Goter v. Goter , 1997 N.D. LEXIS 25 ( 1997 )

SANDSTROM, Justice.

[¶ 1] Sheri L. Goter, now known as Sheri L. Monge (Monge), has appealed from an amended divorce judgment providing that she share custody of her daughter, Ashley Goter, with Darin and Beverly Goter (Gofers), Ashley’s paternal uncle and aunt. We conclude the trial court used an incorrect test in deciding custody, and we reverse the judgment and remand for redetermination.

I

[¶ 2] Ashley Goter was born on September 1, 1992, to Todd Goter and Monge, who married on November 21, 1992, and separated in July 1994. On November 28, 1994, Monge left Ashley with Todd’s mother and stepfather, Dee and Mel Weisenberger, along with a letter explaining she knew Dee and Mel could provide for Ashley much better than she could. A stipulated divorce judgment entered on December 30, 1994, granted Todd the primary care, custody, and control of Ashley. Ashley was primarily eared for by the Weisenbergers until they placed Ashley with Darin and Beverly in February 1995.

[¶ 3] In July 1995, Monge moved for relief from the judgment under N.D.R.Civ.P. 60(b), or, alternatively, to amend the judgment to grant her custody of Ashley due to changed circumstances. Goters intervened, seeking custody of Ashley.¹ The parties stipulated the matter would be heard as an original custody dispute between Monge and Goters.

[¶4] The trial court found there were exceptional circumstances requiring consideration of the best interest factors in N.D.C.C. § 14r-09-06.2.² The trial court found factors a, b, c, f, g, and j favored neither Goters nor Monge; factors h, i, and l were inapplicable; and factors d and e favored Goters. In addition, the trial court made the following findings of fact:

“22.

“[Monge] currently lives with Steve Anderson and is going to be married some time in the future. Consequently, Ashley would have significant interaction and interrelationship with Steve Anderson if she were to gain custody. Mr. Anderson pled guilty to possession of drug paraphernalia and possession of a controlled substance and he is on probation until June 28, 1996. Also, Lori Greshik and Toni Ro'aldson testified about his use of drugs. In light of the fact that [Monge] wants to remove Ashley from a stable environment and place her in a home where someone resides who has been convicted of drug related activity, factor K favors [Goters].

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“24.

“Another relevant factor is the primary caretaker factor. Although [Goters] have eared for Ashley for the past year, this factor does not necessarily favor [Goters] in light of the fact that Sheri was the primary caretaker of the child until she was slightly more than two years old.

“26.

“The best interest factors weigh in favor of [Goters].”

[¶5] The trial court made the following conclusions of law:

“3.

“Parents have a right to the custody, and companionship of their children superior to that of any other person. When there is a custody dispute between a natural parent and a third party, the test is whether or not there are ‘exceptional circumstances’ which require that in the best interests of the child, the child be placed in the custody of the third party rather than the biological parent.

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“5.

“A psychological parent relationship exists between [Goters] and Ashley Goter.

“6.

“It is in the best interests of Ashley Goter to be in the joint legal custody of [Goters] and [Monge], with [Goters] having primary physical custody of the child nine months out of the year and [Monge] having primary physical custody three months out of the year.”

An amended judgment was entered and Monge appealed.

[¶ 6] The district court had jurisdiction under N.D. Const. Art. VI, § 8, and N.D.C.C. §§ 27-05-06 and 14-05-22. We have jurisdiction under N.D. Const. Art. VI, § 6, and N.D.C.C. § 28-27-01. The appeal was timely under N.D.R.App.P. 4(a).

II

[¶ 7] Parents generally have a right to the custody and control of their children superior to the right of any other person. Simms v. Gisvold, 519 N.W.2d 585, 587 (N.D.1994). That right is not absolute. Si-mons. Absent exceptional circumstances triggering a best-interest analysis, a natural parent is entitled to custody of his or her child. In re E.J.H., 546 N.W.2d 361, 364 (N.D.1996).

[¶ 8] A trial court’s custody determinations are treated as findings of fact, which we do not set aside unless clearly erroneous. Catlin v. Catlin, 494 N.W.2d 581, 591 (N.D.1992). A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, there is no evidence to support it, or if, upon our review of the entire record, we are left with a definite and firm conviction a mistake has been made. Surerus v. Matuska, 548 N.W.2d 384, 387 (N.D.1996). A trial court’s conclusions of law are fully reviewable. Simons at 587.

III

[¶ 9] Monge contends the trial court erred in finding Goters are the psychological parents of Ashley. Monge argues: “The Goters have not had Ashley long enough to assume the role of psychological parents. They have provided physical care for Ashley but have not met the psychological needs of a child as a parent does.” This court has said: “Those persons who provide a child’s daily care and who, thereby, develop a close personal relationship with the child beeome the psychological parents to whom the child turns for love, guidance, and security.” Patzer v. Glaser, 396 N.W.2d 740, 743 (N.D.1986). There was evidence Ashley is a happy, healthy child, who loves Goters, with whom she has a close bond, and who provide Ashley’s daily care, discipline her, take her to church, comfort her if she wakes up and is upset at night, and treat Ashley as if she were their own daughter. Our review of the entire record has not left us with a definite and firm conviction a mistake has been made in finding a psychological parent relationship exists between Goters and Ashley. The trial court’s finding is, therefore, not clearly erroneous.

IV

[¶ 10] The trial court concluded “the test is whether or not there are ‘exceptional circumstances’ which require that in the best interests of the child, the child be placed in the custody of the third party rather than the biological parent.” That is not the correct test. The correct test in a ease like this was stated in Simons at 587:

“When a psychological parent and a natural parent each seek a court ordered award of custody, the natural parent’s paramount right to custody prevails unless the court finds it in the child’s best interest to award custody to the psychological parent to prevent serious harm or detriment to the welfare of the child.”

Thus, the trial court’s custody decision was induced by an erroneous view of the law and is, therefore, clearly erroneous.

[¶ 11] Goters contend the trial court’s findings “demonstrate that the trial court found that it was in Ashley’s best interests to prevent serious harm or detriment to her to place her with” Goters. There are no such explicit findings. Todd Goter contends “[t]he Trial Court implicitly found that there existed harm or detriment if Ashley were to be placed in the home of Monge and Steve Anderson.” Because the trial court clearly applied an incorrect legal test for deciding custody, however, we are unable to conclude the trial court, nevertheless, made an implicit finding in accordance with the correct test.

V

[¶ 12] The child custody ruling in the judgment is reversed and the matter is remanded for redetermination using the correct test for determining custody.

[¶ IB] NEUMANN and MESCHKE, JJ., concur. [¶ 14] WILLIAM F. HODNY, D.J., sitting in place of MAKING, J., disqualified.

1 . Todd Goter supports Goters’ petition for custody.

2 . N.D.C.C. § 14-09-06.2(1) provides, in part:

"For the purpose of custody, the best interests and welfare of the child is determined by the court's consideration and evaluation of all factors affecting the best interests and welfare of the child. These factors include all of the following when applicable:

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“d. The length of time the child has lived in a stable satisfactory environment and the desirability of maintaining continuity.

"e. The permanence, as a family unit, of the existing or proposed custodial home.

* * * Sfs * *

"k. The interaction and interrelationship, or the potential for interaction and interrelationship, of the child with any person who resides in, is present, or frequents the household of a parent and who may significantly affect the child's best interests. The court shall consider that person's history of inflicting, or tendency to inflict, physical harm, bodily injury, assault, or the fear of physical harm, bodily injury, or assault, on other persons.

* 4c * * sfc *

"m. Any other factors considered by the court to be relevant to a particular child custody dispute.”