NO. 93-440 IN THE SUPREME COURT OF THE STATE OF MONTANA

ROBERT ALLEN ROMO, CONNIE ROMO, and TOM ROMO, Petitionersand Appellants,

TARA DAWN HICKOK, LATOYA PATRICIA HICKOK, by and through their natural guardian, PATRICIA HICKOK, Respondents and Respondents.

APPEAL FROM: District Court of the Fifteenth Judicial District, In and for the County of Roosevelt, The HonorableM. James Sorte,Judgepresiding.

COUNSEL OF RECORD: ForAppellants: Mary L. Zemyan,Attorney at Law, Wolf Point,Montana For Respondents: Carol C. Johns,Attorney at Law, Wolf Point,Montana (forTara Dawn Hickok) Laura Christoffersen, Attorney at Law, Wolf Point, Montana (forPatricia Hickok)

Filed: Submitted on Briefs: February 24, 1994 Decided: March 28, 1994Justice 

### Terry N. ~rieweiler delivered the opinion of the Court. Robert Allen Romo petitioned the District Court 

### for the Fifteenth Judicial District in Roosevelt County to establish paternity, custody, and visitation rights for LaToya Patricia Hickok, a minor child. Tom Romo and Connie Romo joined in the petition to obtain rights of visitation. The Ramos appeal from thatportion of the District Court order awardingvisitationto the grandparentsand awarding supervisedvisitationtothefatherafter his release from theMontana State Prison. We affirm the District Court. The following issues are presented for our review: 1. Did the District Court err

### when it found thatvisitation at the prison was not in the child's best interest? 2. Did the District Court abuse its discretion when 

### it ordered that, after his release 

### from prison, the father's visitation will be supervised by maternal relatives? 3. 

### Did the 

### District Court 

### err when it did 

### not set a visitation schedule 

### for the father after his release fromprison, but merely provided that visitation would be permitted? 4. Did the ~istrict Court errby giving the mother absolute control over visitation by the paternal grandparents? FACTUAL BACKGROUND LaToya Patricia Hickok was born 

### on February 24, 1991. Her parents, Tara Dawn Hickok and Robert Allen Romo have not married each other. On October 18, 1991,Robertwas sentenced 

### to ten

### years 2at the Montana State 

### Prison,

### with seven years suspended, 

### for two counts of burglary and one count of theft. On April 9, 1992, Robert filed a petition to establish paternity, custody, and visitation rights as LaToyansfather. Tom Romo and ConnieRomo, Robert'sparents, joined him inhis petition to obtain the right of visitation as LaToyalsgrandparents. After undergoing blood tests, the parties stipulated that Robert was the child's natural father. On November 20, 1992, the District Court appointed Pam Hodges of the Department of Family Servicesguardian ad litem for theminor child,and furtherordered that mental health evaluations and home studies be performed 

### on Tara Hickok, Connie Romo, TomRomo, and to the extent possible, on Robert Romo. The District Court held a hearing on June 7, 99 on the remaining issues of custody and visitation. The District Court's July 2, 1993, order granted sole custody of LaToya to her mother, which the Romos do not contest. The District 

### Court ordered that LaToya not be required to visit her father at the Montana State Prison, but granted him supervised visitation after his release. With regard to Tom and Connie, the District Court recognized their right tovisit their granddaughter,and in its order set forth the general parameters under which they could exercise that right. ISSUE 1 Did the District Court err when it found that visitation at the prison was not in the child's best interest? 3The standard of review for custody and visitation is whether substantial, credible evidence supports the district court's judgment. InreMam'ageofNash (l992), 254 Mont. 231, 234, 836 P.2d

The Romos argue that, before it could deny visitation with Robert at theprison, the District Courtwas required,on thebasis of 3 40-4-217(1), MCA, to find t'nat such visitation would endanger LaToya. That section provides as follows: A parent not granted custody of the child is entitledto reasonable visitationrightsunlessthecourt finds, after a hearing, that visitation would endanger seriously the child's physical, mental, moral, or emotional health. This Court recently stated in InreMarriageofReiningham (1991), 250 Mont. 86, 90, 817 P.2d 1159, 1161; cert.denied (1992), 112 S. ct. 1497, 117 

### L. Ed. 2d 637,that: Although 5 40-4-217(1), MCA, requires a showing of endangerment [before the district court can place a restriction on visitation], 

### we will not so narrowly interpret the statute so that the court is unable to design visitation that reflects the child's best interests. The Commissioners1Note to 5 40-4-217, MCA, states that with two important exceptions, the general rule to be applied 

### in awarding visitation is the "best interest of the child" standard. It is only when the court deprives the noncustodial parent of all visitation, or when a custodial parent tries to restrict or eliminate a noncustodial parent's visitation, that the judge musthold 

