IN THE SUPREME COURT, STATE OF WYOMING

2016 WY 45

APRIL TERM, A.D. 2016

April 19, 2016

JR,

Appellant

(Respondent),

v.

TLW,

Appellee

(Petitioner).

S-15-0215

Appeal from the District Court of Teton County

The Honorable Timothy C. Day, Judge

Representing Appellant:

Melissa M. Owens of Owens Law Office, PC, Jackson, WY and Heather Noble, 

Jackson, WY.

Representing Appellee:

Leah K. Corrigan of Western Wyoming Law, LLC, Jackson, WY.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. 

Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, 

Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be 

made before final publication in the permanent volume.
1

HILL, Justice.

[¶1] Appellant (Mother) challenges a district court’s order awarding Appellee (Father)

primary custody of the parties’ children. We will affirm the district court.

ISSUE

[¶2] Mother presents one issue, with three subsections, for our review:

1. The district court abused its discretion in awarding 

custody to Father.

a. The district court erred in failing to consider – but 

apparently overruling the minor children’s

preference – particularly as the district court did 

not have sufficient basis for assessing how much 

weight to give that preference.

b. The district court had an insufficient basis for 

deviating from the recommendation of the 

Guardian Ad Litem.

c. The district court had an insufficient basis for 

granting residential custody to Father after the 

minor children had been living in Mother’s 

temporary custody in Bozeman for eighteen 

months.

FACTS

[¶3] Mother and Father were never married but they dated and were living together

when their two children were born in 2004 and 2006. Their relationship ended in 2008, 

but for the most part they shared custody of their children.

[¶4] This matter began in September of 2013, when Father filed a petition to establish 

paternity, custody, visitation, and support, after he learned that Mother planned to move 

from Jackson, Wyoming to Bozeman, Montana with the children. A temporary custody 

hearing was held on November 1, 2013, after which the court awarded the parties joint 

legal custody with temporary residential custody being awarded to Mother. Accordingly, 

Mother and the two children moved to Bozeman in December of 2013, and Father 

remained in Jackson.
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[¶5] Almost one year later, in October of 2014, the court held a bench trial to determine

custody. The children did not testify and were not interviewed. The court heard 

testimony from both parties. Testimony also included that from a Guardian Ad Litem 

(GAL). Ultimately, the GAL recommended that Mother have primary custody. Despite 

that recommendation, the court awarded Father primary residential custody, subject to 

Mother’s visitation.

STANDARD OF REVIEW

[¶6] This Court reviews district court decisions affecting child custody and visitation 

for an abuse of discretion. Demers v. Nicks, 2016 WY 13, 366 P.3d 977 (Wyo. 2016). 

About custody matters we have further said:

It has been our consistent principle that in custody matters, 

the welfare and needs of the children are to be given 

paramount consideration. The determination of the best 

interests of the child is a question for the trier of fact. We do 

not overturn the decision of the trial court unless we are 

persuaded of an abuse of discretion or the presence of a 

violation of some legal principle.

A court does not abuse its discretion unless it acts in a manner 

which exceeds the bounds of reason under the circumstances. 

Our review entails evaluation of the sufficiency of the 

evidence to support the district court’s decision, and we 

afford the prevailing party every favorable inference while 

omitting any consideration of evidence presented by the 

unsuccessful party. Findings of fact not supported by the 

evidence, contrary to the evidence, or against the great weight 

of the evidence cannot be sustained. Similarly, an abuse of 

discretion is present when a material factor deserving 

significant weight is ignored.

IC v. DW, 2015 WY 135, ¶ 7, 360 P.3d 999, 1001 (Wyo. 2015) (quoting Stevens v. 

Stevens, 2014 WY 23, ¶ 8, 318 P.3d 802, 805-06 (Wyo. 2014)).

DISCUSSION

[¶7] In Mother’s only issue she argues that the district court abused its discretion when 

it awarded Father primary residential custody. Mother more specifically argues that the 

court did not consider the children’s preferences, that the court did not have a sufficient

basis for its deviation from the GAL’s recommendation, and that the court lacked a basis 
3

for granting custody to Father after the children had lived with Mother in Bozeman for 18 

months.

[¶8] The district court detailed its reasoning for granting Father primary custody in a 

25-page order. Part of its reasoning reads as follows:

39. The testimony in this case, particularly Mother’s own 

testimony, causes the Court serious concerns about the 

destructive effect of Mother’s attitudes towards Father and his 

parenting. Her communication of those attitudes to the 

children, however true they may seem to be in her mind, has a 

deleterious effect upon the children and their resulting 

relationship with their Father. These attitudes and comments 

reflect negatively on Mother’s judgment as to what is in the 

best interests of the children. The Court directs the parties to 

the “Golden Rule” described by Ms. Bjelland and to the 

parenting covenants described elsewhere in this Order –

disparaging a parent in the presence of children does not 

support the parent-child relationships or the co-parenting

relationship.

40. Based on the testimony and exhibits described in the 

preceding factor, the Court finds that Mother has difficulty 

not intruding on Father’s parenting. As noted above, Mother 

testified that her intrusion could, in her opinion, continue as 

she deemed necessary and that it was appropriate because, in 

her opinion, she has higher values than Father. Testimony 

and exhibits admitted at trial also show that Mother has been 

critical of Father’s ability to substitute as a homeschool 

instructor when the children are in his care. Mother explained 

in her testimony that she could have been more diplomatic 

and constructive in her comments regarding Father’s 

homeschool instruction of the children. While she admitted 

she could have been more diplomatic, there was no indication 

that type of communication would end. Rather, as noted 

above, Mother testified that in her opinion her behavior is 

justified because she has higher standards than Father.

41. Father asserts that Mother micro-manages his parenting 

and is intrusive. For example, though an email admitted as a 

trial exhibit, Mother criticized Father’s decision to show the 

children a “Pirates of the Caribbean” film (he would fastforward the movie during certain fight scenes). Mother 
4

testified at trial that in her opinion the film was inappropriate 

and simply should not have been viewed by the children. 

Father points to the exhibits regarding his homeschooling and 

correction of his lessons. Another exhibit was admitted in 

which Mother criticized Father’s use of bookmarks in books 

the children are reading. Mother testified that she is harsh in 

her communications to Father but that it is necessary or 

Father will not listen to her.

42. Religious differences are an issue between the parents. 

Mother is a Christian whose beliefs are strong. In testimony 

during trial, witness DB explained that during their dating 

relationship, Mother was accepting of his separate faith and

belief system that was different than hers and that Mother 

never criticized his or anyone else’s religion. However, he 

also explained that one basis for their break up was that he 

wanted his children to explore their own spirituality. He did 

not feel that exploration could occur if he stayed with Mother 

because of her strong Christian faith.

43. ...The children’s counselor in Jackson testified that, in 

her opinion as a counselor, the children would repeat 

statements about religion that did not seem to be authentically 

the children’s own. She based her opinion in part on 

statements made by the children that appeared to be 

“parroting” negative adult statements about the Jewish 

religion or favoring the Christian religion, in addition to the 

children’s statements about family finances and marital 

relationships.

44. In citing examples of Mother’s strongly held values, as 

well as her deeply held opinions about Father’s parenting, the 

Court’s intent is not to challenge those fundamental values, or 

even challenge Mother’s opinions about Father. Rather, the 

issue is highlighted because while those values and opinions 

may motivate Mother’s inappropriate and negative 

communication to the children regarding Father, the effect is 

to diminish Father in the children’s eyes and harm the parentchild relationship. The Court does not believe expert 

testimony is necessary to conclude a certain degree of 

parental alienation is inevitable in the dynamic at play here.

. . . .
5

59. This decision by the Court has not been easy. Indeed, 

both parents in this case are on positive sides of the ledger 

with respect to most of the factors considered. Both parents 

are good parents. The parents are not good co parents, and 

Mother has particular difficulty in performing a healthy co 

parent role. The Court has repeatedly reviewed and 

considered evidence and testimony in relation to each factor. 

The Court finds that on balance and after much deliberation, 

the statutory factors weigh in favor of Father for primary 

residential custody. [Underline in original.]

60. Mother’s apparent attitude of superiority vis-à-vis Father, 

her negative attitude toward Father that she openly 

communicates to the children, her inability to allow Father to 

parent without her invasion, and her difficulty in respecting 

and supporting his role as Father to the children, causes the 

Court serious concern. Mother gave the Court no reason to 

believe these behaviors are likely to change. These behaviors 

are not in the children’s best interest.

