*1 KULSTAD, MICHELLE Appellee, Plaintiff and v. MANIACI,
BARBARA L.
Appellant.
Defendant
DANo.
08-0483.
Argued April
2009.
April
Submitted
6, 2009.
Decided October
MT
For L. Griffing (argued), Elizabeth ACLU of Montana Foundation, Missoula; Susan Ridgeway, Attorney Law, G. at Missoula; Lewis, Howard, Rice, Kevin H. Nemerovski, Canady, Falk Rabkin, Francisco, & San California.
For Family Amicus Montana Foundation: Patrick Flaherty, The Legal Foundation, Beach, National Virginia Virginia.
For Amicus Pacific Justice Institute: Peter Lepiscopo, D. Morrow, & Lepiscopo Diego, San California. Assn, For (NASW);NASW, Amicus National ofSocialWorkers MT Chapter; Academy and American of Pediatrics: P. Mars Scott and Geist, Law, Thorin A. Attorneys Missoula; at Luann Simmons and Jeruss, Sara O’Melveny Myers, Francisco, & San California. For Amici Law School Reynolds, Reynolds, Professors: James P. Sherwood, Motl and Helena.
For Amicus Northwest Women’s Law Center: Daniel P. Semmens, Dorsey Whitney, & Missoula.
JUSTICE MORRIS delivered the Opinion of the Court. Far too often this Court faces a situation in ¶1 which minor children
515 216, E.D., MT 344 e.g. them. See In re adult fit to have no 333, 177 1283; M.P., 2008 MT 341 Mont. 228, 186 P.3d In re Mont. 2007 MT 495; Custody Rights of A.P., and Parental P.3d In re unusual increasingly presents P.3d 105. This case Mont. children, L.M. and A.M. adults fit to minor situation oftwo in the minor children to parental interest District Court awarded (Kulstad) objection of the Kulstad over the Appellee Michelle (Maniaci). awarded L. Maniaci The court also Appellant Barbara affirm. property. and real We personal Kulstad an interest following appeal: issues on presents 40-4-228,MCA, application of §40-4-211 Whether the court’s interest violates Maniaci’s Kulstad’s claim of a support parent. as a fundamental constitutional interest. properly the court awarded Kulstad Whether personal property Kulstad properly the court awarded Whether home. property parties’ and a AND FACTUAL BACKGROUND PROCEDURAL Background Clinton, Montana, early Maniaci moved to late 1994 *3 in Maniaci lived in a Maniaci and Kulstad met in Montana late 1995. part-time chiropractor trailer her and worked as a property on sister’s Seattle, Washington. Kulstad lived in She out of her sister’s home. and with her supported worked in Seattle on business ventures herself point parties’ relationship progressed accumulated assets. The they began staying respective that with each other at their homes. eventually in Maniaci. Kulstad moved to Montana 1996 to live with 18,1996. Kulstad exchanged rings Kulstad and Maniaci on March ¶7 rings gave until the fall Maniaci also and Maniaci wore of 2006. anniversary Kulstad three cards. Maniaci Kulstad as her represented couples numerous occasions. The attended “partner” parties on in and 2006. The mutual friends counseling parties’ and intimate and later as co- regarded partners, them as domestic parents. supported parties primarily Kulstad with her accumulated
¶8 automobile joint assets from 1996 to 2001. Kulstad and Maniaci had a Maniaci added naming insurance each of them as insureds. policy policy. insurance Maniaci executed Kulstad to homeowner’s Kulstad to make her end-of-life decisions. living will that authorized Parental Interest possibility of co- periodically Kulstad and Maniaci discussed mid-February to them in unexpectedly a child. L.M. came Eddy (Eddy), Camilla chiropractic patient,
2001 when Maniaci’s adopting Kulstad and Maniaci had an interest inquired whether Eddy that L.M.’s great grandson, who lived in Anaconda. believed days later, Eddy, fearing A provided inadequate couple care. mother life, and Maniaci parties. for L.M.’s contacted the Kulstad drove to custody relinquished Anaconda L.M.’s natural mother to where parties. hospital Kulstad and Maniaci took L.M. to the and entered his sought legal
name as ‘L.L. Kulstad-Maniaci.” Kulstad and Maniaci lawyer regarding adoptions. advice same-sex Their advised them that only adopt one of them to L.M. The Montana law allowed adoptive parent. decided that Maniaci would be the Kulstad and agreed only they Maniaci that L.M. would call one of them “mom”and agreed hyphenate further not to L.M.’s last name. Kulstad and agreed they equally Maniaci also would function even though only one them could L.M. adopt study and Maniaci in a participated Kulstad home with social (Garthwait) Cynthia July part worker Garthwait 2001 as adoption process. participated Kulstad and Maniaci further in an adoptive post-placement report April with Garthwait 2002. Maniaci understood, at each and represented meeting, Garthwait Garthwait that Maniaci and Kulstad in a committed relationship. were Garthwait further understood that Kulstad would co-parent support L.M. Maniaci decided in adopt baby girl. she wanted to initially disagreed Maniaci bringing Kulstad about another child into the home. Maniaci pursued adoption objection. over Kulstad’s and Maniaci Kulstad understood nonetheless that Kulstad would any function as a parent adopted. second child that Maniaci Kulstad and Maniaci participated study in a home with Dennis (Radtke) adopt Radtke a second child. Maniaci represented to co-parent Radtke Kulstad would Maniaci support A.M. sent inquiry Rights an email to the Human in March Campaign about adopting a second child. Maniaci “partner” stated that she and her completed private adoption study boy” and a home ‘for our ‘how like adopt baby girl.” eventually adopted we would A.M. *4 from Guatemala. Kulstad lived with the children and functioned a parent as to the
¶14 day-to-day children on a basis for the remainder of her provided with Maniaci. Kulstad and Maniaci for the children’s physical, psychological, developmental any and needs much like other for responsibility family. primary Maniaci assumed two-parent Maniaci for the children. and or services groceries supplies purchasing day while Kulstad worked during the children cared for primarily and in the afternoon Kulstad cared for the children outside the home. in the basement chiropractic patients Maniaci saw early evening when cared primarily lived. Kulstad parties house in which the office of the in parties jointly participated children on the weekends. for the attachment issues. L.M. to address his reactive holding therapy with children in her will and as included Maniaci and the Kulstad L.M. Kulstad also claimed policies. in her life insurance beneficiaries through years for the on her tax returns dependent status, knowledge full Maniaci’s and head of household claim A.M. agreed Maniaci that Maniaci would consent. Kulstad and for the in Maniaci had not filed tax returns on her tax returns Months begun. 2006 at the time this action had years through in she later, years tax returns for those which Maniaci filed back as a sought dependent. to claim L.M. 2001, 2002, and prepared had her tax returns for Maniaci returns contained inflated adopting
in A.M. These tax anticipation figures inflated income figures. provided income Maniaci these Maniaci government adoption application. with A.M.’s Guatemalan filed these tax returns with the Internal Revenue Service. never produced remained unaware of their existence until Maniaci Kulstad discovery request in to Kulstad’s in this case. response them Property $30,000 July Maniaci a 4.5 acre tract of land for purchased $43,214.73 approximately property improvements 1995. She paid others, early 1996, that she in 1995. Maniaci informed Kulstad and building had no funds left to finish the house. The understood money that Kulstad would move to Montana contribute their complete construction of what would be help labor the sale of portion home. Kulstad contributed a of these monies from in Montana. help her house in Seattle to fund the house parties’ joint her accumulated assets into the deposited Kulstad money began contributing 1996-2001. Kulstad checking account from improvements the construction of the house and complete and labor to of 1996. Kulstad also constructed property spring to the real the children. Kulstad worked on the outbuildings play and a area for nearly during spring full-time and summer property house and 1996 that expressed spring concern to Maniaci Kulstad *5 title. Maniaei assured Kulstad that the her name was not on the should their end. property equally would be divided assurance, promise, as as Maniaei’s that in Kulstad relied on this well death, property Maniaei to bequeath the event of her would property Maniaei in 1998 that left the real to Kulstad. executed will Kulstad. her neared Kulstad’s began working depletion. Kulstad assets
¶20 her parties. income failed to meet the financial needs of the She used for the credit cards to subsidize her income. Kulstad accrued debt significant money She parties. expended benefit of labor helping grow chiropractic Maniaei business. Kulstad worked to office, entrance, deck, stairs, and trim. Kulstad’s finish the basement many designed accrued included items to facilitate Maniaei’s debt basement, practice, paying such as the cost to finish the chiropractic insurance, purchasing magnets, purchasing malpractice Nikkei purchasing chiropractic videos. initially agreed help pay Maniaei off the credit card debt. however, chiropractic practice,
