No. 34-11 INTHE SUPREME COURT OF THE STATE OF MONTANA 1384

INRE THE MARRIAGE OF DEANNE PARADIS, Appellant, and JOHN E. PARADIS, Respondent.

Appeal from: District Court of the FirstJudicial 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: -.-

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# .- - Clerkr.Chief Justice Frank I. Haswell delivered the Opinion of the Court. This is an appealby the mother of a seven-year-old boy from an order modifying a joint cust0d.ydecree. 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 decreeprovided for joint legal and physical custody: whileyoung,Matthewwas to spend sixmonths of theyearwith each parent; upon entering school.,Matthew was to spend the sch.001year with Deanneand the summerwith 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 DistrictCourt 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 notbe in hisbest interests, the tria.1courtmodified 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.llowedMatthew to be integrated intoboth parents' families. This issue controlsour decisionon appea.1. Section 40-4-219,MCA,provides: "Modification. (1) The courtmay in its discretion modify a prior custody decree if it finds,upon thebasis of facts that have arisen since the prior decree or that were unknown to the court 

### at 

### the time of entry of theprior decree, that achange 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 thepetitioner with consent of the custodian; 

### "(c) the child's present environment endangers seriouslyhis 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 DivorceAct. Although the Act does not specifically preclude joint custody, its provisions address only the traditional solution of sole custody in oneparent with the other having a right to visitation. See, sections 40-4-211 through -221, MCA (consistently referring to the custodianor custodial parent and the noncustodialparent)

# . 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 custodymay 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 seeksto terminate the other's riqht to legal as well as physical custody. It has no application to a dispute over the times

or terms ofphysical 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 thehome of the noncustodia1 parent. In reMarriage of Eolton (Mont. 1984)

## , P.2d



### --- 41 St.Rep. 1698. In contrast, a joint custody decree requires that "the residency of the child shallbe 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 twohomes. Ithas, 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~gingthe 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 stepparentsto be very finepeople 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 apparentlybased its decision to modify custody on the fact that the move would require a change of schools. "A parent entitled to custodyof 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. Deannewas 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), 334N.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 isvaca.tedand the original order reinstated. 

# %&%&dL Chief Justlce

We concur: