District Court, Richfield Department The Honorable Marvin D.
Bagley No. 154600140
L. Peterson, Attorney for Appellant
Benjamin Kearns, Attorney for Appellee
David N. Mortensen authored this Opinion, in which Judges
Kate Appleby and Jill M. Pohlman concurred.
Shane Nebeker (Father) and Trisha Ann Orton's (Mother)
extramarital relationship resulted in the birth of a son
(Child). For the first eighteen months of Child's life,
Father saw him only a few times. Then, concerned about
Mother's illegal activities, Father took Child away from
Mother without her consent. Sometime thereafter, Father and
Mother worked out an extrajudicial, temporary custody
arrangement that they perpetuated until a custody trial.
After a bench trial, Mother was awarded primary physical
custody of Child, and Father was awarded statutory minimum
parent-time. Father appeals. We affirm in part-affirming the
district court's decision regarding primary custody-and
reverse in part-reversing the district court's decision
related to Father's parent-time.
Father and Mother are parents of Child, born in December
2013. Mother and Father ended their relationship before Child
was born, and they lived about 100 miles apart. During the
first eighteen months of Child's life, Father saw Child
on two occasions shortly after his birth. Mother stated that
Father "was more than welcome to come down any time he
wanted to" visit Child, but Father repeatedly told
Mother, "I refuse to have anything to do with you to see
my child." Mother did not allow Father to remove Child
from her supervision because (1) Child was nursing and (2)
Mother felt Child needed "to get to know" Father
before he took him for a visit. Father admitted Mother told
him he could visit Child at her residence, but Father said it
would have been "uncomfortable" because there were
Father did not provide financial support to Child or Mother
during the first eighteen months of Child's life. The
Office of Recovery Services opened a case, and the matter
came before the district court in early May 2015, where
Father's support obligation was determined.
In late May 2015, Mother allowed Father to visit Child.
Mother's daughter (Daughter) picked up Child and took him
to meet Father at a nearby restaurant. Daughter allowed
Father to take Child for a few minutes to buy a toy. But
Father then sent Daughter a text message informing her that
he was not returning Child. Father characterized this action
as "rescuing" Child from the dangerous situation
created by Mother's drug use. Father took Child to his
house. Mother stated that the day Father took Child was the
"darkest day of [her] life" and admitted that she
"wasn't probably in the best place in [her]
life." For the first week after Father took Child,
Father allowed Mother to call and read Child a bedtime story,
but after that week Father refused to answer the phone, and
Mother "was not allowed to see [Child] for six
months." Mother did not report Father's taking of
Child to the police or any other authority.
Mother realized that she was "never going to get [her]
baby back" unless she "got clean." She
testified that she "found a new way of life" in a
treatment center and "never touched [drugs] again."
In October 2015, Father filed a parentage petition in which
he sought sole custody of Child and child support from
Mother. Around January 2016, Mother and Father
"agreed" to an ongoing extrajudicial temporary
custody arrangement under which Child stayed ten out of every
twenty-eight days with Mother and the balance of the days
with Father. Mother said that she felt
"bullied" into accepting the temporary arrangement.
Father stated that Child did well under the arrangement.
Ultimately, a two-day bench trial was held in October and
November 2016. The district court made the following findings
of fact: (1) Mother and Father began a relationship when they
were teenagers; (2) each had been married or in relationships
with other persons; (3) each had other children from prior
marriages or relationships; (4) each had a history of using
illegal drugs and violating the law; (5) Father was married
and Mother was single at the time of trial; (6) Child had his
own bed and bedroom in Father's house; (7) Child had his
own bed in Mother's room at Mother's house; (8)
Father and Mother resided approximately 105 miles apart and
had no plans to move closer to each other; (9) Mother had a
good support system where she lived and believed she could
avoid adverse influences she might encounter elsewhere; (10)
Mother and Father each had family members to provide support
and a positive influence on Child; (11) Father's
employment required him to be away from home for fourteen
hours per day during scheduled work periods; (12)Mother
worked six-and-one-half hours daily, Monday through Thursday;
(13) Child had been residing with both parents pursuant to an
informal, temporary parent-time schedule; (14) Child was
well-adjusted and doing well under the informal agreement.
The district court also found:
Both parties acknowledged past deficiencies in their
parenting abilities. In essence both parties have had periods
in their [lives] when they have been less than fit parents.
However, at the present time both parties contribute
financially to the welfare of [Child]; and both parties spend
appropriate time with, and provide appropriate emotional
support to [Child]. Essentially, both parents are fit
parents. Both are very bonded with [Child].
In its analysis, the district court acknowledged that both
parties had a history of drug problems, criminal activities,
and extramarital sexual relations. "While Father cleaned
his life up sooner than Mother, there is insufficient
evidence for [the district court] to make a decision as to
whether one of the parties' past conduct was better or
worse than the other." Indeed, Father admitted having a
history of criminal activity, including "a couple
DUIs," methamphetamine and marijuana use with Mother,
and being incarcerated more than three times. Mother likewise
admitted that she had a history of drug use and selling
drugs, but she had been "over a year clean" at the
time of the trial. Thus, the district court determined that
"evidence relating to past conduct and moral standards
is equally balanced between the parties."
In determining which parent should have primary physical care
of Child, the district court highlighted four factors. First,
in analyzing which party was most likely to allow
"frequent and continuing contact with the other
parent," the district court noted that the facts did not
weigh in Father's favor, particularly because Father
"surreptitiously" and "underhandedly"
took Child and did not allow Mother to contact Child for a
significant period. At the same time, the court acknowledged
that taking Child motivated Mother's recovery from drug
use. The district court found the evidence supported the
conclusion that Child was "doing very well" in the
care of both parents and that both parties were cooperating
in providing the other "meaningful parent time."
Second, the district court determined that Child had a
greater bond with Mother:
While [Child] has recently spent considerable periods of time
with Father, [Child] has overall lived more with Mother than
Father. Prior to the time Father became concerned enough with
Mother's drug use that he took self-help action, Father
was content to allow [Child] to live primarily with Mother.
The [district court] considers such action (or non-action) on
the part of Father to be a tacit acknowledgement that the
best interests of [Child] were being best served by [Child]
living primarily with Mother.
the district court determined that Mother had been the
primary caregiver for Child.
Third, "Mother's work schedule is also more
conducive to her having primary physical care of
[Child]." The court reasoned that Mother could
"devote more time to [Child's] needs than
Father" because she "works fewer hours, travels
less time to and from work, ...