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 John M. 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 

Clerk 
Justice 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's motions for temporary custody and a home 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 to her by both the mother 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's 
sister-in-law, Sue Lundgren, the children's maternal grandmother 

and Judy Lundgren. The social worker testified at the second 

hearing that she had interviewed all persons said by the mother to 

have had knowledge of the mother'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, others who were not members of the Maxwell 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 social worker, the only expert who testified in this case, 

concluded: 

I found little substantiating evidence to support Pam's 

statements she has never abused her children, including 

statements made by her own children as they described, 

in what in my opinion is physical and emotional abuse. 

I found no evidence to support that Howard is an abusive, 

neglectful parent. 

The social worker recommended that the father have sole custody and 

that the mother be given I1reasonable visitation." The social 

worker also urged the court to greatly limit visitation by the 

mother until she completed a psychological evaluation to determine 

the extent of the mother's needs for counseling. Counseling was 
also 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 court heard 

testimony from the mother; two of the individuals whom the social 

worker had not interviewed, Candy Maxwell and Sue Lundgren; the 

social worker; and the two oldest sons. 

Candy Maxwell, sister-in-law of the father, testified that the 

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 the mother while the father was working. 

The maternal grandmother, Sue Lundgren, testified that, 

contrary to what many members of the Maxwell family and others had 

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 

chambers that they would rather stay with their mother because they 

disliked the father's girlfriend. The court refused to hear 

testimony from any of the father's witnesses whose interviews were 

detailed in the home study. 

The District Court awarded the parents joint custody with 

primary custody to remain with the mother. In the findings of fact 
and conclusions of law of the dissolution decree, except to mention 

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, in determining the 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 their 
parental roles, the child's relationship with both parents, and the 

geographic proximity of the parents' residences." Lorenz v. 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 re Marriage of Bloom-Higham (1987) , 227 Mont. 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, this does not 

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 

support the social worker's conclusion that the mother emotionally 

and physically abused the children. In contrast, none of the 

persons interviewed or witnesses 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's wishes 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 is whether the 

findings of the district court are clearly erroneous. The district 

court's decision will 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 report concerning custodial arrangements for the child 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 the District Court is reversed with direction 

to award primary physical custody of the three sons to the 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. 

We concur: 

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