No. 34-11 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1384 

IN RE THE MARRIAGE OF 

DEANNE PARADIS, 

Appellant, 

and 

JOHN E. PARADIS, 

Respondent. 

Appeal from: District Court of the First Judicial District 

In and for the County of Lewis and Clark 

Honorable Henry Loble, Judge presiding. 

Counsel of Record: 

For Appellant: 

John P. Poston, 

Harrison, Loendorf & Poston, Helena, Montana 

For Respondent : 

Ann L. Smoyer, 

Petaja & Smoyer, Helena, Montana 

For Matthew J. Paradis: 

John L. Hollow, IIelena, Montana 

Submitted: May 24, 1984 

Decided: I'Jovember 1, 1984 

Filed: -.- 

- .- - 

Clerk 
r. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

This is an appeal by the mother of a seven-year-old boy 

from an order modifying a joint cust0d.y decree. We reverse 

and reinstate the original order. 

Deanne and John Paradis were married in 1973. Their 

only child, Matthew, was born in 1977. They divorced in 

1980. The couple's settlement agreement and the District 

Court's decree provided for joint legal and physical custody: 

while young, Matthew was to spend six months of the year with 

each parent; upon entering school., Matthew was to spend the 

sch.001 year with Deanne and the summer with John. 

Both John and Deanne have remarried. Several months 

after Deanne and her new husband moved to Hawaii and shortly 

after his own remarriage, John petitioned the District Court 

of Lewis and Clark County for a modification of custody. 

Finding that Matthew was "integrated" into John's household 

and that a move to Hawaii would not be in his best interests, 

the tria.1 court modified the decree and awarded John custody 

during the school year and Deanne custody during the summer. 

Deanne appeals. She is supported, on appeal, by Matthew's 

court-appointed counsel. 

Appellant end counsel challenge the trial court's 

application of the section 40-4-219 (1) (b) , MCA, integration 

standard to a joint custody decree that has successfully 

a.llowed Matthew to be integrated into both parents' families. 

This issue controls our decision on appea.1. 

Section 40-4-219, MCA, provides: 

"Modification. (1) The court may in its 

discretion modify a prior custody decree 

if it finds, upon the basis of facts that 

have arisen since the prior decree or 

that were unknown to the court at the 

time of entry of the prior decree, that a 
change has occurred in the circumstances 

of the child or his custodian and that 

the modification is necessary to serve 

the best interest of the child and if it 

further finds that: 

"(a) the custodian agrees to the 

modification; 

" (b) the child has been integrated into 

the family of the petitioner with consent 

of the custodian; 

" (c) the child's present environment 

endangers seriously his physical, mental, 

moral, or emotional health and the harm 

likely to be caused by a change of environment is outweighed by its advantages 

to him; or 

"(d) the child is 14 years of age or 

older and. desires the modification. " 

The section, like most of our child custody statutes, 

is taken from the Uniform Marriage and Divorce Act. Although 

the Act does not specifically preclude joint custody, its 

provisions address only the traditional solution of sole 

custody in one parent with the other having a right to visitation. See, sections 40-4-211 through -221, MCA (consistently referring to the custodian or custodial parent and the 

noncustodial parent) . Montana's three joint custody provisions present a 

separate and distinct approach to custody. Their express 

purpose is to assure a minor child frequent and continuing 

contact with both parents and to encourage both parents to 

share the rights and responsibilities of child rearing. 

Section 40-4-222, MCA. The joint custody statute governing 

modification, section 40-4-224 (3), MCA, provides tha.t: "Any 

order for joint custody may be modified pursuant to 40-4-219 

- to terminate the joint custody." (Emphasis supplied.) 

Section 40-4-219 and, thus, the subsection (1) (b) integration 

standard may be applied. only where one joint custodian seeks 
to terminate the other's riqht to legal as well as physical 

custody. It has no application to a dispute over the times 

or terms of physical custody. 

The integration standard of subsection (1) (b) of section 40-4-219 is intended to provide a child with continuity 

and stability where a sole custodian under the Uniform Act 

has freely relinquished his or her right to physical custody 

so frequently or for so prolonged a period that the child has 

become settled and established in the home of the noncustodia1 parent. In re Marriage of Eolton (Mont. 1984) , P.2d 

--- 41 St.Rep. 1698. In contrast, a joint custody decree 

requires that "the residency of the child shall be sharec? by 

the ??rents. 'I Section 40-4-224 (2) , MCA. The 1-egislatu-re has 

clearly expressed its intention that a joint custody decree 

result in the child being integrated into two homes. It has, 

just as clearly, expressed its intention that this dual 

integration not be used as grounds for modification of the 

terms of a joint custody decree. Section 40-4-224(3), MCA. 

In addition to challe~ging the trial court's application of section 40-4-219, MCA, to a modification of joint 

custody, appellant questions the sufficiency of the evidence 

to support the court's finding that the move to Hawaii would 

not be in Matthew's best interests. The court found both 

parents and both stepparents to be very fine people eminently 

qualified to be entrusted with Matthew's care. It found that 

the move would seriously endanger Matthew's mental and emotional health hut that not being allowed to live with his 

mother in Hawaii would also seriously endanger 14atthew1s 

mental and emotional- health. The court apparently based its 

decision to modify custody on the fact that the move would 

require a change of schools. "A parent entitled to custody 
of a child has a right to change his residence, subject to 

the power of the court to restrain a removal which would 

prejudice the rights or welfare of the child." Section 

40-6-231, MCA. Deanne was entitled to custody for the school 

year. There are no facts to support a finding of prejudice. 

We have already disapproved the use of the concept of parens 

patriae to favor the institutions of our own state over those 

of another. In re the Marriage of Markegard (Elont. 1980), 

616 P.2d 323, 37 St.Rep. 1539. Deanne was presumpti.vely 

entitled to move with Matthew and to settle in a new home. 

Auge v. Auge (Minn. 1983), 334 N.W.2d 333; see a.lso, Shapiro 

v. Thompson (1969), 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 

600; In re the Marriage of Winn (Mont. 1980), 618 P.2d 870, 

37 St.Rep. 1734. 

The order of the trial court is vaca.ted and the original order reinstated. 

%&%&dChief Justlce 

We concur: