IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 31423

CHRISTOPHER F. F. HOPPER,

 Plaintiff-Appellant,

v.

SUZANNE HOPPER,

 Defendant-Respondent.

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Boise, December 2006 Term

2007 Opinion No. 43

Filed: March 19, 2007

Stephen W. Kenyon, Clerk

Appeal from the District Court of the Fourth Judicial District of the State of

Idaho, Ada County. Honorable Russell A. Comstock, Magistrate Judge.

The decision of the district court is vacated and remanded.

Christopher F.F. Hopper, Boise, appellant pro se.

Kulchak & Associates, Boise, attorneys for respondent. J. Michael Kulchak

argued.

SCHROEDER, Chief Justice.

I.

FACT SUMMARY

Christopher Hopper (Chris) and Suzanne Hopper (Suzanne) were married in 1999 while

residing in Boise, Idaho, where they made their marital home. Their only son, Caidan, was born

in January 2003. In March 2003, unknown to Chris, Suzanne contacted her mother in

Stevensville, Montana, about coming to live with her. Arrangements were made during the

ensuing months, and on June 17, 2003, Suzanne took Caidan and secretly left for Montana.

Caidan was five months old at the time.

Suzanne obtained a domestic violence protection order against Chris in Ravalli County,

Montana, and later filed a petition for divorce in Missoula County, Montana. The claim of

domestic violence was subsequently determined to be false. Chris discovered Suzanne’s

whereabouts when he was served with the ex parte temporary protection order, and shortly
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thereafter he filed for divorce in Ada County, Idaho. The Montana actions were consolidated

and eventually dismissed on August 14, 2003 in deference to Idaho’s jurisdiction over the matter.

Chris immediately filed a motion for temporary custody which was heard at the end of

September. On October 2, 2003, the magistrate issued an order awarding temporary custody of

Caidan to Suzanne. Chris had no contact with Caidan from the time Suzanne left in June until

the commencement of court-ordered visitation in October. The combined result of Suzanne

leaving the state and filing the actions in Montana was to cut off the relationship between Chris

and Caidan for over three months. The magistrate judge stated that the arrangement did not

satisfy “the court’s sense of justice” as between the parties but concluded that Caidan’s interests

would best be served by remaining in Suzanne’s custody during the pendency of the case, subject

to substantial visitation by Chris. The magistrate declined to award Suzanne financial support,

noting that her decision to move to Montana had increased both parties’ expenses and stating that

support would be entered in the event she returned to Idaho.

The magistrate judge appointed Dr. Mack Stephenson, Ph.D., a licensed psychologist, to

conduct a parenting evaluation to assist in making a final custody determination. Dr.

Stephenson’s report recommended that the parties share joint legal custody of Caidan, with

Suzanne having primary physical custody and Chris receiving frequent visitation. Dr.

Stephenson based his conclusion on the finding that Suzanne had historically been the primary

parent and the one with whom Caidan had spent more time, noting that children of that age need

stability and consistency, including a stable relationship with a primary caregiver.

The parties stipulated to a divorce and agreed upon a division of their community

property and debts. The custody issue was tried before the court on April 13, 2004, and on

June 2, 2004 the trial court issued its Findings of Fact, Conclusions of Law and Order granting

sole legal and physical custody to Suzanne subject to visitation by Chris. The trial court stated

that its custody determination was not intended to punish either party but was the best result for

Caidan. The trial court reaffirmed and expanded its earlier findings made in connection with the

order for temporary custody renewing its inference that the parties had tacitly agreed Suzanne

would be the primary caregiver. The trial court found joint physical custody to be impractical

because of the distance between the parties and also inadvisable due to Caidan’s need for

stability. The trial court also rejected joint legal custody because of the inability of the parties to

reach consensus and follow through on agreements without court involvement. The trial court
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altered the visitation schedule recommended by Dr. Stephenson in order to reduce the amount of

travel Caidan would have, with the consequence that Chris was required to make frequent trips to

Montana in order to exercise his visitation. Rather than require Suzanne to reimburse a portion

of the travel expenses, the trial court withheld an award of child support, finding that the cost of

travel occasioned by Suzanne’s move far exceeded the amount of child support that would

otherwise be due.

Counsel for Chris was granted leave to withdraw, and Chris, who is an attorney, has

represented himself. He immediately moved to reopen discovery and depose Dr. Stephenson.