### a hearing and make 

### the extraordinary finding of 

### serious endangerment. On 

### July 2, 1993,

### when the District Court 

### made its findings, Robert's tentative release date from prison was September 1993. Consideringthebrief amount of time thisprovision of theDistrict Court order would have an effect, we do not find that Robert was deprived of visitation. Therefore, we will apply the "best interest1'standard. At the time of the hearing, LaToya was approximately twoand one-half years old, The distance from Wolf Point to Deer Lodge 

### is approximately 469 miles. Connie Romo testified that the trip to the Montana State Prison in Deer Lodge would involve a five-hour flight in a chartered plane piloted by Tom Romo. Tara testified that she felt the prison environment would confuse and scare 

### her young daughter. Based on the young age of the child, the long distance involved,theenvironment 

### inwhichvisitation would takeplace,and the short time necessary for postponement, we conclude that there

was substantial evidence to support the District Court's finding thatvisitation at theMontana State Prison was not in the child's best interest. Under the circumstances of this case, we hold that "reasonablevisitationtt does not preclude postponing the right of visitation until theparent is in aposition to exercise the right without interferingwith the child's best interest. In 

### soholding,we are not establishing ahard and fastrulewith regard toparents who are imprisonedunder other circumstances. ISSUE 2 Did the District Court abuse its discretion when it ordered that, after his release fromprison, the father's visitationwill be supervised by maternal relatives? The Romos argue that Robert's visitation should not be restricted. The proper standard to apply where the custodial parent seeksrestrictionof thenoncustodialparent's visitation 

### is the serious endangerment standard. Commissioners' Note 

### to 5 40-4-217,MCA. In applying this standard, the district court is vested with liberaldiscretion. 

### SeeReininghaus, 817 P.2d at 1161-62. In this case, there was substantial evidence in the record to support a finding of serious endangerment to the child's physical, mental, or moral well-being, includingRobert's extensiveprevious drug use and chemical dependency, his dishonesty and antisocial behavior, his suicide attempts, and threats of violence. We conclude that the District Court did not abuse its discretionwhen it required that Robert's visitation be supervised. However, the Romos argue that if supervision is necessary, that they should be allowed to supervise Robert's visitationwith LaToya. In the alternative, they argue that 

### 5 40-4-218, MCA, requires the Department of Family Services to conduct supervised visitation.The purpose behind 5 40-4-218, MCA, is to provide court intervention where the custodial parent has made a decision regarding the child sufficient to endanger the child's physical health or emotional development, as for example,when a custodial parent refuses to provide medical care for a sick child. See ~ommissioners'Note to 5 40-4-218, MCA. though supervised visitation 

### may be conducted by the Department of Family Services, 

### InreMam'ageof

### Hickey (1984), 213 Mont. 38, 689 P.2d 1222,visitation by a noncustodial parent may also be supervised by familymembers

or other persons. The primary consideration in the selectionof a person or persons to supervisevisitation shouldalwaysbe thebest interest of the child. Tara testified that she objected to supervision of Robert's visitation with his daughter by Tom Romo and Connie Romo because theyhad failed to controlRobert's behavior inthepast. Shealso testified that Robert had threatened to take LaToya from her and believed that his parents would be unable to prevent him from removing the child from their supervision. The guardian ad litem recommendedthatRobert's visitation be supervisedby his parents. However, the District Court found that [tlhe visitation recommendations made to the Court by Social Worker Pam Hodges are not based on competent and complete evidence. The visitation frequency and conditionsrecommendedby Social WorkerHodges arenot in the child's best interests.We conclude 

### that the ~istrict Court's findings

### with regard to supervised visitation are supported by substantial evidence. We also conclude that 

### the manner in which the District Court ordered that visitation be supervisedwas not an abuse of discretion. ISSUE 3 Did the District Court err when it did not set a visitation schedule for the father after his release from prison, but merely provided that visitation would be permitted? The Romos cite Saizderso~z 

### v. Sanderson (1981), 191 Mont. 316, 623

P.2d 1388, to support their argument that it was an abuse of discretion not to set a specific visitation schedule. There, at the time the court awarded "reasonablevisitationg1 to the father, the parties lived in the same city. Later, the mother moved 600 miles away, which effectively restricted the father'svisitation. We did not find that the District Court abused its discretion,

### we merely remanded with directions that the District Court specify a reasonable schedule forvisitation. Sanderson, 623 P.2d at 1389. Moreover, we have previously held that failure to order a specific visitation 

### schedule does 

### not constitute 

### an abuse 

### of discretionwhere there is no need for specificitydemonstrated and the record indicatesawillingness to allowvisitation. Inre

### Mamhge ofMeyer (19831, 204 Mont. 177, 182-83, 663 P.2d 328, 331. There is nothing in the record to suggest that the parties 

### in this case will be unable to work out a reasonable visitationschedule. The father's imprisonment at the time of the District Court's order, and the uncertainty with regard to his release, presented unique circumstances rendering a specific visitation schedule premature. We interpret the District Court order 

### to provide for reasonable visitation, and we conclude that the District Court did not abuse its discretion when it granted reasonable visitation to Robert without further definition. We note,however, that shouldvisitation becomeunworkablebetween the parties, the District Court may be required to devise a schedule. 

