In re the Parenting of N.S.
253 P.3d 863
Mont.2011Background
- Smith and Hilliard have one child, N.E.S., born 2000; they never married and separated soon after pregnancy.
- Hilliard began paying child support in 2003 and continued until N.E.S. lived with him full-time in 2009.
- N.E.S. spent early years with Smith in Red Lodge, Montana; summers with Hilliard began around 2005–2006.
- Hilliard petitioned for a permanent parenting plan; Smith defaulted and could not respond due to lack of counsel.
- A default judgment was entered in September 2009; Smith later moved to set aside the default, which was granted, scheduling trial for August 2010.
- District Court issued a final parenting plan awarding primary residence to Hilliard and imputing Smith’s income for child support; Smith appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Hilliard was correctly named primary residential parent | Smith argues she fostered N.E.S. since birth and seeks primary residency. | Hilliard contends stability and continuity favor primary residence with him. | Yes; best-interest standard supported with stability rationale. |
| Whether Smith’s income should be imputed and EIC treated properly | Smith contends imputed income and adding EIC were erroneous. | Hilliard argues imputation is appropriate due to unemployment and EIC treatment per Admin rules. | Imputation upheld but EIC improper; remand for proper Worksheet A calculations. |
| Whether Smith received a fair trial in the proceedings | Smith asserts lack of access to Hilliard’s financials and improper cross-examination. | Record shows no preserved argument; interview of child allowed without cross-exam. | Fair trial; no reversible error; child interview properly conducted. |
| Whether the court properly considered the child’s wishes | Smith claims court ignored N.E.S.’s preferences to live with her. | Court could override wishes with reasons; found Hilliard offered more stability. | Court did not abuse discretion; provided substantiated reasons for not following wishes. |
Key Cases Cited
- In re Custody of J.H., 231 Mont. 301, 752 P.2d 194 (Mont. 1988) (court must explain why it did not follow child’s wishes; interview allowed without cross-examination)
- In re Marriage of Murphy, 205 Mont. 162, 666 P.2d 755 (Mont. 1983) (best interests standard; assess child’s wishes among factors)
- In re Marriage of Dennison, 2006 MT 56, 331 Mont. 315, 132 P.3d 535 (Mont. 2006) (clear framework for custody decision review; credibility of witnesses)
- Toavs, In re Marriage of Toavs, 2006 MT 68, 331 Mont. 437, 133 P.3d 202 (Mont. 2006) (emphasizes best-interests framework and stability considerations)
- In re M.L.H., 220 Mont. 288, 715 P.2d 32 (Mont. 1986) (child's input valuable; court may interview child to assess wishes)
- Kulstad v. Maniaci, Kulstad v. Maniaci, 2009 MT 326, 352 Mont. 513, 220 P.3d 595 (Mont. 2009) (standard for reviewing custody decisions; assess substantial evidence)