PRIMARY WITH MOM IN MONTANA IF SHE MOVES BACK, PRIMARY WITH DAD IN MONTANA IF SHE DOESN'T

Dad and Mom live together in Missoula with their 1 year old child. They never marry. Dad works long hours. Mom stays home with child. Mom came to Missoula from Ohio to obtain her college education. Mom returns to Ohio to attend her sister's wedding in March, 2013. She says she will come back after the wedding, then does not. She makes a series of excuses for her failure to return. After a month in Ohio Mom tells Dad she's staying in Ohio.

Dad files a parenting plan action in Missoula. The standing master orders Mom to return with their child to Missoula by July 22 and Dad to both purchase a plane ticket for Mom and child -- and to move out of their former joint home so Mom would have a place to stay. Dad gets the plane tickets. Mom doesn't come. There is a telephonic hearing on July 25. Mom could not be reached.

Mom files a parenting action in Ohio and moves the Missoula Court to defer to Ohio claiming inconvenient forum. After an evidentiary hearing in Ohio, Ohio court dismisses for lack of jurisdiction under the UCCJEA. In February, 2014, 11 months after Mom's move to Ohio, the Missoula Court holds a hearing. Dad asks for primary care, but states no objection to Mom having primary care if she returns to live in Missoula.

District Court rules that the child will be in Dad's primary care unless Mom returns to live in Missoula, in which case Mom will enjoy primary care. The Court finds both parents competent and the best interests of the child factors do not strongly favor either parent. But the District Court found that Mom lied to Dad about returning to Montana and made no effort to tell their child about Dad or otherwise foster a relationship between Dad and the child. The Court found that Mom's constitutional right to travel was outweighed by 1) Dad's right to regular contact and 2) the child's right to an on-going relationship with Dad.

Mom appeals. Supreme Court affirms, distinguishing In Re D.M.G. 1998 MT 1, which reached the opposite conclusion.

1. The freedom to travel is a fundamental constitutional right that can only be restricted by a compelling state interest.
2. Best interests of a child can be a compelling state interest.
3. Trial courts are prohibited from "any presumption that the moving parent is acting against a child's best interest simply because he or she changes her residence in a manner that significantly affects the child's contact with the other parent." See ¶17. 
4. This case however, turned on 212(l) which concerns whether the child has frequent and continuing contact with both parents. Although the District Court did not cite this best interests factor, it did make specific fact findings that clearly pointed to this factor. The essence of this decision was that if the child did not live in Missoula, the child simply would not have much of a relationship with dad.
5. The Supreme Court noted that although this was not an amendment case, that "a parent's decision to move may be considered against the best interests of a child if the parent's decision "exemplifies a 'willful and consistent' attempt to frustrate or deny" contact between the child and his or her other parent. The District Court found such attempts present here." That factor appears in Section 40-4-219 (1)(d) MCA. See  ¶20 for the quotation. 

This is the second opinion from the Montana Supreme Court since the 1st of the year in which the case turned on mom's failure to encourage the child's relationship with dad. See Marriage of Marez 2014 MT 333

Here are the central quotations from the opinion.

"¶12 The freedom to travel throughout the United States, and "to migrate, resettle, find a new job, and start a new life," has long been recognized as a fundamental constitutional right. Shapiro v. Thompson, 394 U.S. 618, 629-31, 89 S. Ct. 1322, 1328-29 (1969), overruled on other grounds by Edelman v. Jordan, 415 U.S. 651, 671, 94 S. Ct. 1347, 1360 (1974). The exercise of this fundamental right may be restricted only by a compelling state interest. Dunn v. Blumstein, 405 U.S. 330, 339, 92 S. Ct. 995, 1001 (1972); In re Marriage of Cole, 224 Mont. 207, 213, 729 P.2d 1276, 1280 (1986).

¶13 Such a compelling state interest may be found in "furtherance of the best interests of a child, by assuring the maximum opportunities for the love, guidance and support of both natural parents . . . ." Cole, 224 Mont. at 213, 729 P.2d at 1280. A custodial parent "is entitled, to the greatest possible extent, to the same freedom to seek a better life for himself or herself and the children as enjoyed by the noncustodial parent." Cole, 224 Mont. at 213, 729 P.2d at 1280. This freedom is qualified, however, by "the state's interest in protecting the best interests of the child and the competing interests of the [Page 7] noncustodial parent." Cole, 224 Mont. at 213, 729 P.2d at 1280. Thus, in cases implicating a parent's exercise of his or her fundamental right to travel, "it is the court's task to attempt to reconcile the interests of both parents with the best interests of the child." Cole, 224 Mont. at 213, 729 P.2d at 1280.

¶14 A restriction on a parent's fundamental right to travel must be imposed cautiously and only where there is sufficient proof that the restriction is in the best interest of the child. D.M.G., ¶ 22; Cole, 224 Mont. at 213, 729 P.2d at 1281. The parent seeking the restriction must provide "case-specific proof" that the restriction is in the child's best interest: that is, "legitimate, case-specific reasons and evidence pertaining to the particular child," rather than "general discussion" about the effects of relocation on children of separation or divorce. D.M.G., ¶¶ 24, 30.

19 The District Court did not enter a specific finding with respect to the child's frequent and continuing contact with both parents. Section 40-4-212(1)(l), MCA. The District Court did, however, enter several findings clearly pertaining to this factor. The District Court found that Pirkle refused to bring the child to Montana when ordered by the court to do so, despite Collie agreeing to pay the cost of travel. The District Court found that Pirkle made no efforts to foster a relationship between Collie and the child, and did not explain to M.C. that Collie is her father or encourage her to talk to him. The District Court found that Pirkle had no pictures of Collie in her home and had not given any pictures of M.C. to Collie. The District Court concluded its findings by saying, "despite the Mother's claim that she wants the Father to have a relationship with his [[Page 11] daughter, there have been no active efforts on the part of the Mother to foster ties between Father and daughter."


¶20 The findings here are in significant contrast to the circumstances present in D.M.G., ¶ 26, where the district court found that "[father] visits the children to the extent he is able and remains involved in their lives; and [mother] has not interfered in his efforts." Here, the District Court found that Pirkle had significantly interfered in Collie's ability to remain involved in M.C.'s life after her move to Ohio by not exchanging photos, not talking to M.C. about her father, and refusing to travel to Montana with M.C. even when such travel was court-ordered and paid for. This is the kind of "case-specific proof we required in D.M.G., ¶ 30. Although in this case we address an initial parenting plan, rather than the amendment of a parenting plan, we also find instructive our statements in Guffin II, ¶ 33, that a parent's decision to move may be considered against the best interests of a child if the parent's decision "exemplifies a 'willful and consistent' attempt to frustrate or deny" contact between the child and his or her other parent. The District Court found such attempts present here. The record before the District Court demonstrated that Collie was the parent most likely to facilitate frequent and continuing contact with the other parent. It was therefore appropriate for the District Court to order that, if Collie and Pirkle remained in a long-distance parenting situation, it would be in M.C.'s best interests for Collie to become the primary residential parent. See In re Chamberlin, 2011 MT 253, ¶ 24, 362 Mont. 226, 262 P.3d 1097.

(Bold emphasis added).

In Re Parenting of M. C. 2015 MT 57