No. 07-431 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

IN RE THE CUSTODY OF 

DONALD D. ZIER, JR. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Russell K. Fillner, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Michael G. Majerus, Billings, Montana 

For Respondent: 

D. Michael Eakin, Montana Legal Services, Billings, 

Montana 

Submitted on Briefs: Jan. 14, 1988 

Decided: March 1, 1988 

Filed: MAR 1 - 1988 

Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Mr. Zier filed a petition for modification of child 

custody in the District Court for Yellowstone County. The 

respondent moved to dismiss the petition on grounds that the 

Crow Tribal Court was a more appropriate forum. The District 

Court granted this motion and deferred jurisdiction to the 

Tribal Court. We affirm. Mr. Zier presents one issue on 

appeal : 

Did the District Court abuse its discretion by dismissing the petition for modification of custody, thereby deferring to the jurisdiction of the Crow Tribal Court? 

Petitioner Donald Zier and respondent Meredith Hogan 

were married in 1983 at Crow Agency, Montana. Donald, Jr., 

was born to the couple in December of that year. In 1984 Mr. 

Zier petitioned the District Court of the Thirteenth Judicial 

District for a legal separation. Ms. Hogan responded by 

requesting dissolution, which was granted in March 1985. The 

parties were granted joint legal custody over Donald, Jr., 

with Ms. Hogan as primary custodian. 

In August of 1985 Ms. Hogan and Mr. Zier agreed that he 

would have physical custody of the boy. Mr. Zier petitioned 

the Crow Tribal Court for guardianship, and the tribal court, 

in October 1985, placed the child in the custody of his 

father for a period of six months at which time another 

hearing was to be held to determine permanent custody. 

Evidently that hearing was not held. Mr. Zier moved to 

Billings in April 1986. In October 1986 he filed a petition 

in District Court seeking modification of that court's 1985 

custody award and asking for full legal custody of Donald, 

Jr. 

Later, the tribal court held an evidentiary hearing 

concerning custody of the boy and continued the matter until 
completion of a home study by Court Services of the Thirteenth Judicial District. In February 1987, Ms. Hogan filed 

a motion to dismiss the petition for modification of custody 

in the District Court on grounds that the Crow Tribal Court 

was a more appropriate forum. On July 29, 1987, the District 

Court deferred jurisdiction of the custody matter to the Crow 

Tribal Court and dismissed Mr. Zier's petition for modification of custody. This is the order from which Mr. Zier 

appeals. 

Did the District Court abuse its discretion by dismissing the petition for modification of custody, thereby deferring to the jurisdiction of the Crow Tribal Court? 

Mr. Zier argues that the District Court, not the Crow 

Tribal Court, was the "most appropriate forum for handling 

this custody dispute. 'I Section 40-7-108, MCA, provides in 

pertinent part as follows: 

A court which has jurisdiction under this 

chapter to make an initial or modification decree 

may decline to exercise its jurisdiction any time 

before making a decree if it finds that it is an 

inconvenient forum to make a custody determination 

under the circumstances of the case and that a 

court of another state is a more appropriate forum. 

(2) A finding of inconvenient forum may be 

made upon the court1 s own motion or upon motion of 

a party or a guardian ad litem or other representative of the child. 

(3) In determining if it is an inconvenient 

forum, the court shall consider if it is in the 

interest of the child that another state assume 

jurisdiction. For this purpose it may take into 

account the following factors, among others: 

(a) if another state is or recently was the 

child's home state; 

(b) if another state has a closer connection 

with the child and his family or with the child and 

one or more of the contestants; 
(c) if substantial evidence concerning the 

child's present or future care, protection, training, and personal relationships is more readily 

available in another state; 

(d) if the parties have agreed on another 

forum which is no less appropriate; and 

(e) if the exercise of jurisdiction by a court 

of this state would contravene any of the purposes 

stated in 40-7-102. 

This statute should be considered in the district court's 

determination whether to exercise jurisdiction or defer to 

the tribal court in a child custody matter. In re Bertelson 

(1980), 189 Mont. 524, 540, 617 P.2d 121, 130. However, in 

Bertelson we outlined other factors, in addition to the 

statute, which the District Court must consider in deciding 

the jurisdiction question. We will not overturn the District 

Court's judgment in the absence of clear abuse of discretion. 

Both parties argue to this Court facts which simply are not a 

part of the record on appeal. In addition, they have appended to their briefs documents which were not before the District Court and therefore will not be considered by this 

Court. 

The District Court in its order referred to a March 

hearing, yet the appellant has not filed a transcript of that 

hearing with this Court. What we do have is the following 

list of stipulated facts which was before the District Court: 

1. Petitioner got actual physical custody of 

the parties' child in August 1985. 

2. Petitioner moved from the Crow Reservation 

to Billings in the last part of April of 1986. 

3. Respondent has been a student and attending school in Nevada during the last year. Her 

permanent residence has always been on the Crow 

Reservation. 

4. Respondent currently resides on the Crow 

Reservation. 

5. Both the maternal and paternal grandparents of the child reside on the reservation. 
6. An evidentiary hearing was held in the 

Crow Tribal Court. Before completion of the evidentiary hearing, the trial judge continued the 

matter until the completion of a home study by 

Court Services. The tribal court is awaiting that 

report before proceeding. 

These facts together with the rest of the record on appeal 

present no basis for seriously questioning the District 

Court's discretion. On the contrary, we commend both the 

District Court and the Crow Tribal Court for the obvious 

spirit of cooperation between them. The District Court's 

decision to defer to the Tribal Court's jurisdiction avoids 

competition and conflict between the courts, promotes the 

purposes of the Uniform Child Custody Jurisdiction Act as set 

forth in § 40-7-102, MCA, and discourages continuing battles 

for custody. Because Mr. Zier has failed to show an abuse of 

discretion, we affirm the District Court' s deference to the 

jurisdiction of the Tribal Court and its dismissal of the 

petition for modification of custody. Af