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In re Parenting of L.R.S.

Supreme Court of Montana

March 20, 2018

IN RE THE PARENTING OF: L.R.S.
v.
AUSTIN SCHWARZ Respondent and Appellee, VICKI RAE SCHWARZ and QUENTIN GOTFRIED SCHWARZ, Petitioners and Appellees, KRISTY BROCKWAY, Respondent and Appellant.

         APPEAL FROM: District Court of the Sixth Judicial District, In and For the County of Park, Cause No. DR-16-101 Honorable Jon A. Oldenburg, Presiding Judge

          For Appellant: Karl Knuchel, Aaron Brann, Karl Knuchel, P.C., Livingston, Montana.

          For Appellees: Jami Rebsom, Jami Rebsom Law Office, P.L.L.C., Livingston, Montana.

          OPINION

          Laurie McKinnon Justice

         ¶1 Kristy Brockway, mother of minor child L.R.S., appeals from an order of the Sixth Judicial District Court, Park County, granting Vicki Rae Schwarz and Quentin Gotfried Schwarz, L.R.S.'s paternal grandparents, visitation. We reverse and remand for further proceedings.

         ¶2 We restate the issue on appeal as:

Absent a consideration of whether the minor child's mother was fit, did the District Court err in awarding visitation, pursuant to § 40-4-228, MCA, to the child's paternal grandparents over mother's objection?

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶3 Kristy Brockway (Mother) and Austin Schwarz (Father) are L.R.S.'s parents. Mother and Father divorced when L.R.S. was a baby, and as part of their dissolution proceeding stipulated to a fifty-fifty parenting schedule. After the parties separated, Father lived with his parents, Vicki and Quentin Schwarz (Grandparents), and, accordingly, L.R.S. also lived with Grandparents during Father's parenting time. Father's brother, Tristan Schwarz, lived with Grandparents as well. Both Father and Tristan struggled with chemical dependency and addiction issues.

         ¶4 When Father's dependency problems came to light, Mother and Grandparents became concerned with Father's ability to parent L.R.S. Eventually, Father began an out-of-state inpatient treatment program and the District Court ordered that any contact between Father and L.R.S. needed to be approved by L.R.S.'s counselor. Grandparents remained close with L.R.S. and worked with Mother to facilitate visitation. The parties' relationship became strained, however. Mother did not want Tristan around L.R.S. and further requested that Grandparents not discuss Father with L.R.S. Instead, she requested that Grandparents redirect any of L.R.S.'s questions about Father back to her. Mother observed that her instructions were not being followed, as L.R.S. had contact with Tristan and Grandparents discussed Father with L.R.S. Thus, Mother was no longer comfortable with L.R.S.'s contact with Grandparents and stopped allowing visitation.

         ¶5 Grandparents subsequently filed a petition in District Court, seeking visitation with L.R.S. After a hearing, the District Court issued an order awarding Grandparents visitation pursuant to § 40-4-228(3), MCA, finding that visitation with Grandparents was in L.R.S.'s best interests as analyzed under § 40-4-212, MCA. Mother appeals that order.

         STANDARD OF REVIEW

         ¶6 We review a district court's interpretation and application of statutes for correctness. Polasek v. Omura, 2006 MT ...


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