CUSTODY OF MAYCELLE D
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No. 84-184 IN THE SUPREME COURT OF THE STATE O F MONTANA 1984 I N RE THE CUSTODY O F bWYCELLE D. APPEAL FROM: D i s t r i c t C o u r t of t h e S e c o n d J u d i c i a l D i s t r i c t , I n and f o r t h e C o u n t y of S i l v e r B o w , T h e H o n o r a b l e M a r k S u l l i v a n , Judge p r e s i d i n g . COUNSEL OF RECORD: For Appellant: James Dorr Johnson, B u t t e , Montana For Respondent: D a n i e l Sweeney, B u t t e , Montana S u b m i t t e d on B r i e f s : July 1 0 , 1984 Decided: e m b e r 1, 1 9 8 4 Nov Filed: ~ V U -V ew Clerk Mr. Justice John C. Sheehy delivered the Opinion of the Court. The mother of Maycelle D. appeals from an order of the District Court, Second Judicial District, Silverbow County, modifying a dissolution of marriage decree to grant specific visitation rights to the father. We reverse in part and remand with instructions. We consider two issues on this appeal: (1) The District Court interviewed the chambers, and made a record of the interview. minor in On its own motion, without a hearing, under section 40-4-216(4), MCA, the District Court ordered the interview record sealed to protect the minor. The mother contends this is reversible error. (2) The District Court modified the dissolution of marriage decree to provide the father specific visitation rights for which the mother contends there is not substantial evidence in support thereof. The minor is a 12-year-old girl living with her mother. The mother and father were married on July 5, 1971, and divorced in 1973 when the minor was nine months old. Under the divorce decree the mother was given custody of the minor child, and the father was granted the right to visit the minor child at reasonable times and places, "provided that he complies with the terms of the decree." The father was ordered to pay the sum of $70 per month as child support to the mother. We take judicial notice of cause no. 83-378 in our Court, entitled State of Montana, Department of F.e~renuev. Charles Dawson (Mont. 1984), 674 P.2d 1091, 41 St.Rep. 46. The defendant in that case is the father of this minor child. On April 4, 1979, the District Court made findings to the effect that the father was in arrears in the support of the Ilowever, the District minor child in the sum of $6,689. Court determined that the defendant was then unable to make support payments and suspended his responsibility for making any further support payments to the mother. When the case came before us on appeal, we held that the court could not make a retroactive modification of the chil-d support payments and determined that the Department of Revenue was entitled to recover from the father the arrears in the sum of $6,689. The District Court file reflects that on January 13, 1984, the Department of Revenue obtained two writs execution respecting the unpaid support payments. of On the same date, the father filed a motion for contempt against the mother on the ground he had been denied visitation and telephone calls with the minor c11il.d. The cause was heard before the District Court on February 23, but no record of the hearing was made, although both father appeared and were represented by counsel. 1984, the District Court entered and mother On February 24, an order amendjng the dissolution of marriage decree to provide that the father should have visitation rights on an alternating basis on legal holidays and the child's birthday and on alternate Saturdays, from 9:00 a.m. to 9:00 p.m. on Sunday. The Court entered findings of fact, conclusions of law, and judgment on March 22, 1984 and this appeal ensued. At the hearing for contempt, the District Court interviewed the minor child to determine her wishes with respect to visitation. On April 2, 1984, the District Court entered an order sealing the record of the interview of the minor child upon the ground that the court found it necessary that the record of the interview be kept secret to protect the child's welfare pursuant to section 40-4-216 (4), MCA. No counsel was appointed to represent the child in the proceedings. Counsel for the mother purports to represent the child on appeal, but we reqard his representation in the cause as confined to that of the mother. The mother is proceeding on appeal - forma pauperis. in Her affidavit of indigency indicates that she receives board and room from an employer, $79-$90 per month for daycare of other children, and ADC payments for Maycelle in the sum of $102 per month. Unfortunately, we do not have a proper record on appeal. Each party M.R.App.Ci.v.P., attempted to comply with Rule 9(d), by submitting a statement of the evidence. There are marked differences in their statements of the evidence before the District Court. However, the District Court has not approved either statement as required by Rule 9(d), supra, and the same has not been certified to us as the record