July 10, 2013
IN RE PARENTING OF C.T.C., f/k/a C.T.E-H, TRACY MARIE CUMBER, Petitioner,
MONTANA SEVENTEENTH JUDICIAL DISTRICT COURT, VALLEY COUNTY, THE HONORABLE JOHN C. MCKEON, presiding, Respondent.
Tracy Marie Cumber has petitioned for a writ of supervisory control over litigation pending before the Seventeenth Judicial District Court, Valley County, denominated In Re The Parenting of C.T.C, f/k/a C.T.E-H, Karen Higgins v. Tracy Marie Cumber, No. DR-10-30. We granted Respondent Karen Higgins time to file a response, which has now been filed.
This litigation involves a child, C.T.C., who is now 10 years old. His birth parents are Tracy Cumber (Tracy) and Steve Higgins (Steve). C.T.C. has been the subject of previous appeals before this Court. See In Re the Paternity of C.T.E.-H., 2004 MT 307, 323 Mont. 498, 101 P.3d 254 (C.T.E-H I); In Re the Paternity of C.T.E-H, 2007 MT 255N, 340 Mont. 377, 175 P.3d 303 (C.TE.-HII). Steve was designated as the primary residential custodian of C.T.C, with visitation rights granted to Tracy. C.T.E.-H II, ¶f 3. Steve married Karen Higgins (Karen). Steve passed away on October 15, 2009. Shortly thereafter, the Fergus County District Court designated Tracy as C.T.C.'s primary residential custodian, and C.T.C. moved to Glasgow to reside with Tracy and her family in 2009. In 2010, Karen filed a petition for visitation, which is now pending before the Valley County District Court and from which the instant petition for supervisory control arises. C.T.C. was adopted by Tracy's husband, Randy Cumber, in 2012. C.T.C. has participated in no court-ordered visitation since November 2009, and apparently opposes commencing visitation.
Tracy moved for summary judgment on Karen's petition for visitation. The District Court denied the motion and set the matter for trial on the issue of whether the requested visitation would be in C.T.C.'s best interests. Tracy asserts the District Court is proceeding under a mistake of law by applying the incorrect legal standards. She argues that, by applying only a best interest test, the District Court failed to apply constitutionally mandated protections in favor of parents regarding visitation. She challenges the District Court's conclusion that "a nonparent seeking visitation rights only does not need to acquire a 'parental interest, '" and the court's reliance on Grice v. Price (In re A.P.P.), 2011 MT 50, 359 Mont. 386, 257 P.3d 130. She argues that the District Court's distinguishing of a request for "visitation" from a request for a "parental interest" results in a deprivation of her parental constitutional rights by mere use of terminology.
Tracy raises constitutional and interpretational issues with regard to the custody statutes and our decision in Grice. However, we cannot conclude that the District Court is now proceeding under a mistake of law. The District Court carefully considered Tracy's arguments and applied our precedent to resolve them. Tracy has an adequate remedy of appeal to raise these issues should she be dissatisfied with the ultimate outcome of the proceeding. Therefore,
IT IS HEREBY ORDERED that the petition for writ of supervisory control is DENIED and DISMISSED.
The Clerk is directed to mail a copy hereof to counsel for Petitioner Tracy Cumber, counsel for Respondent Karen Higgins, and the Honorable John C. McKeon, District Judge.