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In re Parenting of B.J.L.

Supreme Court of Montana

September 17, 2019

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

          APPEAL 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.

          For Appellant: Jami Rebsom, Jami Rebsom Law Firm, PLLC, Livingston, Montana

          For Appellee: Kathryn E. Keiser, Kathryn Keiser Law, PLLC, Bozeman, Montana


          Dirk M. 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 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.[1] We affirm.

         ¶3 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 false.[2]

         ¶4 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.

         ¶5 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.[3] 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.[4] In a subsequent written order filed May 25, 2018, the District Court expressly found that Mother's allegation and supporting testimony was not credible.[5]

         ¶6 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.

         ¶7 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.

         ¶8 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.[6] 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 B.L.

         ¶9 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 ...

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