on appeal. testimony and Maycelle, we Because we have no record of the hea-ring exhibits are unable relating to to determine the visitation whether of extending explicit visitation rights to the father was appropriate in this case. There is, however, sufficient record before us on which we can make a determination as to sealing the interview of the minor child by the District Court. From the order of April 2, 1984, and from the findings of fact and conclusions of law entered by the District Court in the cause, we determine that the basis for sealing the record of the interview with the minor child is not sufficiently demonstrated, and reversal on that point is required. Our cases are explicit with regard to custody. We are committed to the view that the welfare of the child is the paramount consideration in awarding custody. that the welfare of children, particularly We have held of the age invol-ved.here, is not being served if their wishes are not considered by the trial court. We have therefore required in custody cases that the court make a specific finding stating the wishes of the children as to their custodian, and if the court determines that the chil-dren's wishes are not to be followed, the court should state in its findings the reason it has chosen not to follow their wishes. In Re Marriage of Raasa (1.979), 181 Mont. 18, 25, 591 P.2d 1110, 1114; In Re Farriage of Kramer (1978), 177 Mont. 61, 69, 580 P.2d 439, 444. We ha.ve also held that the well-rounded development of a normal child demands association with both natural parents, and the noncustodial parent is entitled to a fair opportunity to share in the child's love and affection when this can be done without detriment to the child. In Re the ~arriageof Firman (1980), 187 Mont. 465, 469, 610 P.2d 178, 180. By sealing the record of the interview with the minor child, the District Court has made it impossible for the mother to make the interview a part of the record on appeal and to contest the District Court's decision not to follow the wishes of the minor child, if the child does not wish visitation with the father. We hold that the rules which we have stated with respect to the child's wishes as to custody likewise app1.y with respect to visitation, and that when the welfare of a child of the age involved here is in question with respect to visitation by the noncustodian, and the court interviews the minor child as to his wishes respecting visitation, the District Court should make a specific finding, stating the wishes of the child as to visitation with the noncustodian. If the court determines that the child's wishes are not to be followed, the court should state in its findings the reasons it has chosen not to follow such wishes. In this cause there is no reflection in the findings of fact of the District Court as to the child's wishes, or *.he reasons for not following the same if the child does not wish visitation with the father. Section 40-4-214, MCA, provides that the court may interview the child in chambers to ascertain the child's wishes as to its custodian "and as to vi.sitation.ll The statute further requires that the court cause a record of the interview to be made and to be a part of the record in the cause. Section 40-4-216(4), MCA, provides that if a court finds it necessary that the record of the interview be kept secret to protect the child's welfare, the court may make an appropriate order sealing the record. In this case, the record of the interview was sealed without a hearing and without explanation except the court's statement in its order that its purpose was to protect the child's welfare. It is difficult for us to comprehend how the child's welfare will be endangered unless the record of the interview is sealed from the child's mother (who has full-y cared for the child to date), From her counsel, and indeed from this Court. This is not to say a valid reason does not indeed exist, in which case, for purposes of appeal, we would suggest there be submitted to us the record of the in interview - camera for our examination. We remand the cause to the District Court with these iizstructi.ons: hearing on the mother shall be given opportunity for a whether continue to be the sealed record of the interview should for all purposes or whether some modificat.ion of the order for sealing may be made for the purpose of her appeal; if, in the judgment of the District Court, no revelation of the interview should be made to the pa.rties, the record of the interview may be submitted t.o this in Court - camera in any future appellate proceedings. We also remand for a certification by the District Court under Rule 9(d), M.R.App.Civ.P., of a record on appeal for any future appellate proceedings. In the meantime, the order of the District Court granting explicit visitation to the father shall be and remain in effect. We Concur: 3~&dtwd* Chief Justice
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