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In re Parenting of A.H.

Supreme Court of Montana

May 21, 2019

In re the Parenting of A.H., A Minor Child,
TIFFANY P. WHELAHAN, Respondent and Appellant. EDWARD "JIMMY" HAERR, Petitioner and Appellee,

          Submitted on Briefs: April 3, 2019

          APPEAL FROM: District Court of the Sixth Judicial District, In and For the County of Park, Cause No. DR-15-156 Honorable Brenda Gilbert, Presiding Judge

          For Appellant Jami Rebsom, Jami Rebsom Law Firm, P.L.L.C., Livingston, Montana

          For Appellee Courtney Jo Lawellin, Attorney at Law, Livingston, Montana


          Dirk Sandefur Justice

         ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

         ¶2 Appellant-Respondent Tiffany P. Whelahan (Mother) appeals the judgment of the Montana Sixth Judicial District Court, filed October 4, 2018, imposing a parenting plan that provided for alternative primary residential custody schemes contingent upon her choice of whether to continue to reside in Montana or move to Michigan as contemplated. We affirm.

         ¶3 Mother and Appellee-Petitioner Edward "Jimmy" Haerr (Father) are the unmarried natural parents of A.H., a female child born in October 2014. The parents initially lived together with A.H. from birth until May 17, 2015, when Mother was arrested and briefly incarcerated on the offense of partner or family member assault. As alleged by the State, Mother threatened Father with a shotgun in the midst of an alcohol-fueled altercation in their home. Upon Mother's arrest and the resulting issuance of a no-contact order, the child resided in Father's care and custody for several weeks. A.H. thereafter separately resided with both parents under an agreed alternating week schedule until Mother's criminal case resolved by plea agreement in or about October 2015. Mother and Father then resumed living together with the child.

         ¶4 However, on or about November 25, 2015, Mother obtained an ex parte temporary order of protection (TPO) against Father based on her allegation that his belligerent conduct caused her reasonable apprehension of bodily injury. A.H. thereafter resided in Mother's care pending further proceedings on the TPO. On December 11, 2015, in advance of the TPO hearing, Father petitioned the District Court for a formal parenting plan. Six days later, Mother filed a justice court civil complaint against Father asserting claims for civil assault based on the May 17, 2015 shotgun altercation and for restitution based on Father's veterinarian-conducted euthanization of the parties' allegedly aggressive dog.[1] In January 2016, upon hearing in the now-consolidated TPO and parenting plan proceedings, the District Court temporarily continued the TPO based on Father's aggressive behavior toward Mother. The District Court attributed his behavior to military service-related post-traumatic stress disorder (PTSD) and ordered that A.H. would continue to reside with Mother until Father obtained and completed PTSD-related counseling after which he would have the child on alternating weekends pending further proceedings. Father ultimately completed the required counseling and the temporary alternating weekend schedule thereafter commenced in March 2016.

         ¶5 Through subsequent mediation on a final parenting plan, the parties agreed that A.H. would continue to reside primarily with Mother but that Father would have her on alternating weekends and as specified in a stipulated holiday schedule. The District Court approved and adopted the stipulated final parenting plan on April 7, 2016. The parties thereafter followed the stipulated plan for the next two years.

         ¶6 While in Mother's care, A.H. generally resided with her half-sibling B.L., who is Mother's son from a prior relationship. B.L. is approximately three-and-a-half years older than A.H. Father helped Mother parent B.L. after they began living together in fall 2012 after she left B.L.'s father. In a separately pending child custody battle between Mother and B.L.'s father, the District Court found upon hearing that Mother falsely accused B.L.'s father of sexually abusing B.L. in December 2012.

         ¶7 On April 11, 2018, Mother filed an "emergency motion" seeking suspension of Father's existing visitation rights on the alleged ground that A.H. had been sexually abused while in Father's care. Mother based the allegation on her observation of inflammation about the child's vulva after Father returned her from a weekend visitation. Pending hearing, the District Court immediately suspended Father's parental rights.

         ¶8 However, at hearing on May 25, 2018, the District Court immediately restored Father's parenting plan rights upon finding that Mother failed to substantiate the sexual abuse allegation. The court largely based its finding on independent testimony of the nurse practitioner who examined and treated A.H. and an investigative detective of the Park County Sheriff's Office. In a subsequent written order, the District Court expressly found that Mother's testimony in support of the sex abuse allegation was not credible.[2]

         ¶9 Six days after the court restored Father's parenting rights, Mother filed a notice of intent to move with the child to Michigan and a motion for an amended parenting plan. In her filings, Mother stated that her mother and other family reside in Michigan, she had a guaranteed floral company job waiting for her in Michigan, and that her cost of living would be lower in Michigan. After hearing on August 21, 2018, the District Court issued detailed written findings of fact, conclusions of law, and judgment on Mother's notice and motion for an amended parenting plan. In summary, the court found that it was in A.H.'s best interests to "remain in the Livingston area" where she is well-adjusted, will have regular contact with her half-brother B.L., will have more direct parental care and greater continuity of adequate care with extended family and close friends, and will thus receive greater attention to her developmental and educational needs. Based on a finding that, to the extent possible under the circumstances, it is in A.H.'s best interest to have regular and continuing contact with both parents, the District Court imposed two alternative parenting plan schemes-one in the event that Mother remained in the Livingston area and another if she ultimately elected to move. If Mother remained in the Livingston ...

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