This temporary 

custody order in effect created a presumption in favor of the aunt 

and shifted the burden of proof to the mother, and was in direct 

violation of section 48-333(1), R.C.M. 1947. 

We next discuss the aunt's petition for permanent custody. 

The petition was filed under the Montana Uniform Marriage and Divorce 

Act, and the pertinent part of the petition stated: 

"That Donna Riphenburg is a fit and proper person 

to have the permanent care, custody and control of 

said minor children. That it would be in the best 

interests of said minor children to grant their 

care, custody and control to Donna Riphenburg. 

That Marlys D. Henderson is not a fit and proper 

person to have the care, custody and control of 

said minor children. That during the short time 

that Marlys D. Henderson had custody of Jennifer 

Henderson, she did not conduct herself as a proper 

mother and by her actions indicated that she is 

not a proper person to be granted custody of said 

minor children." 

To this allegation the mother answered in her affirmative defenses 

that the petition: 

" * * * contains no allegations, whatsoever, that 

said minor children are abused, neglected or 

dependent as defined in Section 10-1301, R.C.M., 

1947, and that Section 48-331(d) (4) (b) , R.C.M., 

1947, requires such a showing before a natural 

mother can be stripped of her rights to the care, 

custody and control of her children by an individual who is not a natural parent of said children." 

The district court did not directly rule on this affirmative 

defense and concluded at the end of the hearing that the mother was 

not a fit and proper person to have custody of her children. We 

hold the district court should have allowed this affirmative defense 

and ruled the proper procedure for the aunt to undertake was a separate proceeding under the dependent and neglect statutes, rather 
than under the Uniform Marriage and Divorce Act. 

The record shows the district court reached its decision on 

the basis of the "best interest" test set out in section 48-332, 

R.C.M. 1947, of the Uniform Marriage and Divorce Act, which was not 

designed to give nonparents the same standards for determining custody of children. The Uniform Code Commissioners' note on this 

section states in 9 Uniform Laws Annotated, Marriage and Divorce 

Act, § 401, p. 504: 

" * * * if one of the parents has physical custody 

of the child, a non-parent may not bring an action 

to contest that parent's right to continuing custody under the 'best interest of the child' standard 

of Section 402. If a non-parent (a grandparent or 

an aunt or uncle, perhaps) wants to acquire custody, 

he must commence proceedings under the far more 

stringent standards for intervention provided in 

the typical Juvenile Court Act. In short, this subsection has been devised to protect the 'parental 

rights' of custodial parents and to insure that intrusions upon those rights will occur only when the 

care the parent is providing the child falls short 

of the minimum standard imposed by the community at 

large--the standard incorporated in the neglect or 

delinquency definitions of the state's ~uvenile 

Court Act." (Parenthetical matter in original.) 

This is not a radical departure from existing law. This Court stated 

50 years ago in August v. Burns, 79 Mont. 198, 219-220, 255 P. 737 

" * * * in a proper proceeding a child may be 

taken from a surviving parent, or from both parents, 

when it appears that such are not proper persons 

to have the custody of the child. However, the 

surviving parent is legally entitled to the custody 

of the children * * * and is required by law to 

support and care for such children * * * and the 

paramount interest of the child, or its wish, will 

not justify the court, in the absence of a showing 

of unfitness or inability to support a child, in 

arbitrarily taking a child from its natural guardian 

and turning it over to a stranger." 

Clearly, no petition to take the children away was filed here under 

the abuse, neglect and dependency statutes. It is important to note 

the mother was never, either before or after the father's death, 

declared to be unfit to have the custody of the children. This 

being so, the district court had no jurisdiction to take the children 
away from their natural mother. 

The "best interest of the child" test is correctly used to 

determine custody rights between natural parents in divorce proceedings. In this situation the "equal rights" to custody which 

both the father and mother possess under section 61-105, R.C.M. 1947, 

are weighed in relation to each parent's ability to provide best for 

the child's physical, mental, and emotional needs upon the breakdown 

of the marital relationship. "Fitness" of each parent is determined 

only in relation to the other and not to society as a whole. However, 

where third parties seek custody, it has long been the law in Montana 

that the right of the natural parent prevails until a showing of a 

forfeiture of this right. Ex parte Bourquin, 88 Mont. 118, 290 

P. 250 (1930). See also Matter of Fisher, 169 Mont. 254, 545 P.2d 

654, 33 St.Rep. 183 (1976). The Uniform Marriage and Divorce Act 

does not change this law. This forfeiture can result only where 

the parent's conduct does not meet the minimum standards of the 

child abuse, neglect and dependency statutes. 

The remaining question concerns guardianship. It is clear 

that the district court appointed the aunt guardian because of its 

decision on her petition for permanent custody. If the district 

court would have awarded permanent custody to the mother, we cannot 

envision the court still would have appointed the aunt guardian of 

the estates and persons of the children. It stands, therefore, that 

the guardianship, with one exception, must also be set aside. One 

of the reasons the aunt petitioned the court to be appointed guardian 

was so she could administer on behalf of the children the proceeds 

of a life insurance policy on their father's life. The aunt was 

named as beneficiary of the policy with the understanding that she 

administer the money for the children. No good purpose would be 

achieved in changing the guardianship with regard to the insurance 

proceeds. Accordingly, the aunt is retained as a limited guardian 
only, to administer the insurance policy proceeds on behalf of the 

children. 

The permanent custody order of the district court is set 

aside and the children are ordered returned to their mother. This 

decision is without prejudice to the aunt to start proceedings 

under Title LO, Chapter 13, Revised Codes of Montana, 1947. The 

guardianship appointments are also vacated with the exception stated. 

This cause is remanded to the district court for further 

proceedings in accordance with this opinion. 

We Concur: 

\ f 

\ 

Chief Justice