### InreMarriageofDimberger (1989),237 Mont. 398, 773 P.2d 330;

### Sanderson,

ISSUE 4 Does the District Court order err by giving the mother absolute control over visitation by the paternal grandparents? The order of the District Court states: While the child resides in Wolf Point, the grandparentsmay havevisitation: a) onceper week for a few hours each visit; b) for special occasions upon mutual agreement with the mother; and c) for "stop inn visits with her mother on holidays. When the mother andchildrelocate,thegrandparents may have a) afternoonvisits up to four times per month when the grandparents are able to travel to the place of residence; b) and holiday visits if prearranged and mutually agreed upon by the grandparents and child's mother.

The parties' mutual agreement to visitation upon noticeby thegrandparentsof their intent forvisitation shall be a condition for visitation.Further,Tarawas ordered to notify Ton and ~onnie of her trips to Wolf Point so that visitation could be arranged, and advised that more frequent and longer visits, including overnight stays,would bepermitted when the child is old enough to express her wishes to that effect. The Romos argue that the District Courttsorder allows the mother to have absolute control over their visitation and does not grant them an independent right to visitation based on the permissive language "may" that appears in the order. They also argue that the condition of mutual agreement preceding each visitation weakens their right. We interpret the references 

### to the condition of 

### mutual agreement to refer to times and places, not whether visitationmay
occur. As in any visitation situation, the success of this arrangement hinges on the cooperation of the parties. There is no evidence that cooperation has been withheld. When and if it is, the District Court is in the best position to make that determination and take the appropriate correctivemeasures. Finally, Tara asks that she be awarded her attorney fees incurred on appeal. We conclude that the appeal is not groundless and we have no other factual or legal basis for awarding attorney fees

# . The judgment of the District Court is affirmed.We concur:Justice John Conway Harrison, concurring inpart and dissenting in part.

I concur and dissent from themajority opinion, particularly with issue 2: whether the District Court abused its discretion when it ordered that, after his release from prison, the father's visitation with the child would be supervised by a maternal relative. The parents of the father, the Romos, argue his visitation should not be restricted. The record indicates that not only was the father a felon at the time of the hearing, but prior to that he had an unsavory record as a juvenile, includingnumerous incidents whichwould have been charged as felonies had he been older. The record also contains informationthat the fatherhad been confined at theMiles City institute for juveniles and had threatened the mother of his child aswell asherboyfriends. Inaddition, the record indicates the father has attempted suicide and has a history of violence. Since the hearing, the mother has moved some 600 miles away fromWolf Point,Montana, and isnow living in Pablo,Montana,with her mother and aunt. In objecting to the father's visitation in Pablo, it is quite understandable that the mother and aunt would notparticularly welcome the father intheir home while supervising him with the child. I would hold that the court did abuse its discretion when it required the father to have any visitation in Pablo. After reading the record, Iam troubled also that the father's andgrandparents1interest in the childwas not apparent until over

a year after the child was born. The record indicates that no presents were ever given to the child until after this action was 12commenced and no support was given to the mother who, it appears,

was either 15 or 16 when the child was born. While the record is devoid of any reference as to where the mother and child received their financial support, itmight well be that ithad to have come either from the mother's parents or from welfare. To me, the sudden interest in the child a year after her birth and after the fatherwas sent off to thepenitentiary raises some question as to whether the child's best interest is served until the father establishes a record of non-violence. Further, the record indicatesthata clinical psychologistwas hired to submit an evaluation of the appropriateness of the father's visitation with the child. Thepsychologist reported: "I

seenothing contraindicatory [sic]about his having visitation with his child, be it inprison or not. Indeed, visitation rightswould

seem like a positive thing at this point." The psychologist arrived at this conclusion after telephone conversations with the father while in prison, yet he had never seen the father nor the mother or the child--I find it unusual that this recommendation would hinge on mere telephone conversations. Finally, it is my view that if these visitations are to be carried out, I believe the mother's wishes and her situation--600 miles away from where most of this has occurred--be given more study. A period of time should pass allowing the child to grow before set periods of visitation by the father are allowed.