No. 90-476 IN THE SUPREME COURT OF THE STATE OF MONTANA 1991

IN RE THE MARRIAGE OF PAMELA MAXWELL, Petitioner and Respondent,

HOWARD MAXWELL, Respondent and Appellant.

APPEA.L FROM: District Court of the Eighth Judicial District, In and for the County of Cascade, The Honorable JohnM. McCarvel, Judge presiding.

COUNSEL OF RECORD: For Appellant: Susan L. Weber,Miller & Cook,Great Falls,Montana For Respondent: Antonia P.Marra,Bell & Marra, Great Falls,Montana

Filed: Submitted on Briefs: April 

### 4, 1991 Decided: April 29, 1991

ClerkJustice John Conway Harrison delivered the Opinion of the Court.

Howard Maxwell appeals from a judgment of the District Court of the Eighth Judicial District, Cascade County, Montana, Judge John M. McCarvel presiding, granting Pamela Maxwell primary physical custody of the couple's minor children. We reverse and remand. We frame the issues as follows: 1. Did the District Court err in failing to consider all of the factors set forth in 5 40-4-212, MCA, in determining the children's best interests? 2. Did the District Court err in refusing to allow certain testimony of witnesses offered by the father? The Maxwells were married eleven years and had three sons, ages 9, 8, and 4, at the time of the dissolution. Two hearings

were held. On June 18, 1990, the District Court considered the father'smotions fortemporarycustody and ahome study. The court ordered temporary joint custody with time between the two parents to be shared equally. The court also ordered a home study by the Montana Department of Social and Rehabilitation Services. The home study was conducted by the same social worker who testified at the first hearing as a witness for the father. Names

were given toher by both themother and father. The social worker interviewed everyone on the list, except for three people whose

names were supplied by the mother: Candy Maxwell, the father'ssister-in-law, Sue Lundgren, the children's maternal grandmother and Judy Lundgren. The social worker testified at the second hearing that shehad interviewed all persons said by themother to have had knowledge of themother's parenting skills. The Home and Family Assessment documented a history of the mother's physical and verbal abuse directed at the children and others. While most of the accounts came from members of the father's family, otherswho were not members of theMaxwell family corroborated their information. The most damaging narratives came from the children themselves, who innocently accepted the blame for their mother's abuse and viewed the mother's abusive behavior as normal. As an example, the oldest child said he was at fault for nosebleeds caused by his mother's slaps to the head because he "forgot to

cover his nose with his arms." The socialworker,theonly expertwho testified in this case, concluded: 

### I found little substantiating evidence to support Pam's statements shehas never abused her children, including statementsmade by her own children as they described, in what in my opinion is physical and emotional abuse. 

### I foundno evidence to support that Howard isan abusive, neglectful parent. The social worker recommended that the father have sole custody and that the mother be given I1reasonablevisitation." The social worker also urged the court to greatly limit visitation by the mother until she completed apsychological evaluation to determine the extent of the mother's needs for counseling. Counseling wasalso recommended for the children and for the father to "resolve issues in regards to his unhealthy relationship with Pam1'and "development of parenting skills." During the second hearing held July 27, 1990,the courtheard testimony from the mother; two of the individuals whom the social worker had not interviewed, Candy Maxwell and Sue Lundgren; the socialworker; and the two oldest sons. Candy Maxwell, sister-in-law ofthe father,testified thatthe mother disciplined the children as any other mother would by spanking them after three or four warnings. She said that the mother had recently adopted a penny method,giving and taking away money according to the children's behavior. Mrs. Maxwell stated that she had not seen the father discipline the children because she usually visited themother while the fatherwas working. The maternal grandmother, Sue Lundgren, testified that, contrary towhat many members of theMaxwell family and othershad said, she had never heard the mother call the children obscene names, scream at the children, or hit the children. The eight and nine-year-old sons again told the judge in chambersthattheywould rather staywith theirmother because they disliked the father's girlfriend. The court refused to hear testimony from any of the father's witnesseswhose interviews were detailed in the home study. The District Court awarded the parents joint custody with primary custody to remain with themother. In the findings of factand conclusionsof law of thedissolutiondecree,except tomention that a home study was ordered, the District Court did not address the Home and Family Assessment or the social worker's recommendations.

