IN RE THE PARENTING OF B.J.L., A Minor Child, TIFFANY P. WHELAHAN, Petitioner and Appellant, and SETH LYDEN, Respondent and Appellee.
Submitted on Briefs: July 10, 2019
FROM: District Court of the Sixth Judicial District, In and
For the County of Park, Cause No. DR-12-123 Honorable Brenda
R. Gilbert, Presiding Judge.
Appellant: Jami Rebsom, Jami Rebsom Law Firm, PLLC,
Appellee: Kathryn E. Keiser, Kathryn Keiser Law, PLLC,
M. Sandefur Justice.
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
This case involves a disputed parenting plan regarding B.L.,
a male child born in 2011, and his unmarried birth parents
Tiffany P. Whelahan (Mother) and Seth Lyden (Father). Mother
appeals the judgment of the Montana Sixth Judicial District
Court, filed October 15, 2018, imposing a parenting plan that
provides alternative primary residential custody schemes
contingent upon Mother's choice of whether to continue to
reside in proximity to Father in Montana or move to Michigan
as contemplated. We affirm.
Mother and Father have generally cooperated regarding
parenting matters since B.L. was born despite difficulties in
their personal relationship. After they had lived together
for almost two years, Mother became involved with another man
(Jimmy Haerr) in 2012 resulting in the parties'
separation and a custody dispute over B.L. After moving out,
Mother filed a parenting plan petition with an
"emergency" ex parte motion for an interim
order suspending Father's rights based on her allegations
that he regularly abused prescription drugs and alcohol and
did not maintain a safe home environment for the child. The
court granted the ex parte motion, temporarily
placed the child with Mother, and provided limited supervised
parenting time for Father pending further proceedings. In
December 2012, the parties entered into a stipulated interim
parenting plan providing for B.L. to live primarily with
Mother, subject to a specified weekly day/overnight schedule
with Father. On January 29, 2013, the court imposed a similar
plan as the final parenting plan with Mother as the primary
residential custodian and Father having the child on an
alternating weekend schedule. Later that year, Mother accused
Father of sexually abusing B.L. Upon subsequent hearing, the
District Court found that Mother's allegation was
In October 2014, Mother gave birth to B.L.'s half-sister
(A.H.) as issue of her relationship with Jimmy Haerr. B.L.
and A.H. thereafter have lived together in Mother's care
and remain very close. Mother's grandmother and
A.H.'s father provided daycare for B.L. and A.H. when
Mother was working. Thus was the status quo into 2018.
On or about April 11, 2018, Mother obtained an
"emergency" ex parte order temporarily
suspending Jimmy Haerr's parenting rights to A.H. based
on Mother's allegation that A.H. had been sexually abused
while in his care. Upon subsequent hearing in that matter,
the District Court restored Haerr's parenting plan rights
based largely on the independent testimony of the nurse
practitioner who examined A.H. and the Park County
Sheriff's deputy who investigated the
allegation. In a subsequent written order filed May
25, 2018, the District Court expressly found that
Mother's allegation and supporting testimony was not
Six days later, Mother filed separate notices of intent and
related motions for amended parenting plans to move to
Michigan with B.L. and A.H. Her filings asserted that she
could no longer afford to live in Montana, that her mother
and other family live in Michigan, and that she had secured
work there at a local floral shop with hopes of purchasing
the business upon the anticipated retirement of the current
owner. Father and Haerr opposed the intended move with their
respective children. The court set hearings in each case for
August 21, 2018.
At hearing in this case, Mother testified about her long
hours and physically demanding work as the deli manager at a
Bozeman grocery store. She testified that she had been
affordably renting a two-bath, three-bedroom home in
Livingston from her mother, but that her mother intended to
sell the home and that similar housing was unavailable in
Livingston or Bozeman for the same amount ($700 per month).
Mother testified that she was earning about $50, 000 per year
with overtime in Bozeman, but that she could work less, earn
more, have more time for parenting, obtain free daycare from
her mother, and not have to pay rent in Michigan.
Mother testified that she and Father are both close to B.L.
Contrary to her earlier allegations, she testified that
Father has been a good father and that she had no concerns
regarding his parenting of B.L. Father testified that he and B.L.
frequently spend time together and that they do everything
together when B.L. is with Father. He testified further that,
unlike Mother, he attends all of B.L.'s activities and
school events. He emphasized that B.L. has been in the same
school with the same kids for the last four years. Father
testified that he has been gainfully employed at all times
pertinent and that the District Court found no evidence
indicating that he is not financially capable of caring for
Despite her stated difficulties with Father's mother,
Mother acknowledged that B.L. also has a close relationship
with Father's parents and that they spend a significant
amount of time with him. Father's mother testified that
she and B.L. are together three to four times per week, that
they do many things together, that she helps as a volunteer
at his school, and that she and her husband attend all of
B.L.'s activities and school events. Father and his
mother separately testified that the contemplated move to
Michigan would be detrimental to B.L. because he is a shy
child who doesn't do well ...