In this аppeal, the mother of a minor child challenges the denial of a petition for modification of custody. Asserting that the district court abused its discretion, the mother maintains that the child’s preference to live with her mother instead of her father was. not given appropriate weight. The district court ruled, despite the child’s strong preference, that there was no material or substantial change in circumstances warranting a modification of legal custody.
We affirm.
I. ISSUES
Appellant, the mother, presents the following issue:
Whether the district court, though apparently contemplating the prefеrence of [KB], failed in its final order to acknowledge and give the appropriate weight to her wishes thereby abusing its discretion and entering an order which is clearly erroneоus, manifestly wrong, and totally against the evidence?
Appellee, the father, rephrases the same issue:
Whether considering all the evidence as a whole there were any changes in circumstances regarding custody of [KB] which the triаl court failed to recognize or ignored thereby abusing its discretion.
II. FACTS
Richard Blevins, formerly known as Richard Smith (hereinafter Richard), and Martha Elaine Mulkey-Yelverton, formerly known as
On August 11,1992, Martha filed a petition to modify the divorce decree, seeking custody of KB. Martha asserted KB’s desire to live with her was one of several alleged substantial and material changes of circumstances justifying a modification of custody. The district court found that it was in KB’s best interest to remain in the legal custody of her father. The district court, however, clarified ambiguous visitation provisions set out in the original divorce decree and established a child support obligation to be paid by Martha.
On May 6, 1993, Martha filed a petition to modify the amended divorce decree, again seeking custody of KB. Martha asserted KB’s continuing desire to live with her as support for the change in legal сustody. Testimony at a hearing on the petition indicated that KB’s desire to live with her mother was obsessive. KB called her mother several times a day, often talking to her for hours at a timе. Declining scholastic performance was also attributed to the time and effort KB exerted in establishing a stronger relationship with her mother.
Testimony at the hearing also indicatеd that in the ten years following her divorce, Martha had made little effort to maintain a relationship with her children. She contacted KB briefly in 1986, but was otherwise absent from her life. Richard maintained that given Martha’s past history with KB, a change in custody would not be in KB’s best interests. Richard also testified that a change in custody would have a detrimental effect on the closе relationship KB had with her older brother.
After reviewing all of the evidence, the district court determined that Martha had failed to establish that a material change of circumstances had occurred. In its opinion letter, the district court noted KB’s intense desire to live with her mother and strongly recommended that Richard allow KB to live with Martha for a year. On Septеmber 9, 1993, the district court filed an order denying the petition to modify legal custody.
III. DISCUSSION
The district court exercises broad discretion in decisions involving the modification of custody.
Love v. Love,
Martha attempts to identify a dichotomy between the district court’s recommendation to Richard that KB be allowed to live with her mother for a time and the district court’s decision denying a modification of custody. Martha argues that the district court recognized in its opinion letter that there was a distinct possibility of harm to KB’s well-being unless she was allowed to live with her mother. The district court stated:
[T]he Court would strongly recommend to [Richard] that he allow his daughter to live with her mother, at least for this year. [KB] is an endearing and remarkable individual. Her obvious intelligence, good sense, sweetness and maturity was exceeded only by her sorrowful yearning for her mothеr.. This is a yearning so intense as to be unhealthy, presenting the distinct possibility of material harm if not satisfied. If [KB] were allowed to live with her mother, the Court is confident of her abilities to handle the situation.
Despite this recommendation, Martha contends the district court failed to acknowledge KB’s strong preference in deciding that there was no material change in сircumstances. We disagree.
The party seeking to modify the provisions of a child custody decree bears the burden of demonstrating that a substantial or material change of сircumstances has occurred subsequent to the entry of the exist
We hold that the district court follоwed proper procedure and gave serious consideration to KB’s expressed preference to live with her mother.
Love,
In reaching its decision to deny the petition, the district court also considered testimony about other influences on KB’s welfare and whether there had been a substantial change in those circumstances. The district court considered KB’s maturity and her motivation for wanting to live with her mother. Furthermore, the district cоurt addressed concerns about Martha’s past neglect in maintaining a relationship with her daughter. Finally, the district court considered the undesirability of separating KB from her brother. In evaluating these various factors, the district court determined that Martha had failed to establish that a substantial change in circumstances had occurred.
Roberts,
The district court has many faсtors to consider in making its decision regarding custody of a minor child.
See
Wyo.Stat. § 20-2-113(a) (1994). The person granted legal custody is charged with a responsibility for the care, control and maintenance of that child at all times; in other words, serving the best interests of the child.
Curless v. Curless,
The district court had a difficult decision to make. The impassioned plea of KB to live with her mother had to be balanced against the security and guidance that had resulted in her capable upbringing. The district court arrived at a decision in the best interests of KB.
Goss,
Richard also requests that he be awarded attorney’s fees and costs for this appeal. This court may award attorney’s fees “[i]f the court certifies there was no reasonable cause for the appeal * * W.R.A.P. 10.05. Awards of fees and damages under W.R.A.P. 10.05 are not appropriate where a discretiоnary ruling of the district court is questioned.
Smith v. Smith,
IY. CONCLUSION
A child’s preference to live with one parent is a factor to be considered in petitions to
Affirmed.