Did the District Court err in failing to consider all of the factors set forth in 5 40-4-212,MCA, indeterminingthe children's best interests? In child custody matters the primary consideration is the child's best interest. Section 40-4-223,MCA. In determining the child's best interest the court shall consider the following factors: (a) the wishes of the child's parent or parents as to his custody;

(b) the wishes of the child as to his custodian; (c) the interaction and interrelationship of the child with his parent or parents, his siblings,and any other person who may significantly affect the child's best interest; (d) the child's adjustment to his home, school, and community;

(e) the mental and physical health of all individuals involved; (f) physical abuse or threat of physical abuse by one parent against the other parent or the child;and

(g) chemical dependency, as defined in 53-24-103, or chemical abuse on the part of either parent. Section 40-4-212, MCA. The district court can weigh additional factors, such as "the parents1 ability to cooperate in theirparental roles,thechild'srelationship with bothparents,and the geographic proximity of theparents'residences." Lorenzv. Lorenz

(1990), 242 Mont. 62, 66-67, 788 P.2d 328, 331. While the district court is not required to make specific findings as to each factor,the "'essential and determining facts upon which the District Court rested its conclusion1 must be expressed. In reMarriage of Bloom-Higham (1987)

### , 227Mont. 217, 219, 738 P.2d 114, 115 (quoting In re Marriage of Keating (1984), 212 Mont. 462,467, 689 P.2d 249,251-252)

# . However,thisdoesnot

mean that the district court can ignore circumstances which may endanger the children. Specifically, the District Court, in stating its reasons for awarding primary physical custody to the mother, overlooked 'Ithe mental and physical health of all individuals involved1'and "physical abuse or threat of physical abuse by one parent against the other parent or the child." Sections 40-4-212(e) and (f),MCA. Even if only part of the information in the Home and Family Assessment is true, a great deal of evidence still exists to supportthe socialworker's conclusionthat themother emotionally and physically abused the children. In contrast, none of the persons interviewed orwitnesses in court testified that the father

was abusive or a poor parent. The District Court seemed to rely chiefly on the children's testimony that they wished to stay with the mother. While the children'swishes are a factor to be considered under § 40-4-212,MCA, these wishes cannot be given priority when the evidence indicates that the mother is unfit. This policy is reflected by the rule in Montana that joint custody is preferred, but "a finding that one parent physically abused the other parent or the child is a sufficient basis for finding that joint custody is not in the best interest of the child." Section 40-4-224,MCA. The standard of review in a child custody case iswhether the findingsof thedistrict court are clearly erroneous. Thedistrict court'sdecisionwill be upheld unless a clear abuse of discretion is shown. In re Marriage of Susen (1990),242 Mont. 10,13-14,788 P.2d 332, 334. In Bloom-Hiqham, the district court ordered an investigation and reportconcerning custodial arrangementsforthechild pursuant to 5 40-4-215,MCA, but did not indicate any consideration of the report in reaching its final custody decision. We found the court's failure to consider the report an abuse of discretion. Bloom-Hiqham, 227 Mont. at 220, 738 P.2d at 115-116. The District Court clearly abused its discretion in failing to consider the home study and all of the factors of 5 40-4-212, MCA, particularly the mother's mental health and abuse of the children. Notably missing was any order of a psychological evaluation of the mother to determine whether she was capable of parenting the children or order of counseling for the mother and other family members.The judgment of theDistrict Court is reversed with direction toaward primary physical custody of thethree sonstothe father. I1 Did the District Court err in refusing to allow certain testimony of witnesses offered by the father? Since the court's decision has been reversed, we need not discuss this issue.

Weconcur:

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