61. The children’s needs are well served by implementing a 

custodial situation that optimizes the likelihood that love and 

respect for each parent is encouraged and supported. That 

can more readily occur if Father is the primary custodian. 

Father’s more open co-parenting style and less judgmental 

attitudes with respect to Mother creates an environment that is 

likely to foster a more positive co-parenting relationship and a 

better overall relationship between the children and each 

parent. This best serves the welfare of the children and 

should help strike a more reasonable balance of the rights and 

affections of each of the parents.

[¶9] Wyo. Stat. Ann. § 20-2-201(a) (LexisNexis 2013) lists ten statutory factors that a 

district court must consider when determining the best interests of the children in a 

custody case. Those factors are:

(i) The quality of the relationship each child has with 

each parent;

(ii) The ability of each parent to provide adequate care 

for each child throughout each period of responsibility, 

including arranging for each child’s care by others as needed;

(iii) The relative competency and fitness of each 
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parent;

(iv) Each parent’s willingness to accept all 

responsibilities of parenting, including a willingness to accept 

care for each child at specified times and to relinquish care to 

the other parent at specified times;

(v) How the parents and each child can best maintain 

and strengthen a relationship with each other;

(vi) How the parents and each child interact and 

communicate with each other and how such interaction and 

communication may be improved;

(vii) The ability and willingness of each parent to 

allow the other to provide care without intrusion, respect the 

other parent’s rights and responsibilities, including the right 

to privacy;

(viii) Geographic distance between the parents’

residences;

(ix) The current physical and mental ability of each 

parent to care for each child;

(x) Any other factors the court deems necessary and

relevant.

[¶10] In this case, the court decided that seven of the above factors were neutral in that 

they favored neither parent. However, the remaining three factors favored Father in the 

court’s opinion. According to the district court, those factors weighing conclusively in 

Father’s favor were:

(v) How the parents and each child can best maintain 

and strengthen a relationship with each other;

(vi) How the parents and each child interact and 

communicate with each other and how such interaction and 

communication may be improved;

(vii) the ability and willingness of each parent to 

allow the other to provide care without intrusion, respect the 

other parent’s rights and responsibilities, including the right 

to privacy[.]

We said in Blakely v. Blakely, 2009 WY 127, ¶ 11, 218 P.3d 253, 256 (Wyo. 2009), that 

“no single factor is determinative. ... In fact, depending on the case, different factors 

will present a greater need for emphasis.” Regarding custody determinations, we have 

also said:

“The law affords wide discretion to the district court when 

fashioning custody and visitation provisions for the best 
7

interests of the children.” Pace [v. Pace], [2001 WY 43,] 

¶ 11, 22 P.3d [861,] 865 [(Wyo.2001)] (quoting Reavis [v. 

Reavis], 955 P.2d [428,] 431 [(Wyo.1998)]). Such discretion 

“encompasses one of the most difficult and demanding tasks 

assigned to a trial judge.” Reavis, 955 P.2d at 431. 

“Ultimately, the ‘goal to be achieved is a reasonable balance 

of the rights and affections of each of the parents with 

paramount consideration being given to the welfare and needs 

of the children.’” Pace, ¶ 11, 22 P.3d at 865 (quoting Leitner

[v. Lonabaugh], 402 P.2d [713,] 720 [(Wyo.1965)]).

Dahlke v. Dahlke, 2015 WY 76, ¶ 14, 351 P.3d 937, 941 (Wyo. 2015) (quoting Zupan v. 

Zupan, 2010 WY 59, ¶ 13, 230 P.3d 329, 333 (Wyo. 2010)). With the foregoing in mind, 

we turn to Mother’s arguments.

Children’s Preference

[¶11] Mother first argues that the district court erred in failing to consider the children’s 

preference to live with Mother. We find no abuse of discretion.

[¶12] A child’s custody preference, though not conclusive, is a factor that should be 

given serious consideration in determining custody. Dahlke, ¶ 18, 351 P.3d at 942. 

About a child’s preference in custody matters, we have very recently stated as follows:

We have long held that “the preference of a child of sufficient 

age and maturity is a factor to be considered by a court in 

ascertaining what is in the child’s best interests.” Love v. 

