In Re the Custody of J.H. , 231 Mont. 301 ( 1988 )

No. 87-482
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
IN RE THE CUSTODY OF
J.H., S.H., AND Ja.H.
APPEAL FROM: District Court of the Sixteenth Judicial District,
In and for the County of Custer,
The Honorable Alfred R . Coate, Judge presidinq.
COUNSEL OF RECORD:
For Appellant:
Kevin T. Sweeney, Sweeney and Healow; Billings, Montana
For Respondent:
George W. Huss, Brown and Huss; Miles City, Montana
Submitted on Briefs: February 18, 1988
Decided: March 29, 1988
Filed: MAR 2 9 1gW
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
The marriage of J. ( H . ) R . (mother) and T.H. (father) was
dissolved in 1982. The parents share joint custody of their
children. Here, the mother appeals the decision of the
District Court for the Sixteenth Judicial District, Custer
County, that the children will reside with the father during
the school year. We affirm.
The sole issue on appeal is whether the District Court
erred in not directly asking the children, and in not allow-
ing counsel to ask them, which parent they would prefer to
live with during the school year.
At the time of the dissolution of marriage, both parents
lived in Miles City, Montana. The parents' custody agreement
originally provided that their two daughters, J. and S., and
their son, Ja., would reside with the mother from January 1
to June 30 of each year and with the father from July 1 to
December 31 of each year. The father has remarried and the
children have a stepmother and three stepsiblings in that
household.
In the fall of 1985, the parents agreed that it would be
in the children's best interest if they resided with one
parent for the entire school year and the other parent for
the entire summer. The agreement was formalized in a written
stipulation filed with the court. The children lived with
the father for the entire 1985-86 school year.
In July of 1986, the mother moved to Billings, Montana,
and the children went with her pursuant to her summer custody
right under the modified custody agreement. The father then
petitioned for a determination of where the children should
attend school in 1986-87. The hearing was not scheduled
until October. On August 26, the court made a temporary
order that the children should be returned to Miles City to
start the school year. The mother received notice of that
hearing on August 29. She reported that as she and her
daughters were discussing that order, the daughters told her
that they had been sexually abused by their stepbrother in
Miles City.
The Yellowstone County Office of Human Services investi-
gated the abuse allegations. The daughters and their step-
brother have had a series of professional counseling
sessions. In these sessions, one of the daughters has with-
drawn her claim of sexual abuse, and the psychologist has
essentially concluded that the other daughter's claim is
untrue. The children remained in Billings with the mother
throughout this period. In May 1987, on motion of the Mon-
tana Department of Social and Rehabilitation Services, the
abuse proceedings were dismissed. In June 1987, the father
renewed his petition for interpretation of the joint custody
provisions, and also moved for and was granted temporary
custody for the summer.
At the time of the hearing, J. was age 10, S. was age 8,
and Ja. was age 7. Each parent presented testimony as to
their own suitability as school-year custodian of the chil-
dren. Also before the court was the deposition of the psy-
chologist who had counseled the girls concerning the sexual
abuse report. The court interviewed the two girls in cham-
bers, in the presence of counsel for both parents.
In its findings and conclusions, the court reviewed, as
to each parent's household, the children's familiarity with
the school they would be attending, their opportunities for
contact with extended family, their integration into the
family, the stability of the family, and the physical and
mental health of each parent. While it found both parents
were fit as custodians, it also found that in the father's
home the children would have greater opportunity for contact
with extended family, would attend a school with which they
were familiar, and would have the benefit of a stepmother and
stepsiblings with whom they have integrated well. The court
found that the children were "too young to express any type
of a binding wish as to residential custody." It further
found that "given the youth of the children, this Court is
not willing to place the children in a position to have to
make such decision." The court concluded that the children
should reside with their father during the school year. The
mother appeals.
Did the District Court err in not directly asking the
children, and in not allowing counsel to ask them, which
parent they would prefer to live with during the school year?