Maniaei’s income from her did not eventually increase as much as she had Maniaei expected. received inheritance monies in the late summer of2001. She refused use this inheritance to help pay down credit card debt Kulstad’s name. Maniaei instead her inheritance deposited separate monies into only accounts she could access. Maniaei had filed for bankruptcy expected in 1992. Maniaei Kulstad bankruptcy to file for if she could pay ultimately May not off the debt. Kulstad filed for bankruptcy Proceedings Prior Kulstad filed a petition parties’ marriage dissolve the and to January 19, receive a interest on sought Kulstad parties’ decree to marriage dissolve common law and to distribute equitably parties’ sought assets. Kulstad further an order of children, support of the minor an granting parental order her a interest, and an order implementing parenting plan based on the best interests ofthe children. appointment Kulstad also filed for the (GAL). guardian ad litem The court issued a summons to Maniaei temporary restraining and a economic order to the parties. Maniaei filed petition a motion to dismiss Kulstad’s for dissolution marriage parenting. objected She further to the appointment of (TRO) a GAL. Maniaei also filed for a temporary restraining order prevent entering family Kulstad from home. The petition court denied Maniaei’s motion to dismiss Kulstad’s appointed The court a GAL parenting plan. interest and initially judgment legal on the
and issued a TRO. The court reserved marriage. as a common law recognition parties’ relationship ofthe petition of Kulstad’s on the rejected portion court later the dissolution recognize marriages. same-sex that Montana law does not basis 20,2007, March to determine whether hearing The court held a on children, in the minor whether Kulstad had a an interim relationship with the children warranted Kulstad’s remain in effect. Jane parenting plan, and whether the TRO should GAL, Cowley, attended on of the children. The court heard behalf testimony from the and numerous witnesses. *6 her presented regarding Kulstad several witnesses who testified
¶26 children, a relationship including with the L.M.’s teachers and close family page report friend. The GAL submitted a seventeen protect encourage recommended that the court Kulstad’s close Doty Moquin (Moquin), with the minor children. a relationship counseling L.M., to Maniaci and therapist provided who testified. her Maniaci in Moquin upon therapy arguing relied sessions with child-parent relationship Kulstad did not have a with the minor children. testimony Moquin’s The court found not credible. The court
pointed contradictory testimony to the of other witnesses and the fact Moquin spoken people had to a limited number of about Kulstad’s relationship Moquin’s with the minor children. The court deemed analysis child-parent relationship insufficient to evaluate whether a existed between Kulstad and the children. The court further cited the by testimony conflict created of the fact that she Moquin’s view as a Maniaci and therapist served for for L.M. legally The that Maniaci recognized adopted court minor concluded, however,
children. The court that Kulstad had established convincing child-parent clear and evidence that a existed her and of the minor children in accordance between both ll(4)(b) (6), 40-4-2 and MCA. The court determined that an interim §
parenting plan served the children’s interests. The court further best §40-4-228, MCA, applied adjudication determined that to the final parenting parties. between the The court allowed the TRO to remain exception effect with the that Kulstad could return to the former family exchanges. home for visitation The court on December 2007. The parenting plan revised parties participate
court ordered the in the Positive Alternative for (PACT) Miller, Cindy Children Team The program. appointed court (Dr. The court Miller), parenting plan evaluation. complete Ph.D. upon completion GAL arrange Dr. Miller to substitute authorized objection to Jane following Maniaci’s parenting plan evaluation The court vested the GAL with Cowley’s continued service as GAL. authority plan. The court further allowed parenting to enforce a court changes parenting plan, without GAL to recommend in the PACT order, upon parties’ participation feedback from the based therapist Miller to select a The court also authorized Dr. program. (Dr. Silverman, Paul Ph.D. both children. Dr. Miller selected Silverman), the children and the provide therapeutic services for parties.
Parenting 23,2008, May held a trial on 22 and to determine The court bench permanent parental whether Kulstad should be awarded a parties’ property equitably. and whether the should be divided witnesses, again testimony, and evidence. The court- presented Miller, testimony expert, presented regarding Dr. appointed background educational and her evaluation. Kulstad plan (Dr. Dixon, testimony by Dr. Silverman and Suzanne M.D. presented Dixon). (Dr. Hansen, Hansen), Trayce Ph.D. testified for Maniaci. The findings District Court entered series of offact based on the evidence presented highlight findings at the trial. We those here in narrative form. practiced psychology twenty- Dr. Miller had in the clinical field for years, at including years Hospital
one three Shodair Children’s Helena, Montana. Dr. Miller had been member of Missoula *7 County years, County Child Protection Team for ten and the Missoula years. Child Abuse Referral and Evaluation Service Committee for six published major psychology She had work at least two and journals. behavior Miller Dr. parties capable being parents. deemed both fit Dr.
¶32 strong Miller observed that the children had a attachment to both parties, consistent with the observation of the children’s teachers and objection mental health Dr. Miller noted Maniaci’s professionals. relationship children’s with Kulstad. She contrasted Maniaci’s objection relationship with Kulstad’s of the children’s support with Maniaci. analyzed developmental Dr. Miller also the children’s needs. She
¶33 attachment children had opined significant both issues. difficulty regulating emotionally. children also had themselves Dr. Miller as a skill learned in secure described attribute noted that Kulstad had served as relationships. Dr. Miller parties’ separation to the children before the psychological parent after She separation. continued to serve in that role that Kulstad adversely affect Kulstad’s removal from their lives would offered that stable, healthy relationships. capacity future to have their from the American Dr. Miller also reviewed literature (APA) any effects on children of Psychological regarding Association very strong that a being raised in same-sex households. She asserted no difference in consensus existed in the that showed literature children raised same-sex households. psychotherapy conducts with the minor frequently Dr. Silverman individually, parents,
children with the children and their and with therapy April each adult He started with L.M. in 2007 and separately. September A.M. in or October 2007. Dr. Silverman observed that with relationships had with the children. He both relationship concluded that Kulstad had a with the children before however, therapy. specify precisely, He could not when that relationship begun. comfortably Dr. Silverman determined that Kulstad had served parenting beginning
in a role from the ofhis contact with her and that children, expresses great caring, generally- “she love for the behavior.” Dr. Silverman it to appropriate parental believed be best interest of the children to maintain their Kulstad. of the relationship Termination would be detrimental to the agreed parenting plan children. He with Dr. Miller’s evaluation. Dr. Dixon testified on the relevance of sexual orientation development. parents to children’s Dr. Dixon concluded that same-sex impact adjustment well-being. have no adverse on children’s just Children ofsame-sex fare peers physically, well as their psychologically, emotionally, cognitively, socially. This development progression includes a child’s gender sexual development. validity Dr. Hansen attacked the of Dr. Miller’s Dr. argued
evaluation. Hansen that Dr. Miller had failed to use reliable and valid assessment measures and Dr. techniques. Hansen asserted that Dr. Miller’s evaluation had failed to APA proper follow professional guidelines. ethics In Dr. particular, Hansen testified custody the PACT did not program guidelines follow APA’s for child pointed evaluations. Dr. Hansen to the fact that PACT was a new program professionals efficacy. and no had studied its Dr. Hansen *8 PACT would be needed before an study that a of
argued published could be made. objective evaluation Miller, course, program. the PACT Dr. Miller developed Dr. had particular to fit the program that she had modified the PACT
conceded argued Hansen that this modification circumstances of this case. Dr. study proper once a review ofthe require further evaluation would had undertaken. Dr. Hansen testified existing program PACT been reliance on this modified version ofthe PACT that Dr. Miller’s use and need to “substantiate light psychologists’ was “unethicaFin program findings that their “are reliable and findings” their and demonstrate valid.” argued initially that Dr. Miller should have followed Dr. Hansen to use established professional
the APA’s recommendation result, Dr. Hansen criticized Dr. Miller’s scientific standards. As subjective judgment clinical Dr. also criticized opinion.” “own Hansen Miller’s assertion that the same-sex element in this case would Dr. children. that Dr. Miller had failed have no effect on the She testified by parented to research the differences between children who are couples parented by couples. same-sex and those who are heterosexual on that parenting Dr. Hansen admitted cross-examination actually a new area for her and that she never represented evaluations qualified expert had one. Dr. Hansen never had been as an prepared by any any witness court. Dr. Hansen never had been retained an Dr. Hansen’s expert psychology practice witness. involved geriatric currently Dr. Hansen conceded that did not patients. she than years professional work with children and fewer four experience earning after her Ph.D. She had worked as a research journal and had article in published Personality assistant one in a forensic-type Assessment situation. disagreed The court with Dr. Hansen’s of Dr. criticisms Miller’s Dr.
parenting qualifications support evaluation. Hansen’s did not her testimony criticism of Dr. Miller’s evaluation or her on the subject of the relevance of sexual orientation on children’s development. prepared The court concluded that Dr. Miller had by following the in the field. generally-accepted practices evaluation accepted adopted parenting plan The court Dr. Miller’s evaluation. agreed The court with Dr. Miller and Dr. Silverman that both significant children had histories of abandonment and attachment represented loving issues. Kulstad and stable force the children’s lives and that it would be in the best interests of the children to their with Kulstad. The court found child-parent relationship continue credible evidence to show presented Maniaci had no not be in relationship with Kulstad would continuing the children’s *9 that, contrary to Dr. Hansen’s interest. The court noted their best suggests that same-sex testimony, the APAconcludes that no evidence psychosocial development that parents, are unfit to be couples any compromised would be among couples children of same-sex respect. and Kulstad had been determined that Maniaci The court
¶44 long-term commitments. partners and financial with domestic Kulstad as regarded that the children Significant evidence established study home claimed to have ‘lied” to the parent. their Maniaci Radtke, evaluators, and about her with Garthwait established, however, that the Kulstad. The court determined evidence had consistent with Maniaci’s parties’ relationship been original to Garthwait and Radtke. representations family of relationship placed The the children into a same- parties’ complexities The cautioned that the of each child’s parents. sex court proceed mandated the court to with care and attachment disorders of Dr. Miller and Dr. Silverman. The court awarded follow advice interest in L.M. and A.M. The court further Kulstad authority determined equal decision-making that Kulstad would have affecting the children. regarding significant with Maniaci matters parenting The court issued an interim schedule. The court ordered PACT for parties participate program and minor children to GAL, the PACT year. through one The court directed that selected program, parenting submit recommendations for a final schedule after and year. one The court would review the GAL’s recommendations final parenting plan. issue a The court authorized the GAL to changes recommend schedule in consultation with Dr. Silverman, Miller, appointed therapist. Dr. and Maniaci’s PACT Property money Maniaci first asserted that Kulstad’s contributions of and the real more than a develop property represented nothing labor Maniaci next had intended for her gift. argued Kulstad lodging. to the real for property compensation contributions serve as had finally property Maniaci claimed that Kulstad’s work on the been defective, repair, damaged in need of and had the value of the real property. maintain significant money Kulstad had contributed and labor to trees, and property. performed yard
the real She thinned home taxes, insurance, maintenance, paid the homeowner’s paid property money and garbage and for service. Kulstad’s contributions paid the real from 1996 to improving maintaining property labor to and significantly greater had than Maniaci’s contributions. been joint property Kulstad had undertaken her work on benefit knowledge children Maniaci’s full minor denying any Kulstad consent. The court thus determined unjustly enrich property would Maniaci. The court awarded $101,824.43 upon Kulstad’s contributions toward the Kulstad based joint assets. parties’ for auto primary responsibility repairs Kulstad assumed all titled regardless
auto insurance for vehicles ofhow or used. Kulstad primarily the Kia Maniaci drove the Kia primarily Sportage. drove Sportage Sedona. The court awarded the Kia to Kulstad as an equitable improving award for her contributions of labor in The court ordered the property. title to be transferred to Kulstad. personal court each to retain all then in her property allowed possession. appeals.
STANDARD OF REVIEW
interpretation
We review for correctness a district court’s
and
¶50
T.H.,
237, 35,
428,
MT
application of statutes. In re
2005
328 Mont.
¶
Questions
121
constitutionality
plenary
P.3d 541.
of
involve a
review
by
Custody
275,
this
In re
and
Rights of D.S.,
Court.
Parental
2005 MT
15,
180,
329 Mont.
the
are
v.
MT
erroneous. Fischer
2007
¶
8,
122,
337 Mont.
DISCUSSION MCA, 40-4-228, the application Whether court’s §§40-4-211 of Kulstad’s claim a interest violates Maniaci’s support of rights parent. constitutional as a fundamental parent contends that stands as the fit natural to the Maniaci she adoption process after the had severed the minor children biological parents. argues the children’s rights of §40-4- MCA, 228, improperly require fails to a court to determine the “fitness” awarding nonparent of a before natural of argues the best interests the child. Maniaci further upon based constitutionally protected rights, her children have no adopted absent showing abuse, of neglect, dependency. points She to a series by continually support decisions Court to claim that this Court constitutionally protected the upheld has party.
over a third
Pre-1999 Decisions
case,
In the first
Guardianship of Doney,
the Court Matter
282,
(1977),
174 Mont.
570 P.2d
returned
children to the
biological
though
biological
given
father even
had
father
their aunt
custody
temporary
after the children’s
had died. In
re
mother
In
A.R.A.,
66,
(1996),
custody
277 Mont.
P.2d at 1999 Amendments nonparental legislature Montana amended the statutes The 1999 rights nonparental a child’s constitutional specifically recognize
to §40-4-228, MCA, added which legislature The parenting proceedings. interest seeks a in a child nonparent parental that “when a provides child, of provisions chapter a the 40-4-211 or visitation with under 41, under Title 3.” separate pending chapter unless a action is apply MCA, standing a a 40-4-211(4)(b), nonparent allows to seek Section if has person interest of a minor child the established child-parent relationship. 40-4-228, MCA, application its to a Nothing in Section limits 40-4-228(2)(b), MCA, specifically
finding neglect. of abuse or Section must seeking interest first establish provides §40-4-227(l)(a), legislature added relationship. also child-parent MCA, parent. defers the of the natural Section 40-4- which 227(l)(a), MCA, policy ‘it is the of the state of Montana provides that constitutionally and the recognize protected rights the family integrity parent’s unit.”The statute seeks to balance constitutionally protected rights child to rights with 40-4-227(l)(a)-(c), interests of the child. Section determine best constitutionally protected The parent’s MCA. of the child yield of a child should best interests “when
control contrary child-parent relationship.” parent’s conduct is 40-4-227(2)0»), MCA. Section constitutionality. Custody In re carry a presumption Statutes 15, 180, Rights 275, MT 329 Mont. 122 of D.S.,
and Parental 2005 ¶ the burden of party challenging 1239. The statute carries P.3d unconstitutionality beyond a reasonable doubt. proving the statute’s any resolve doubt Custody Parenting Rights of D.S., 15. We In re Michaud, 88, 15, MT 342 Mont. of the statute. State v. 2008 in favor P.3d 636. 180 MT Parenting argues of J.N.P., that In re amendments, 351, 27 years P.3d decided two after the Mont. J.N.P., disagree. In rejected constitutionality. their We implicitly mother, left her child Tammy Lynn (Tammy), a natural Knopp find uncle to allow her to (Knopps) with her aunt and temporarily a document prepared and a live. The uncle place to employment J.N.P., The document 5-6. “temporary guardianship.” entitled ¶¶
527 the medical attention for Knopps to authorize to seek J.N.P. purported J.N.P., necessary. Tammy the document. 5. signed if it became ¶ plan child Knopps petition support The filed for a caring slightly for her more than two months. for J.N.P. after for J.N.P., actually designation Knopps of the as petition sought 6. The ¶ child, reside sought an order the child with custodian supervised to Knopps, sought Tammy limit restricted and J.N.P., Court, petition Knopps’ 6. As noted “the was visitation. ¶ custody J.N.P., of a for equivalent petition the functional of J.N.P.” ¶ Knopps custody parte 6. The for on an ex applied temporary also basis. J.N.P., granted request. The court their 7.¶ Tammy guardianship moved terminate the and restore her J.N.P., rights. 8. She that her parental argued parental rights could ¶ J.N.P., Although not be terminated absent Title 41 9. proceeding. ¶ Knopps 40-4-212, relied the ‘best interest” upon standard in § MCA, they J.N.P., sought custody opposed actual to a J.N.P., 6, 10. The interest. court concluded that the law does not ¶¶ of a permit parent’s right destruction fundamental custody solely of her child upon J.N.P., based child’s best interest. ¶ Maniaci contends the Court must have assumed existence child-parent
of a Tammy because had left J.N.P. in the Knopps’s custody. child exclusive The Knopps rely could not upon nonparental seeking J.N.P., statutes in custody however, light of their comply failure to the statutory pre-requisites child-parent first establishing relationship through petition filed §40-4-211, Parenting 68, under MCA. In re MT of D.A.H., 9, 2005 296, 326 Mont. P.3d 247. 109 The Court D.A.H. refused to allow grandparents seeking custody sidestep statutory pre-requisite J.N.P., and the Court in J.N.P. also refused. 22-23. The Court ¶¶ Tammy determined that not deny custody it could absent termination pursuant of her 41 rights J.N.P., to a Title proceeding.
Troxel Standard
Supreme
further claims that
the United
States
Court
Granville,
rejected
statutory
a similar
scheme in Troxel v.
530 U.S.
(2000).
Troxel,
S. Ct.
In
2054
two children were
to a couple
born
Troxel,
out of wedlock.
Troxels’ visitation
petitioned
The Troxels
for the
60-61,
at
Omura, 157, thereby 2006 MT 332 Mont. P.3d nonparental the 1999 amendments to the rendered unconstitutional 40-4-228, MCA. In statutory set forth in 40-4-211 and framework § Polasek, plurality opinion Court determined Troxel our the child” standard remained consistent ‘best 40-9-102, MCA, §40-9-102, Polasek, MCA. 14. Section contained ¶ grandparent allows a reasonable to contact awith child. The instructs, Court reasoned that Troxel and our statute requires, a court to determine the objecting parent fitness of an parental rights whose have not been terminated may grant before a court petition grandparent Polasek, 15;§40-9-102(2), contact. A presumption MCA. arises in parent’s favor of the if Polasek, wishes is fit. Maniaci seeks to have this Court extend fitness
condition
grandparent
contact statute to 40-4-211 and 40-4-
§§
228, MCA. The extension
advocated Maniaci
ignore
would
different
language in the grandparent
contact statute and the
nonparenting
40-4-228(5), MCA,
statutes. Section
provides that fit is
necessary
not
for the court to find a
unfit before
awarding
interest to a third party.” The Supreme Court in
Troxel passed on the
question
constitutional
as to whether the Due
Process Clause requires all nonparental visitation statutes to include
a showing of harm
potential
harm to the child as a condition
precedent
granting
Troxel,
visitation.
anyone to be awarded
Troxel,
visitation.
nonparenting
(Minn.
statute in
Johnson,
SooHoo v.
530 to child- and the need first establish a parent of the natural wishes (R.I. DiCenzo, 759 A.2d also Rubano v. 959 parent relationship. See 2000). have jurisdictions applied that in other argues Maniaci courts allowing in reversing in decisions trial courts the Troxel standard M. rights party. example, to third For Janice custody or visitation (Md. 2008), K., Maryland’s Md. A.2d 73 Margaret v. facto rejected parent the common law de highest appellate court to a awarding party. as a for visitation third doctrine basis statute, nonparenting had similar to Montana’s Maryland no statute The however, allowing that the visitation. provide would basis ‘twjhether Maryland Assembly General cautioned that court statute to enact similar to the Minnesota at issue legislation chooses M., 404 Md. at prerogative.” is within its Janice in SooHoo legislature nonparenting has chosen to enact the A.2d at 89. Montana’s carry beyond to her proving Maniaci has failed burden of statutes. challenges impermissibly the statutes she reasonable doubt that to her In re infringe right on constitutional children. Custody Parenting Rights and of D.S., ¶ properly Whether the court awarded Kulstad a interest. statutory to nonparental framework allows a court award nonparent two to a who establishes threshold by convincing evidence. These threshold conditions clear “(a) engaged are the natural has conduct conditions that: (b) contrary child-parent relationship; the nonparent that is the child a child-parent has established with defined 40-4-211, and it in the best interests of the child to continue that is 40-4-228(2)(a)-(b), relationship.” MCA. Maniaci contends that Section failed prove convincing Kulstad clear and evidence mandatory requirements §40-4-228(2)(a)-(b), MCA. Contrary Relationship
Conduct
to Child-Parent
Maniaci claims that Kulstad failed to demonstrate
Maniaci
engaged
contrary
child-parent relationship.
in conduct
argues
contrary
limit conduct
nonparenting
Maniaci
statutes
neglect. The
child-parent relationship
to instances of abuse or
any
against
neglect proceedings
State never initiated
abuse or
any
neglect.
Kulstad
made
allegations
never
abuse
Section
40-4-228(5),
however,
it
MCA,
‘is not
specifically provides,
*15
necessary
awarding
find
for the court to
a natural
unfit before
Nothing
to a third
under
section.”
in
§
this
40-4-228, MCA,
neglect.
cases
application
limits its
of abuse
The District Court determined that
contrary
Maniaci had acted
her child-parent relationship when she ceded
her exclusive
authority to Kulstad. Kulstad functioned in a parental role from the
day
first
that L.M. came
parties
in 2001 through the end of the
parties’ relationship.
similarly
Kulstad
functioned in parental
role
day
from the first
that A.M. came to the
in
through
parties’
end of the
relationship. Maniaci repeatedly represented to the
study evaluators, and,
turn,
home
adoption
authorities that she
and Kulstad would raise the minor
family
children as a
unit. Maniaci
also depicted this same familial environment
Rights
to the Human
Campaign
part
of her
adopt
effort to
specifically
A.M. The court
found
parties’
that the
relationship placed the
family
children into a
parents.
same-sex
testimony
Maniaci’s
she had “lied”
study
to the home
evaluators and adoption
proves
authorities
unavailing.
recently
We
rejected similar
by parties
claims
seeking to disavow earlier
representations made regarding the status of a party’s economic or
personal relationship.
