In Re Ns, 2011 MT 98

Smith and Hilliard share legal custody of N.E.S.; they never married and separated around 2000.
Hilliard began paying child support in 2003 and continued until 2009 when N.E.S. lived with him full-time.
The District Court entered a default judgment in Hilliard's favor in 2009; Smith moved to set it aside and a new trial was scheduled for 2010.
The court conducted an in-chambers interview with N.E.S. and ultimately awarded primary residence to Hilliard during the school year and Smith during the summer.
Smith was imputed income for child-support purposes and ordered to pay $197 monthly to Hilliard; Smith challenges both the custody ruling and the support calculation.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was Hilliard properly named primary residential parent?	Smith contends she provided a stable home and that best interests favored her.	Hilliard argues his home life offers continuity and stability for N.E.S.	Yes; court properly favored best interests and stability with Hilliard.
Was Smith's child support calculated correctly?	Smith argues imputed income and EIC treatment were improper; Hilliard's statements were not properly scrutinized.	Hilliard asserts imputation to Smith is appropriate and EIC should not be added to imputations.	No; errors in imputation, EIC handling, and worksheet treatment require recalculation.
Was Smith afforded a fair trial in the proceedings?	Smith claims lack of access to Hilliard's financials and improper cross-examination limits.	Hilliard argues no first-time appellate issues were raised and interview procedure was proper.	Yes; trial fairness was preserved; objections raised on appeal were unpreserved.
Did the court properly conduct and weigh N.E.S.'s preferences under § 40-4-212, MCA?	Smith asserts the child should have his stated preference given weight.	Hilliard contends the court appropriately weighed all factors beyond the child’s preference.	Yes; court stated reasons for not following the child's preference and relied on stability/continuity of care.

In re Custody of J.H., 231 Mont. 301 (Mont. 1988) (child's wishes may be weighed but require a stated reason for not following them)
In re Marriage of Kovash, 260 Mont. 44, 858 P.2d 351 (Mont. 1993) (court must give reason for deviating from child's wishes)
In re Marriage of Murphy, 205 Mont. 162, 666 P.2d 755 (Mont. 1983) (best interests factors and evaluation of child's wishes)
In re M.L.H., 220 Mont. 288, 715 P.2d 32 (Mont. 1986) (interview of child under § 40-4-214 allowed without cross-examination)
In re Marriage of Dennison, 2006 MT 56, 331 Mont. 315, 132 P.3d 535 (Mont. 2006) (imputing income when unemployed or underemployed may be required)
Kulstad v. Maniaci, 2009 MT 326, 352 Mont. 513, 220 P.3d 595 (Mont. 2009) (standard for reviewing child custody decisions; credibility determinations)