Love, 851 P.2d 1283, 1289-90 (Wyo.1993) (quoting Roberts 

v. Vilos, 776 P.2d 216, 218 (Wyo.1989)). We have identified 

several factors to consider in weighing a child’s custodial 

preference:

[T]he age of the child; the reason for the preference; the 

relative fitness of the preferred and non-preferred parent; 

the hostility, if any, of the child to the non-preferred 

parent; the preference of other siblings; and whether the 

child’s preference has been tainted or influenced by one 

parent against the other.

Roberts, 776 P.2d at 219. “In addition, the preference which 

has a stated basis and is expressed in a plain manner should 

be accorded greater weight than one whose basis cannot be 

described.” Id. at 218-19.
8

. . . While it is true that a child’s preference is only one factor 

to consider, and that it cannot form the sole basis for a 

custody determination, a child’s preference should be 

seriously considered when the child is of an appropriate age 

and maturity to assert such a preference. Love, 851 P.2d at 

1291; Mulkey-Yelverton v. Blevins, 884 P.2d 41, 44 

(Wyo.1994) (“A child’s unequivocal preference to live with a 

particular parent is a factor to be considered, but the 

expression of a preference is not conclusive.”).

Courts have relied on children’s preferences in granting 

custody where they were found to be “bright, 

communicative, understanding, and mature for their age,”

and the decision was “well-reasoned” and “not the product 

of coaching.” Hansen v. Hansen, 327 N.W.2d 47, 49 

(S.D.1982). We agree that the “welfare of the children 

* * * is not being served if their wishes are not considered 

by the trial court.” In re Marriage of Kramer, 177 Mont. 

61, 580 P.2d 439, 444 (1978). See also, In re Custody of 

Maycelle D., 213 Mont. 225, 691 P.2d 410, 412 (1984). 

Though the child’s preference is but one factor to 

consider, theses wishes should receive “serious 

consideration.” In re Marriage of Rolfe, 216 Mont. 39, 

699 P.2d 79, 87 (1985).

Love, 851 P.2d at 1290-91.

Dahlke, ¶¶ 17-18, 351 P.3d at 942.

[¶13] Regarding the children’s preferences in this case, the court briefly noted in its final 

order that Mother believed the children preferred to live with her. However, beyond that, 

there was no testimony from either child regarding their preferences. They were never 

interviewed about a preference. Had they testified, their ages - eight and nine at the time 

of trial - do not provide significant weight. “The older a child becomes, greater weight 

should be given his preference.” Love v. Love, 851 P.2d 1283, 1289 (Wyo. 1993)

(quoting Yates v. Yates, 702 P.2d 1252, 1256 (Wyo. 1985)). In fact, this Court has 

rejected the expressed preference of ten and thirteen-year-old children as a controlling 

factor in a custody decision. Curless v. Curless, 708 P.2d 426, 429 (Wyo. 1985).

[¶14] This Court has recently stated that a party’s failure to offer evidence to the district 

court results in a waiver of any argument regarding the significance of that evidence on 
9

appeal. Guy-Thomas v. Thomas, 2015 WY 35, ¶¶ 12-13, 344 P.3d 782, 786 (Wyo. 2015). 

There,

[w]ife’s attorney did not attempt to introduce evidence or 

make an offer of proof which would tell us what evidence of 

marital infidelity she would have presented. If Wife had 

evidence that she wanted to present, her attorney should have 

offered that evidence, and if she was not allowed to present it, 

an offer of proof should have been made so that we would 

know what would have been presented to determine whether 

an error was made.

[¶15] In this case, Mother did not offer the testimony of her children at trial. The 

children were not interviewed. The district court had no concrete evidence to consider 

regarding the preference of the children. Thus, we must find that Mother waived this 

argument when she failed to put on any direct evidence on her own behalf.

GAL’s Recommendation

[¶16] Mother also argues that the district court had an insufficient basis for deviating 

from the recommendation of the GAL.

[¶17] Regarding the GAL’s recommendation, the district court stated:

56. The GAL notes that both children love both parents and 

both parents love their children. The GAL notes, as does Ms. 

Bjelland, that the parents have a woefully dysfunctional coparenting relationship. The GAL recommends maintaining 

the status quo, by suggesting primary residential custody 

remain with Mother with liberal visitation with Father. The 

GAL points to the children’s satisfaction with homeschooling

with Mother and that they are settled in Bozeman in support 

of her recommendation.