Johnson,
LeFeber v.
188, 351
75,
2009 MT
Mont.
209 P.3d
and In re Marriage
Swanner-Renner,
MT
351 Mont.
authorities children’s support Kulstad’s upon relied children. Maniaci Maniaci further needs. developmental and psychological, physical, stable present financial a more wherewithal Kulstad’s upon relied Kulstad, Maniaci’s And authorities. picture adoption financial on her tax consent, dependent L.M. as a claimed knowledge and full from this a financial benefit Maniaci received and returns. Kulstad cannot Service. Maniaci Internal Revenue representation together for and Kulstad lived the fact that she history rewrite in the same raised the minor children years jointly and more than 10 authority to determine discretionary The District Court has household. relationship when child-parent to her contrary acted parent that a Toavs, findings. supports its credible evidence substantial the District supports in the record credible evidence Substantial continually and acted repeatedly that Maniaci determination Court’s child-parent relationship. contrary to her In Loco Parentis MCA, “child-parent that 40-4-211(6), provides Section existed, or in part, that in whole relationship includes a
relationship” seeking to plan party action. The filing of a before provided that must demonstrate she relationship this first establish food, shelter, clothing. by supplying needs ofthe child physical 40-4-211(6), further must demonstrate MCA. The Section education, care, necessary the child with provided she interaction, companionship, day-to-day ‘through basis discipline on a mutuality psychological fulfill the child’s needs for interplay, 40-4-211(6), physical the child’s needs.” Section as well as parent MCA. criteria that Kulstad had met these The District Court determined parent- to and fostered the the fact that Maniaci “consented
through The court Kulstad and the children.” like between Ms. lived facts that Kulstad and the children specifically to the pointed had participated and that Kulstad together in the same household further daily co-parent. The court restriction in their lives as without obligations of significant financial noted that Kulstad had assumed Finally, the compensation. offinancial expectation without parenthood role for a Kulstad had served court found that “a with the children length of time to have established sufficient nature.” bonded, relationship parental dependent Maniaci contends that Kulstad had to demonstrate that Maniaci voluntarily permitted continuously children to remain exclusive care of Kulstad for a significant period of time in order for Kulstad to have a child-parent established relationship. Maniaci fact, argues, in that Kulstad needed to demonstrate that she stood in parentis loco satisfy Maniaci’s children to the requirement of §40-4- 228(4), MCA. Maniaci argues that this Court consistently has interpreted parentis in loco person to mean a who acts as a the exclusion of the natural parent. argues Kulstad’s failure to demonstrate that she in place
“stood
of’ Maniaci
to the minor children renders
irrelevant
question
of whether Kulstad had established a child-
parent relationship. Maniaci
Kabrich,
cites to Peterson v.
213 Mont.
*17
401, 691
(1984),
P.2d 1360
Howell,
and Niemen v.
471,
234 Mont.
764
(1988),
P.2d 854
to support her claim that this Court
recognized
has
in
parentis
loco
only
status
when a party stands in place of the natural
parent. Both cases focus on whether monetary transfers between adult
relatives should
gifts
be treated as
or loans. Both cases discuss in loco
parentis
only
status
incidentally
analysis.
to the main
And neither
case restricts in locoparentis status
nonparent
to a
serving
parent
as a
to a child to the exclusion of the
parent.
natural
The widow of the adult nephew
in Peterson claimed that certain
monetary transfers made by the aunt to the adult nephew had been
gifts and thus should not
subject
be
to repayment. The widow claimed
that an in
parentis
loco
status existed between the aunt and her adult
nephew in order
support
to
a presumption that the aunt had intended
the transfers to
gifts.
be
The
rejected
Court
this claim where the
evidence indicated that
the relationship had been limited “to
occasional visits and
exchange
the
of letters and
gifts.”
Christmas
Peterson,
408,
father of her deceased husband had parentis assumed loco status as
534
money
substantial amounts
repaying
her effort
avoid
part the
argued
step-father
The widow
step-father.
advanced
obligations
incident to
responsibilities and
“accepted
had
475,
Niemen, Mont. at
764 P.2d at
The Court
relationship.”
[ ]
record
rejected
grounds
this claim on the
“no evidence
’’ Niemen,
at
fact
doctrine of its conclusion Kulstad rely need not standing proceeding. upon had commence We light legislature’s facto in of decision to parenting de doctrine to allow amend the statutes for a to be child-parent relationship awarded to a could establish a who engaged the child when the natural had with conduct relationship. 40-4-228(2)(a)-(b), contrary child-parent Section continuing The District found that Kulstad’s MCA. Court the minor be children’s best interests and with children would substantial evidence in the record the District supports Court’s finding. Convincing Relationship
Clear and Evidence of Child-Parent that, Maniaci further assuming contends even for the sake of argument children, that Kulstad parentis stood loco to the minor Kulstad still failed prove convincing clear and evidence that she had established a child-parent relationship. argues Maniaci that §40- 4-211(6), MCA,required provided physical Kulstad to have for the psychological needs of the children before she filed the lawsuit. urges Maniaci the Court to look alleged relationship at the between Kulstad and the children Kulstad commenced this action. before Maniaci disparages self-serving Kulstad’s testimony regarding history child-parent relationship. Maniaci claims that Dr. Silverman only “could attribute some relationship” semblance of a between Kulstad and the children “as far back as six months before imminent, [Kulstad] filed her lawsuit-a litigation time when was after the time get [Kulstad] attempted to Dr. Maniaci to enter into a written agreement custody.” about argues only further brought she forward witnesses could who attest to the nature of Kulstad’s relationship with the children. A district court position sits the best and judge observe
witness credibility and we guess will not second its determination regarding the strength weight of conflicting testimony. In re Horton, Marriage 353, 19, 324 382, 102 2004 MT Mont. P.3d 1276. The District Court received and testimony heard from numerous witnesses, including professionals, mental health the children’s therapists, and the court appointed GAL.This testimony evidence and allowed it to determine that Kulstad had established a child-parent relationship with the minor children. testimony This evidence and further allowed the court to evaluate whether it inwas the children’s best interest to maintain that child-parent relationship. The court acknowledged that the adoption allowed Maniaci to
be the legal parent. exclusive recognized, however, court Maniaci’s actions from the time that the children entered the home entirely had been inconsistent an child-parent exclusive Kulstad, relationship. consent, with Maniaci’s in a parental served role a length bonded, time sufficient to dependent establish relationship with the minor children. Kulstad in parental functioned day role from the first that each of the minor children came to the parties through the end parties’ relationship. Dr. Silverman testified that the children and Kulstad established and maintained
536 Dr. Miller testified that Dr. Silverman and relationship. child-parent
a deny the harm should court irreparable would the children suffer the court’s decision to supports The record time Kulstad. in minor children. In re a interest the Kulstad award Bradshaw, 11. ¶ personal property awarded Kulstad properly the court Whether home. parties’ property
and a the dividing personal in applied equitable principles The court a parties. approved the have district property real between We and the dividing property doctrines in application equitable court’s Woodward, 144, MT in Anderson v. 2009 350 unmarried cohabitants 329, 343, P.3d and LeFeber. Mont. the correctly in Anderson that district court had We determined estate equitable principles properties to distribute two real
applied during eight-year relationship. had their parties that the accumulated Anderson, equitable in used properly 16. district court LeFeber ¶ and property purchased to divide that LeFeber had Johnson doctrines LeFeber, improvements included improved. had Johnson’s ¶ deck, basement, flooring, finishing building installing fencing the the all yard, constructing installing and almost greenhouse, LeFeber, court on the 14. The district had the landscaping property. ¶ the adjustments respective to make between power compensatory “according ordinary LeFeber, 21; principles equity.” ¶ Anderson, approach 16.We used to divide property described ¶ being “similar to that used to divide marital estate in a dissolution LeFeber, great action.” 22. We also noted that the court ‘has ¶ flexibility LeFeber, relief fashioning appropriate parties.” in for the ¶ Similarly 26-27, Kalinyaprak, Flood v. 2004 MT ¶¶ correctly applied equitable Mont. 84 P.3d the district court dividing Flood, an In couple. doctrines the assets of unmarried couple disputed property they unmarried the distribution of had acquired during relationship. Flood, their 10-11. Flood instituted ¶¶ action ended and partition brought after claims, including unjust additional enrichment and constructive trust. Flood, 11. ¶ purchased for the property paid the real and initial money and
property improvements. Kulstad contributed her labor to the house complete improvements construction of the real testimony property. The court determined that Kulstad’s evidence equitable $101,824.43. her to an fair entitled award of The court equitable Sportage an award of the Kia automobile for also allowed significant improving property. Kulstad’s contributions of labor properly equitable The District Court used doctrines divide Anderson, LeFeber, 23; 16; parties’ personal property. and real *20 Flood, “great flexibility”in fashioning Court had 26-27. District ¶¶ ordinary appropriate using relief for Kulstad and LeFeber, 23; Anderson, 16; Flood, principles equity. of ¶ ¶ Affirmed. McGRATH, NELSON, WARNER, CHIEF JUSTICE JUSTICES LEAPHART and COTTER concur. NELSON, concurring.
JUSTICE I concur. attempt Maniaci and her defense team1 to avoid the one issue that in uniquely important-the elephant makes this case the room: whether in an intimate each right homosexuals domestic have the they mutually agree the children that one adopt will conceive).2 (or, presumably, The District Court and this Court have properly question answered that in the affirmative based on the facts statutory of and I agree this case on the scheme discussed. with the decision, District Court’s and I concur with this Court’s decision. however, Sadly, represents yet this case another instance Montanans, which happen gay, fellow who be lesbian or are forced rights they want, to battle for their fundamental to love who to form associations, family intimate to form and relationships, to have and elemental, rights accorded, raise children-all that are hesitation, presumptively thought and without or to heterosexuals. grounded statutory 101 The Court’s decisionis scheme which argued. absolutely convinced, nonetheless, was raised and I remain enjoy that homosexuals are entitled to precisely the same civil and natural rights as heterosexuals as a matter of constitutional I law. extensively wrote on this and on the discrimination homosexuals face daily my special in Snetsinger University concurrence v. Montana System, 38-111, 325 148, 104 (Nelson, 2004 MT Mont. P.3d 445 ¶¶ (counsel), Family Alliance Defense Fund and Montana Foundation and Pacific (amici curiae). Justice Institute 2 say they “attempt” I each to avoid this issue because defense team’s participants point disavowing playing any part in their makes sexual orientation as (a) point involvement not need to if this case-a would be raised sexual (b) were, indeed, implicitly by orientation at here and each of these not issue is belied homosexuality. participants’ opposing foundational beliefs (a) recognize: that this Court should concurring). argued I
J., specially fundamental on deny people their and which policies that laws human violate the inviolable or sexual orientation gender the basis of (b) Constitution; II, 4 of the Montana Article Section dignity clause of or sexual gender on the basis of persons that classifications of therefore, are, arbitrary suspect and and orientation are sex-based (c) analysis; reading Article equal protection under conventional (which approach), I is the II, together 4 and 34 believe better Sections suspect sexual orientation are gender based on that classifications are in addition to those right in their own classifications equal protection in the third clause of this State’s enumerated (Nelson, J., specially concurring). Snetsinger, See 71-97 provision. ¶¶ my concurring Unfortunately, though, opinion. I stand courts, a matter nothing changed. I am convinced that until our has heterosexuals law, equal participants homosexuals as with accept and natural exactly each the same civil society, person in our homophobic continue to suffer rights, gay lesbian and citizens will socially is Regrettably, this sort of discrimination both discrimination. acceptable politically popular. *21 is, Naming it for the evil it discrimination on the basis of
¶103 And, bigotry. an of whether expression sexual orientation is morality, ideology, majoritarian partisan rationalized on the basis of tenets, bigotry. discrimination is still It cannot religious homophobic or justified; legalized; it cannot be it cannot be constitutionalized. be dignity; every is entitled to human Every person Montana privacy; every person in Montana is entitled to individual person happiness ways. in Montana entitled to seek in all lawful These are is II, 4, guaranteed, by Article Sections rights respectively, fundamental Constitution, 10, person may Montana and no be denied 3 of the elemental, rights natural of his or her sexual these because Indeed, will, doubt, some, orientation. while it no come as a shock to gay people excepted the fact is that lesbian and are not out of by gay the Montana Constitution. Lesbian and protections afforded children, fight marry, Montanans must not forced to to raise their be That dignity and to live with the same that is accorded heterosexuals. fight rights still must for their fundamental is gay people lesbian and II and in unfortunate speaks, antithetical to the core values of Article clarity, grounded bigotry cancer and hate. prevalent of a societal Opinion. I concur in the Court’s RICE, dissenting.
JUSTICE Today the Court retreats from its clear declaration of
539 exchange, In the Court rights parents. of fundamental constitutional if a third case-by-case inquiry to determine equitable, an adopts interest of a child that must be balanced granted parental should be open The Court’s decision will parent’s rights. a natural against upon right capable attacks of fit and potential Pandora’s Box of weakening children. of I dissent from this parents to raise their own rights. parental constitutional Rights
A Parent’s Constitutional
recognized
“the constitutional
of a
previously
We have
child,” explaining
right
or her
that this
parent
parent
natural
his
merely
legislative
and is ‘hot
a matter of
requires
protection”
“careful
66, 70,
A.R.A., Mont.
constitutionally required.” In re
277
grace, but is
(1996).
388,
explained
This Court has
that there are few
919 P.2d
the individual that are more extreme
privacy
invasions “into the
of
custody
his children.”
depriving
parent
than that of
a natural
282, 285,
of Doney, 174 Mont.
570 P.2d
Guardianship
In re
(1977).