While that motion was pending, the trial court entered an Order for Custody and Child Support

and Award of Costs as a Matter of Right on August 3, 2004. Chris also filed a Motion to

Reconsider, Motion for New Trial, Motion to Amend and to Make Additional Findings of Fact

and Conclusions of Law, Motion to Augment Record with Montana Documents, and Motion for

Permission to Direct Appeal the Idaho Supreme Court. He moved for a stay pending resolution

of the post trial motions and appeal and requested an award of attorney fees relating to the

Montana actions. The magistrate judge allowed the documents from the Montana proceedings to

be included in the record, but denied the remainder of the motions. This Court granted leave for

Chris to appeal directly to the Supreme Court.

Chris contends the trial court abused its discretion by awarding custody to Suzanne even

though she had secretly removed Caidan from the state and deprived him of any contact with

Chris for over three months. He argues that the custody arrangement ignores statutory standards,

violates public policy, and deprives him of meaningful visitation. He also argues that the trial

court impermissibly relied on factors related to his religion and that certain factual findings were

clearly erroneous.

II.

STANDARD OF REVIEW

Child custody determinations involving minor children are left to the sound discretion of

the trial court, and will not be overturned on appeal absent an abuse of discretion. Hoskinson v.

Hoskinson, 139 Idaho 448, 454, 80 P.3d 1049, 1055 (2003); Roberts v. Roberts, 138 Idaho 401,

403, 64 P.3d 327, 329 (2003). In reviewing such decisions, the relevant inquiry is whether the

trial court (1) correctly perceived the issue as one of discretion; (2) acted within the outer

boundaries of its discretion and consistently with the legal standards applicable to the choices

before it; and (3) reached its decision by an exercise of reason. Hoskinson, supra; Roberts,
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supra. It is the province of the trier of fact to weigh conflicting evidence and testimony and to

judge the credibility of witnesses. The trial court’s findings of fact in a court tried case will be

upheld if they are supported by substantial and competent evidence, even if the evidence is

conflicting, and will be liberally construed in favor of the judgment entered. State v. Hart, 142

Idaho 721, 723, 132 P.3d 1249, 1251 (2006) (quoting Roell v. Boise City, 134 Idaho 214, 216,

999 P.2d 251, 253 (2000)). With respect to questions of law, however, this Court exercises free

review to determine whether the law was properly construed and applied. Id.

III.

TIMELINESS OF APPEAL

Suzanne argues that Chris’ appeal is untimely and should be dismissed. Subsequent to

the grant of permissive appeal Suzanne moved to dismiss the appeal as untimely. The Court

denied the motion and will not revisit the issue.

IV.

THE TRIAL COURT ERRED IN DETERMINING CHILD CUSTODY

Idaho Code § 32-717B(4) provides as follows: “Except as provided in subsection (5), of

this section, absent a preponderance of the evidence to the contrary, there shall be a presumption

that joint custody is in the best interests of a minor child or children.” That presumption can be

overcome if a parent is found by the court to be a habitual perpetrator of domestic violence.

I.C. § 32-717B(5). That condition does not exist in this case. Idaho Code § 32-1007 provides

the following:

The father and mother of a legitimate unmarried minor child are equally entitled

to its custody, services and earnings. If either the father or mother be dead or be

unable or refuse to take the custody or has abandoned his or her family, the other

is entitled to the child’s custody, services and earnings.

None of the conditions that would cause a loss of equal custody rights defined in I.C. § 32-1007

exists is this case.

In this case the custodial rights of the father were compromised by the criminal act of the

mother in taking the child from Idaho and the misconduct of the mother in making a false

domestic violence claim. Idaho Code § 18-4506.1. provides the following:

A person commits child custody interference if the person, whether a parent or

other, or agent of that person, intentionally and without lawful authority:

(a) Takes, entices away, keeps or withholds any minor child from a parent or

another person or institution having custody, joint custody, visitation or other
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parental rights, whether such rights arise from temporary or permanent custody

order, or from the equal custodial rights of each parent in the absence of a custody

order . . . .

None of the defenses to that statute have been shown to exist in this case.

In making child custody determinations, “a child’s welfare and best interests are of

paramount importance.” Hoskinson, 139 Idaho at 455, 80 P.3d at 1056. Idaho Code § 32-717(1)

directs the trial court, in determining what custody arrangement will be the child’s best interests,

to consider all relevant factors including the following list which is not exhaustive: (1) the

parents’ wishes; (2) the child’s wishes; (3) the child’s relationship with the parents and siblings;

(4) the child’s adjustment to the home, school and community; (5) the character and

circumstance of the individuals involved; (6) the need for continuity and stability in the child’s

life; and (7) domestic violence. In addition to those factors listed, it is presumed in our law that a

continuing relationship with both parents is in a child’s best interest. Idaho Code §§ 32-717B(4),

32-1007 and 18-4506. That is a fundamental principle that must be considered.

