In re the Parenting of CJ, 2016 MT 93 (April 20, 2016) (Baker, J.) (5-0, aff’d)
Issue: (1) Whether the evidence supported the district court’s finding that mother did not interfere with father’s relationship with child, and (2) whether the district court erred in holding that father had a “heavy burden” to show that his proposed restriction on mother’s relocation to Vermont was consistent with the best interests of their child.
Short Answer: (1) Yes, and (2) no.
Facts: CJ was born to Matthew and Stevi in 2012. Stevi is married to Tom, and the couple has a minor child. Matthew lives in Livingston with his partner, who was pregnant with the couple’s child at the time of the final parenting plan hearing. Matthew also has a daughter from a previous relationship, of whom he has part-time custody.
Matthew saw CJ only once during the first 15 months of the child’s life. Stevi testified that Matthew provided her no financial assistance, and Matthew did not provide evidence to the contrary.
Matthew initially questioned whether CJ was his child, but a paternity test confirmed that he is. In June 2013, after receiving the test results, Matthew petitioned for an interim parenting plan. While the petition was pending, he and Stevi arranged for supervised visits, but Stevi stopped them after three visits because she believed CJ was distressed by the visits.
The district court held a hearing on the interim parenting plan in February 2014, after which the parties attempted to reconcile and arrange parenting time on their own. Reconciliation failed, and in May 2014, Matthew petitioned for an “emergency de facto” parenting plan.
In July 2014, the district court issued an order allowing Matthew two visits a week with CJ, required both parties to attend counseling, appointed a counselor to assist in reunifying Matthew and CJ, and ordered Matthew to pay $156 per month to Stevi in child support.
After working with the parties for a year, the counselor testified that Matthew’s relationship with CJ had improved. As a result, she recommended that Matthew’s parenting time be increased to three days and two nights in a row each week.
In July 2015, Stevi was offered a job in Vermont. She filed a proposed final parenting plan and notice of intent to relocate. Her proposed plan called for CJ to live with her during the school year and with Matthew during the summer. Matthew filed a proposed parenting plan under which CJ would live with him during the school year and with Stevi in the summers.
Procedural Posture & Holding: In August 2015, the district court held a hearing at which Stevi, Matthew, and their counselor testified. Matthew also called an expert witness regarding child development. The district court issued findings and conclusions and an order adopting a final parenting plan, which largely reflected Stevi’s proposed plan. Matthew appeals and the Supreme Court affirms.
Reasoning: (1) A district court must determine the parenting plan in accordance with the best interest of the child. § 40-4-212, MCA. The statute provides a non-exhaustive list of parenting factors to assist the court in determining the best interest of the child. Id. The district court’s finding that Stevi did not interfere with Matthew’s relationship with CJ during the first 15 months of his life is supported by substantial evidence and is not clearly erroneous.
(2) Matthew contends the district court erred in requiring him to show that not moving was in CJ’s best interest, and that the district court elevated Stevi’s right to travel over CJ’s best interests. The constitutional right to travel may be restricted only by a compelling state interest. Advancing a child’s best interest is a compelling state interest; thus, in travel cases, it is the court’s task to reconcile the interest of both parents with the best interests of the child. The parent seeking to restrict the other parent’s fundamental right to travel bears the burden of proving that the restriction is in the child’s best interest. The Court concludes that the district court correctly stated Matthew’s burden, and correctly applied the best interest of the child standard.