protected parents against
we have
claims
Consequently,
rights by
holding that “a
repeatedly
adverse to these constitutional
cannot
custody
denied
of his or her child absent
be
neglect...” In
person’s parental rights
termination
abuse or
for
120, 25,
Parenting of J.N.P,
re
2001 MT
305 Mont.
protections promised previous ‘jurisdictional protected parents against which has the prerequisite,” third thereby opens wide the door to such parties, claims of Maniaci, all only against potentially against parents. claims-not but Maniaci, Now, like are capable, even who are fit and third rights for to their potentially subject to the claims of children. conclusion, this the Court misstates or reaching In holdings and previous our constitutional offers what
misunderstands cases, distinguish apparent for the faulty grounds I believe are those diminishing rights previously the reach the constitutional purpose of of decisions, our the Court offers parents. pre-1999 declared for About rights, “pre-1999 that the statutes made termination of based abuse, neglect, only option available to the upon dependency, interest,” citing a custodial nonparent Court before it could award a added). (emphasis contrary, in To the it support. Opinion, A.R.A. ¶ party against parents that limited third claims in was not statutes cases, rights A.R.A. held that parents. those but the constitutional of very reason that it pre-1999 a statute was unconstitutional a a custodial permitted party right third to be awarded before 72, 919 P.2d A.R.A., 277 Mont. at parents’ rights had been terminated. (‘[Section]40-4-221, MCA, to the at 392 is unconstitutional extent that a granting petition prior it allows the of to the termination of §-221 parent’s rights.”). the natural constitutional As stated we when J.N.P., striking subsequent [was] down statute “A.R.A. based on added). J.N.P., (emphasis Contrary constitutional considerations.” analysis, pre-1999 to the Court’s it was not the statutes that limited the claims of third the Montana parties, but Constitution. similarly displaces holding Court of our 2001 decision J.N.P., stating party rely that the third claimants there “couldnot custody J.N.P., however, upon nonparental seeking statutes in light statutory of their failure to comply pre-requisites establishing child-parent relationship through petition first filed 40-4-211, However, under Opinion, MCA.” 63. the third § ¶ §40-4-211, J.N.P., claimants in a petition J.N.P. did file under MCA. 22. rejected, failing satisfy “statutory Their claim was not for ¶ (similar statutory case), pre-requisite” pre-requisite in this but parents’ because the constitutional superior were statute: “a custody natural cannot be denied of his or her child absent termination of that person’s parental rights neglect for abuse or ....” J.N.P., Thus, we struck it down because suffered ‘from ¶ §40-4-211 infirmity the same constitutional as the statute we invalidated J.N.P., case of In re A.R.A.” ¶ 111 The holding Court dismisses the constitutional basis for our the ground grandparent
Polasek on that the visitation statute at issue there Legislature explicitly was “different” because here the has necessary” that it for a provided is ‘hot to be found unfit awarding parental party. Opinion, before interest to a third
541 visitation Polasek, grandparent mere permitted the statute 69. In the wishes failure to consider claims, yet held that the statute’s and we Here, Polasek, as we unconstitutional. parent ¶¶ of a fit was child, of a the Court claim to interest party’s aparental a third consider need unfitness parental determination Legislature’s bows to the sequitur a and its retreat reasoning The Court’s is non not be shown. Legislature legislate to principle permitted has from constitutional of existence.1 rights Maniaci’s constitutional out to dismiss the goes great lengths to Although the Court decisions, clearly stand for our these decisions constitutional basis for custody denied of his parent that “anatural cannot be proposition parental rights ....” person’s or her child absent termination of added). view, the Court’s effort to J.N.P., my In (emphasis 25¶ and does not diminish the distinguish previous holdings our is flawed clearly declared. rights constitutional we have Constitutionality §40-4-228,MCA The struck down two similar statutes as previously We have a interest failing require parent’s to termination of unconstitutional A.R.A., 277 Mont. at invading parent’s rights. a constitutional before to the (stating at the statute was “unconstitutional 919 P.2d 392 - granting petition prior that it of a 221 extent allows § rights” by parent’s termination of the natural constitutional (The J.N.P., abuse, neglect, prior establishing dependency); ¶ 40-4-211(4)(b) “suffers from the same constitutional version of § A.R.A.”). case of In re infirmity as the statute we invalidated states, §40-4-228,MCA, Legislature The has enacted which pertinent part:
(2)
a
interest to a
other
may
person
A court
award
that,
cases,
parties sought
prior
also states
in our
third
to “terminate
Court
custody
parental rights”
parent
natural
in order to secure
of a child ‘to the
so,
Opinion,
expressly saying
parent.
the Court
exclusion” of the natural
appears
contemplate
56. Without
imply
subject
less
because it does not
statute is
invasive
complete taking
parents’ rights
and the
termination of the
However, first,
custody
away
parent.
the third
in our
of a child
from a natural
interests,
they sought
prior
parents’
the termination of
but rather
cases did not seek
custody
why
That is
we invalidated the statutes.
obtain
without such termination.
A.R.A.,
Secondly, §40-4-228, MCA,
permit
does
than a natural when that; evidence
(a) contrary in conduct that is engaged the natural has relationship; the child-parent (b) child-parent the child a has established with nonparent 40-4-211, defined interests and it is best relationship, as relationship. continue that of the child to * * *
(5) a natural necessary It for the court to find is not *24 awarding interest to a third under unfit before this section. liberty First, implicates right. a fundamental ‘The this statute care, interest of
interest at issue in this case-the
the oldest of the
custody,
perhaps
and control of their children-is
liberty
recognized by
fundamental
interests
this Court.” Troxel v.
(2000).
Granville,
57, 65,
2054,
Thus,
U.S.
120 S. Ct.
2060
this
530
(We
Polasek,
subject
scrutiny
apply
statute is
to strict
review.
15¶
scrutiny”
“any infringement
person’s right
parent
“close
child.”).
on a
statute,
invalidated,
prior
This
like the
statutes we have
constitutionally
natural
protected
parent-child
invades
requiring
parent’s
without first
termination of the
provide
protection
interests. This statute thus likewise fails to
“constitutionally
A.R.A.,
parental rights
required,”
that is
277 Mont.
70,
Ill.,
645,
(citing Stanley
at
flawed for several reasons. with our above, declaring parents, the constitutional discussed up validity Court takes the issue of the statute’s in a constitutional vacuum, vacuum, guiding as if there is no fill precedent. To Legislature’s expression Court looks to the of what the Constitution requires, deferring Legislature’s interpretation. constitutional However, Opinion, purview it is the of the courts to ¶¶ rights, determine the existence and nature of constitutional not the Legislature’s. duty. Lacey, The Court thus fails to do its In re (‘TT]he (1989) 321, 326, judiciary Mont. 780 P.2d has ....”). authority interpretation over the of the Constitution Secondly, explaining the Court offers no rationale how a third overcome, child constitutionally, can a fit party’s relationship with analysis It no about the child. offers right to raise capable parent’s can requirement fitness elimination of the Legislature’s how the simply declares scrutiny. The Court strict withstand declaration of constitutional this Court’s trumps will Legislature’s rights. constitutionality by offering defends the statute’s The Court infirmity avoid constitutional statutes nonparental “Montana’s thresholds of the twin through standard the Troxel
under
the need to first
the wishes of the
consideration of
However, Troxel
Opinion, 71.
relationship.”
child-parent
establish a
explicitly
Court
declined
Supreme
The U.S.
question.
did not reach this
that a
requires
the U.S. Constitution
question
of whether
to reach
rights can be
parent’s
child before the
allow harm to the
(TW]e
do not
Troxel,
at
¶120 argues that The Court first states that Maniaci defending the statute. a constitutionally protected rights, absent her children ‘have no That is abuse, Opinion, showing neglect, dependency.” of ¶ but, rights that her children have no argue incorrect. Maniaci does not the rather, by this Court and rights precisely that those are as stated then offers that the statute is valid Court. The Court Supreme U.S. the constitutionally protected rights of both it balances “the because child,” interests of the determining in the best parents and children I rights of either are. fails to state what the Opinion, but by declared constitutional explained have above the Similarly, explained this Court has this Court. “to with his or
constitutionally right of a child is be protected (citing at 391 A.R.A., Mont. at 919 P.2d parent.” J.N.P., 17. This 1213); see also at 92 S. Ct. at Stanley, 405 U.S. her own to raise his or right right parent to the ofthe companion is the the child right weighs child. This constitutional favor of the parent’s rights. stated, I For the reasons above would strike down the statute.
¶121 §40-4-228, Proper Interpretation MCA going parent’s right away “Acourt is never to take a without significant period just disregard absolute and abandonment [of] their children.”