57. The Court respectfully disagrees with the 

recommendation of the GAL regarding residential custody 

and visitation. The court recognizes the children are settled in 

Bozeman since temporary residential custody was granted to 

Mother. However, the Court finds the co-parenting

difficulties between the parents are worse since the move 

given the distance between homes. When the parents both 

lived in Jackson and had almost equal time with the children, 

the relationships between the children and each parent could 
10

be maintained more easily and continue to grow despite any 

disparaging remarks and co-parenting difficulties between 

parents. The key factor for the Court is that Mother, as 

residential custodian, freely communicates with the children 

in a disparaging manner about Father. Father is handicapped 

in attenuating that prejudice because of his limited contact 

with the children as the non-custodial parent. Based on 

Mother’s testimony, there is little reason to believe that 

paradigm will change if Mother remains as the primary 

custodian. The Court finds that certain factors weigh in favor 

of Father – how parents and child can maintain and 

strengthen relationships with each other; how the parents and 

child interact and communicate and how such may be 

improved; and the ability and willingness of each parent to 

allow the other to parent without intrusion, Wyo. Stat. § 20-2-

201(a)(v)-(vii). The Court finds that Father’s parenting style 

is less intrusive, and more respectful of Mother’s parenting, 

which is conducive to maintaining and strengthening the 

children’s relationship and communication with both parents

over time and the geographic distance between homes.

58. Although Mother testified that she believed the children 

preferred to live with her and would not like moving back to 

Jackson, she also believes that both children are resilient. 

Mother also testified that she takes the children’s opinion into 

account but that they are too young to decide what is in their 

best interests. The court cites this testimony as credible 

evidence from the current primary residential caregiver that 

the two children are resilient and have the capacity to 

healthily adjust to a change in primary custody. No other 

evidence was admitted to suggest that the children have 

special needs that could impact either child’s adjustment to 

their former home in Jackson.

[¶18] A court is not required to accept the recommendations of a GAL. FFJ v. ST, 2015 

WY 69, ¶ 21, 348 P.3d 415, 421-422 (Wyo. 2015) (citing Olsen v. Olsen, 2013 WY 115, 

¶ 22, 310 P.3d 888, 894 (Wyo. 2013)). Also, “[o]ur rule is that the credibility of 

witnesses, the weight of the evidence, and conflicts in the evidence must be resolved by 

the finder of fact[.]” Montee v. State, 2013 WY 74, ¶ 23, 303 P.3d 362, 367 (Wyo. 2013) 

(quoting Aden v. State, 717 P.2d 326, 328 (Wyo. 1986)). The district court explained in 

detail its reasoning in rejecting the GAL’s recommendation -- because of the parties’

ultimate lack of cooperation. We find no abuse of discretion.
11

Change of Custody from Temporary with Mother to Permanent with Father

[¶19] Finally, Mother argues that the district court erred when it changed temporary 

custody from Mother to permanent custody with Father. Unfortunately for Mother, this 

is entirely within the district court’s prerogative and the ultimate point of a custody 

determination involving a temporary order.

[¶20] The court recognized that Mother had been the primary residential custodian since 

the court entered a temporary custody order. The court stated, however, that

“... Temporary Custody Orders are temporary and do not 

conclusively affect the ultimate custody determination in this 

or any other child custody action. The award of temporary 

custody cannot be a controlling factor to the exclusion of the 

other statutory factors, particularly not where custody was 

award in a temporary custody hearing, which is an expedited 

proceeding without the benefit of all trial procedures, 

preparations, and evidence.”

The court also noted that prior to that order, the couple shared “approximately equal 

residential custody time.” Pointedly, the court continued:

The Court has given great consideration to the Mother’s role 

as temporary primary caregiver and as the children’s 

homeschool instructor. However, in light of Mother’s claim 

to values superior than those of Father, her reluctance to 

foster a positive relationship between Father and the children 

by openly disparaging Father to the children, and her inability 

to respect Father’s rights and responsibilities as a parent 

without intrusion, Mother’s role as the ongoing primary 

caregiver is not in the children’s best interests. Mother’s 

status as the past primary caregiver is not the controlling 

factor in this case.

[¶21] It was entirely within the court’s prerogative to award primary residential custody 

to Father, and we find no abuse of discretion.

CONCLUSION

[¶22] The district court did not abuse its discretion when it awarded Father primary

custody of the parties’ children. The district court is affirmed.