In this case the father’s equal rights were prejudiced by the mother absconding with the

child in violation of I.C. § 18-4506 and obtaining an unfounded domestic violence order in

Montana restricting the father’s ability to maintain a relationship with his child. Glossing over

these facts and going to the end result that the mother has a greater relationship with the child

than the father creates an untenable condition. If permitted to stand, the lesson from this case is

that the law may be disregarded, a crime committed, falsehoods told, and advantage gained from

the misconduct. The proceedings should not have been allowed to continue for the duration with

the mother holding the child out of state while gaining all of the evidentiary benefits of an

enhanced relationship with that child to the detriment of the father. The mother should have

been ordered to return the child to Idaho where the father might exercise his rights as an equal

parent and have this case decided with the underlying legal and social principle that it is the best

interests of a child to have a continuing relationship with both parents.

The error that initially occurred has been exacerbated by the lapse of time as these

proceedings have taken place. That is a misfortune that follows from the conduct of the mother

and the failure of remedial action at the earliest stage of this case. Continuing misfortunes will

accumulate if the advantage gained by the mother in this case is allowed to continue contrary to

the fundamental social and criminal law of the state. There is no perfect remediation for the
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problems in this case, but at a minimum a custody hearing must be held with the child in Idaho

where the father has an opportunity to have the contact with his child to which he is entitled and

the child receives the benefit recognized in our law that it is in the best interests of the child to

have a continuing relationship with both parents.

V.

CONCLUSION

The order of the trial court is vacated. The case is remanded for proceedings which

require the mother to return the child to Idaho.

Justices EISMANN, BURDICK and JONES CONCUR.

Justice TROUT, Dissenting.

“[T]he awarding of custody of minor children rests within the discretion of the trial court

whose decision will not be overturned on appeal absent an abuse of discretion.” Roberts v.

Roberts, 138 Idaho 401, 403, 64 P.3d 327, 329 (2003). The magistrate judge in this case

recognized the paramount importance of the child’s best interests and arrived at his decision

through an exercise of reason; therefore, I respectfully dissent from the Court’s opinion.

While I do not condone the mother’s actions in moving to Montana without notice to the

father, I believe the record and transcript reflect the magistrate judge carefully considered the

mother’s wrongdoing in arriving at his ultimate determination. He stated during a hearing that

he disapproved of the mother’s behavior, but he felt the child’s interests would best be served by

remaining with his primary caretaker – his mother. In fact, the judge noted in his decision

awarding permanent custody to the mother that “if the character of all individuals involved was

the only factor for the court to consider, it is likely that the court would award primary custody

of Caiden to Chris.”

Further, the magistrate judge acknowledged the legal presumption that joint custody was

in the child’s best interests and emphasized the love both parents have for the child; however, the

court also recognized the geographical distance between the parents and the resulting

impracticality of a joint-custody arrangement. Perhaps most importantly, the court considered

Dr. Stephenson’s recommendation that it was in the best interests of the child to remain with his

mother. In arriving at his determination, Dr. Stephenson noted the child’s need for a continuous

and predictable schedule as well as the difficulty a child at Caidan’s age would have in adapting

to structural changes in his care. Caiden, who is now four years old, has been primarily in the
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custody of his mother in Montana for nearly four years. The mother’s family lives in Montana,

and she has no connections to Idaho other than the father. I agree with the Court that there is “no

perfect remediation” for the problems in this case; however, the effect of the Court’s opinion is

that the child and his mother will be uprooted and forced to return to Idaho to re-litigate this

matter. While this may be a just result between the mother and father, it is clearly not in the best

interests of the child. This does not mean that a parent’s misconduct or character should not be

considered in a court’s determination of what would be in the child’s best interests. Indeed, such

poor behavior in other child custody cases may indicate it is not in the child’s best interests to

remain with the misbehaving parent. This is a matter of discretion. The magistrate judge, after

careful consideration of the facts in this case, decided the mother’s character was “not the

weightiest factor in making a custody decision for a 15-month old,” recognizing that as the child

grew and developed, that may change. Those are precisely the types of difficult decisions we ask

trial judges to make, and we should abide by those decisions when they are supported by

substantial and competent evidence. I respectfully dissent from the Court’s opinion and would

affirm the decision of the magistrate judge.