Sponsor, Statutory Amendments §40-4-228, MCA, assuming argument purposes Even constitutional, is valid and a proper reading ofthe statute and a review legislative history of its reveals that it provide was not intended to granted relief to Kulstad the District Court. It necessary repeat Ti]n should not be construction statute,
of a judge simply office of the is to ascertain and declare what is in therein, terms or substance contained not to insert what has been 1-2-101, omitted or to omit what has been inserted.” Section However, MCA. very thing-it here the District Court did that inserted new language into the statute. The Court affirms the error. 40-4-228(2), MCA, Section provides may that a court award “(a) nonparent to a when the natural has engaged in conduct contrary that is to the child-parent relationship; (b) nonparent child has established with the a child-parent ....’’Thus, plain reading provision ofthis establishes two (conduct requirements, part one on the of the natural contrary child-parent to the relationship), and one on the part ofthe third party (establishment of a child-parent relationship). 228(2)(a) However, in applying provision Maniaci,
District Court provision concluded that was satisfied because engaged contrary conduct to “an child-parent exclusive relationship” with her children. Unable to hold from the evidence that Maniaci had acted in any way “contrary child-parent relationship,” reads, as the statute actually the District Court was forced to add language to the statute-imposing judicially-created “exclusive”requirement-in order to conclude that provision been satisfied. The District Court’s conclusion of law should be reversed statute,
because “exclusive”is not in the beyond and it is the proper role of the District Court language. affirms, to insert that The Court discussing length at the evidence that Maniaci did not exclude all others child-parent relationship from a with the children. The Court *26 states that repeatedly continually ‘Maniaci contrary acted to her are facts it cites only supporting relationship,” but child-parent child-parent contrary to an exclusive acted showing that Maniaci those why Further, explain fails to the Court relationship. Opinion, child-parent Maniaci’s contrary to inherently non-exclusivity is reasoning here Court’s Critically, the her children. relationship with exclusively on, does not that, parent a who from now demonstrates to her challenge to a third opens child the door rights. is interpretation in the Court’s illustrating the error Further into statutory requirements separate the two resulting collapse of a parent-child to establish allowing Kulstad If Maniaci’s action one. relationship with the Maniaci’s contrary to relationship is conduct 228(2)(a) (2)(b) separate cease be children, then subsection 2(a). 2(b) Thus, automatically satisfies Satisfaction of requirements. a parent-child has established Kulstad only question is whether require I would not plain language, statute’s relationship. Applying the relationship. “exclusive”parent-child satisfy conduct an that Maniaci’s Amendments Further, history of the 1999 legislative Legislature order is not what that the District Court’s illustrates Halligan explained Senator introducing §40- In SB intended. area,” explained which he 4-228, MCA, “narrowly defined dealt with emphasized He doing job.” their biological parents are not was “where “very narrow.” He further the statute was closing remarks that ‘in loco person to stand provision allowing that the another explained (subsection 228(4)), where child, is for those situations to a parentis” way appropriate.” themselves in a that’s “parent has not conducted gone are for a “parents included cases where Examples hearing contact, no no years”-with support, ‘ho child long time”—Touror five discussion, asked what the During sponsor was anything.” acted determining if a would be for standards included this in his answer: sponsor and the inappropriately, away parent’s right take a without going A court is never for disregard and abandonment significant period just absolute children.2 their demonstrate that Maniaci utterly here fails to The evidence way in a [herself] had failed to doing job,” [her] ‘hot
was “conductG children, long time”from her gone been for appropriate,”‘has that’s contact, anything” no support, child no left her children with ‘ho Judiciary hearing, recording, SB Committee and audio 1999 House See minutes *27 years, engaged significant period just four or five for “a of absolute disregard Yet, and abandonment” of her children. these are the kind Legislature of situations the by intended to address the 1999 Amendments. The Court’s failure to the apply plainly statute as grave interpretational written results in a error. Consequences the Court’s Decision of emphasis case, From its on the facts of this it apparent is that
the Court has found
factually
Kulstad’s case to be
compelling, as did
Court, and, thus,
the District
has ruled in her favor. But the Court has
not acknowledged
significance
the
of the most fundamental facts of
this case:
parent,
Maniaci is a
and Kulstad is not. This distinction
involves much more than semantics.
recognize
The Court fails to
clearly differing legal rights arising out of this critical distinction
parties,
between the
and that failure leads to consequences
go
that
far
beyond the
particular
resolution of this
custody dispute.
child
Kulstad,
has,
To hold for
remarkably,
the Court
withdrawn or
previously
narrowed
recognized
parents.
constitutional
of fit
It
‘jurisdictional
has removed the
prerequisite” of termination of the
natural parents’ rights,
a
upholding statute that
party
allows
third
to establish a
interest of a
though
child even
that child
already has a
parent.
fit
consequence
While
initial
of this decision
upon
litigants
case,
falls
in this
consequences
geometric
proportion will fall in the
upon many
future
fit parents. The Court’s
withdrawing of
protection
constitutional
against
party
third
parenting
claims
permit many
will
proceed,
claims to
formerly
which
would have
legally
been
barred. Fit and capable parents will now be forced to
against
defend
parties’
such third
sure,
claims. To be
many of these
factually
claims will be
weaker than
claim,
Kulstad’s
and will no doubt
Nonetheless,
fail.
parents will
forced
against
be
to defend
them. The
Supreme
U.S.
Court
recognized
has
that “the burden
litigating
domestic relations proceeding can itself
disruptive
be so
of the parent-
child
right
constitutional
of a
custodial
make certain basic determinations for the child’s welfare becomes
implicated.” Troxel,
(citation
only be noted that other raising very cases these already issues are pending before this Court. In In re Parenting of J.D.B., 08-0505, DA course, right Of Maniaci has now lost her to make “certain such basic litigation. determinations” for her children as a result of this a third uncontested, defending against is mother, is whose fitness mother-in-law, who has by claim to her children party dissent, by upon relied Citing precedent children. cared for the parties seek third briefing “[w]here in her argues the mother right that the of Montana the law custody, long it has been right.... of this showing of a forfeiture until a parent prevails natural does not conduct parent’s only can result where This forfeiture abuse, neglect and minimum of the child standards meet made this dissent argument statutes.” This is dependency In re make. See also would lawyer studying precedent our any (A that a third argues mother DA Parenting of L.F.A., 08-0456 children absent interests in the “may simply acquire not rights.”). mother’s] constitutional [a deference to significant legacy A of this decision many more such cases. There will be protect in order to litigate forced to who will be legion parents is the *28 single them. A guaranteed to that the Constitution once rights relationship will a new romantic consider whether parent must now by way of a future her or his children right jeopardize argued As claim. Other like situations abound. party parenting third in L.F.A.: by Appellant of a children in the care at times leave their
Many parents will the child. to watch they when are unable non-parental partner a child nanny families a who cares for might have More well-off children will infrequently children of from their birth. Not or set every Is parents. than even their own caregivers closer to these be relative, or grandparent professional boyfriend, girlfriend, they have parenting rights just because caregiver to be entitled the child? cared for may well as well. This case consequences There will be further couples. victory rights for the of same-sex reported legal as a
be a gender is not parties’ sides have stated that Because both has case, the Court nor this dissent issue in this neither determinative go beyond far ofthe decision Regardless, implications discussed it. There are at issue here. particular parties gender the kind decision that limit in neither the statute nor this parameters subject to that will be now relationships or number decision, protection claims. Before parent’s of a required termination rights, constitutional which necessarily, by party, interest to a third granting before laws, limited a child the number of biology adoption and the removed However, limits have now been those inherent could have. Consequently, the Court.4 what if three or partners develop four adult “parent-child relationship” Multiple-party with child? clusters children, raising polyamorous ‘families,” are the next wave in Only relationship experimentation. Bennett, societal See Jessica You. Multiple. Mutually And You.And You.: Polvamorv-Relationshins Consenting Coming-out Party Partners-Has a (July Newsweek . 2009)(available online at http://www.newsweek.eom/id/209164/page/l); Spouse Enough. James, Susan D. When One Isn’t ABC Polvamorv: (June 2009) (available News online at http://abcnews.go.com/Health/US/Story?id=7870884&page=l). While may it be at least little while before a trial court concludes that such interest, claims are in a child’s best claims multiple parenting arising interests out of such communal living arrangements are now legally possible, making them inevitable. The abandonment of principle constitutional expediency today’s long, decision will have far-reaching negative impacts.
I dissent and would reverse the District Court. *29 prohibited adopting adoption laws, Kulstad was from the children under the but prohibition argument the Court has not held that this barred Kulstad’s claim. That was made an amicus curiae.