NO. 93-440 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

ROBERT ALLEN ROMO, CONNIE ROMO, 

and TOM ROMO, 

Petitioners and 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 Honorable M. James Sorte, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Mary L. Zemyan, Attorney at Law, 

Wolf Point, Montana 

For Respondents: 

Carol C. Johns, Attorney at Law, 

Wolf Point, Montana (for Tara Dawn Hickok) 

Laura Christoffersen, Attorney at Law, 

Wolf Point, Montana (for Patricia Hickok) 

Filed: 

Submitted on Briefs: February 24, 1994 

Decided: March 28, 1994 
Justice 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 

that portion of the District Court order awarding visitation to the 

grandparents and awarding supervised visitation tothe father after 

his release from the Montana State Prison. We affirm the District 

Court. 

The following issues are presented for our review: 

1. Did the District Court err when it found that visitation 

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 from prison, 

but merely provided that visitation would be permitted? 

4. Did the ~istrict Court err by 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, Robert was sentenced to ten years 

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at 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 LaToyans father. Tom 

Romo and Connie Romo, Robert's parents, joined him in his petition 

to obtain the right of visitation as LaToyals grandparents. 

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 

Services guardian ad litem for the minor child, and further ordered 

that mental health evaluations and home studies be performed on 

Tara Hickok, Connie Romo, Tom Romo, 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 to visit 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? 

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The standard of review for custody and visitation is whether 

substantial, credible evidence supports the district court's 

judgment. In re Mam'age of Nash (l992), 254 Mont. 231, 234, 836 P.2d 

The Romos argue that, before it could deny visitation with 

Robert at the prison, the District Court was required, on the basis 

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 

entitled to reasonable visitation rights unlessthe court 

finds, after a hearing, that visitation would endanger 

seriously the child's physical, mental, moral, or 

emotional health. 

This Court recently stated in In re Marriage of Reiningham (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 Commissioners1 Note 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 must 
hold 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. 

Considering the brief amount of time this provision of the District 

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 two and 

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, the environment in which visitation would take place, and 

the short time necessary for postponement, we conclude that there 

was substantial evidence to support the District Court's finding 

that visitation at the Montana State Prison was not in the child's 

best interest. Under the circumstances of this case, we hold that 

"reasonable visitationtt does not preclude postponing the right of 

visitation until the parent is in a position to exercise the right 

without interfering with the child's best interest. In so holding, 
we are not establishing a hard and fast rule with regard to parents 

who are imprisoned under other circumstances. 

ISSUE 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? 

The Romos argue that Robert's visitation should not be 

restricted. The proper standard to apply where the custodial 

parent seeks restriction of the noncustodial parent'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 liberal discretion. See Reininghaus, 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, including Robert's extensive previous 

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 discretion when 

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 visitation with 

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, 

In re Mam'age of Hickey (1984), 213 Mont. 38, 689 P.2d 1222, visitation 

by a noncustodial parent may also be supervised by family members 

or other persons. The primary consideration in the selection of a 

person or persons to supervise visitation should always be the best 

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 

they had failed to control Robert's behavior in the past. She also 

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 recommended that Robert's visitation be 

supervised by 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 

conditions recommended by Social Worker Hodges are not 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 supervised was 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 "reasonable visitationg1 to the father, 

the parties lived in the same city. Later, the mother moved 600 

miles away, which effectively restricted the father's visitation. 

We did not find that the District Court abused its discretion, we 

merely remanded with directions that the District Court specify a 

reasonable schedule for visitation. 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 

discretion where there is no need for specificity demonstrated and 

the record indicates a willingness to allow visitation. In re 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 visitation 
schedule. 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 should visitation become unworkable between 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 

grandparents may have visitation: a) once per 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 and child relocate, the grandparents 

may have a) afternoon visits 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 

notice by the grandparents of their intent for visitation 

shall be a condition for visitation. 
Further, Tara was 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 

be permitted when the child is old enough to express her wishes to 

that effect. 

The Romos argue that the District Courtts order 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 visitation may 

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 corrective measures. 

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 in part and dissenting in 

part. 

I concur and dissent from the majority 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, including numerous incidents which would have 

been charged as felonies had he been older. The record also 

contains information that the father had been confined at the Miles 

City institute for juveniles and had threatened the mother of his 

child as well as her boyfriends. In addition, 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 

from Wolf Point, Montana, and is now 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 

not particularly welcome the father in their 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, I am troubled also that the father's 

and grandparents1 interest in the child was 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 

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commenced 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, it might well be that it had 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 

father was sent off to the penitentiary 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 indicates that a clinical psychologist was 

hired to submit an evaluation of the appropriateness of the 

father's visitation with the child. The psychologist reported: "I 

see nothing contraindicatory [sic] about his having visitation with 

his child, be it in prison or not. Indeed, visitation rights would 

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.