Modification of the physical custody provisions of a
joint custody decree is governed by 5 40-4-212, MCA. In re
Marriage of Paradis (Mont. 1984), 689 P.2d 1263, 41 St.Rep.
2041. Section 40-4-212, MCA, provides:
The court shall determine custody in accor-
dance with the best interest of the child. The
court shall consider all relevant factors, includ-
ing but not limited to:
(1) the wishes of the child's parent or
parents as to his custody;
(2) the wishes of the child as to his
custodian;
(3) 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;
(4) the child's adjustment to his home,
school, and community;
(5) the mental and physical health of all
individuals involved;
(6) physical abuse or threat of physical
abuse by one parent against the other parent or the
child; and
(7) chemical dependency, as defined in
53-24-103, or chemical abuse on the part of either
parent.
In several opinions, this Court has discussed the requirement
under this section that the child's wishes be considered. A
district court was required to make specific findings stating
the wishes of children ages 15, 13 and 11 as to their custo-
dian. In re Marriage of Kramer (1978), 177 Mont. 61, 580
P.2d 439. This Court held that the lower court must give a
reason if the wishes of the children were not followed.
Kramer, 580 P.2d at 444. Although a district court is not
always required to make specific findings on each element
under 40-4-212, MCA, there should be an indication that the
court considered all factors. Speer v. Speer (1982), 201
Mont. 418, 654 P.2d 1001; In re Marriage of Keating (Mont.
1984), 689 P.2d 249, 41 St.Rep. 1865. The court must set
forth the facts upon which its conclusion under 40-4-212,
MCA, is based. In re Marriage of Hardy (Mont. 1984), 685
P.2d 372, 41 St.Rep. 1566. Most recently, we have held that
district courts must consider the children's wishes as to
their custodian and make findings as to their wishes or why
those wishes were not followed. In re Custody of C.C. (Mont.
1985), 695 P.2d 816, 42 St.Rep. 190. In that case, the
record contained no evidence on the children's wishes.
Recognizing that because of their ages their wishes may have
little weight, we nevertheless remanded for inclusion of
evidence of their wishes.
In the present case, the psychologist stated that it was
very important that the court elicit and consider J.'s and
S.'s wishes as to where they would like to live. She testi-
fied that the girls wouldn't object to switching back and
forth between the two households, so long as they could be in
one household for the full school year. The mother and the
stepmother each testified that the children would like to
live in their respective households.
The court interviewed J. and S. at some length in cham-
bers. Without directly asking with which parent they would
prefer to live during the school year, the court asked other
questions about which place they preferred. The girls did
not indicate any preference between the schools in Billings
and in Miles City, although when asked again by counsel, J.
said she liked her school in Billings "a little more." The
girls said that both parents had nice houses. They said they
liked their mother's boyfriend, their father's wife, and
their stepsiblings. They said they liked to go hunting in
the fall with their dad.
In response to counsel s questioning in the judge ' s
chambers, the girls repeated their allegation of sexual abuse
by their stepbrother. They stated that they are not now
afraid of him, however. It is important to note that the
investigation of the claim has resulted in a dismissal of the
abuse proceedings. We also reiterate that in extensive
counseling sessions, one of the girls has withdrawn her
allegation and the psychologist has concluded that the al-
leged sexual abuse did not occur. The psychologist testified
that the girl who continues to claim the sexual abuse oc-
curred should remain in counseling, wherever she lives.
We refuse to state categorically, as the mother would
have us do, that because a district court has failed to
directly ask the children which parent they would rather live
with, the judgment must be reversed. Where, as here, the
court has received evidence on and made findings on the
wishes of the children as to their custodian, we will not
disturb the discretion of the court. Because no suggestion
has been made that the three children should be split up, we
further conclude that the mother has not shown that the court
abused its discretion in failing t o interview the youngest
child, the 7-year old boy.
Affirmed.