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NO. 96-096

IN THE SUPREME COURT OF THE STATE OF MONTANA 1996
IN RE THE MARRIAGE OF KEVIN W. JAMES,
APPEAL FROM: District Court of the Eleventh Judicial District, In and for the County of Flathead,
The Honorable Judge presiding.
COUNSEL OF RECORD: For Appellant:
H. James Oleson, Oleson Law Firm, Kalispell, Montana
For Respondent: George B. Best, Kalispell, Montana
Submitted on Briefs: July 18, 1996 Decided: October 8, 1996 Filed:
Justice William E. Hunt, Sr. delivered the Opinion of the Court.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1988 Internal Operating Rules, this decision shall not be cited as precedent and shall be published by its filing as a public document with the Clerk of the Supreme Court and by a report of its result to Montana Law Week, State Reporter and West Publishing Company.
Kevin  James  appeals  the  order  issued  pursuant  to  a  divorce  
decree  by  the  Eleventh  Judicial  District  Court,  Flathead  County,  
awarding  Rhonda  James  primary  residential  custody  of  the  James'  
son,  Joel.  We affirm.  
The  sole  issue  for  our  review  is  whether  the  District  Court  

erred in awarding Rhonda primary residential custody of Joel.
FACTS
Kevin James (Kevin) and Rhonda James (Rhondal were married in Kalispell, Montana on January 25, 1992. Kevin, 25 years old, is employed as a logger in a family owned business. Rhonda is 24 years old and attended but did not complete college. During the course of the marriage Rhonda was a homemaker and was not employed outside the home. At the time of the marriage Rhonda had a son, Bradley, from a previous relationship. Kevin and Rhonda conceived a child, Joel, born June 9, 1993.
On August 16, 1994, Kevin filed a petition for dissolution of marriage in the Eleventh Judicial District Court, Flathead County. On the same date Kevin filed an affidavit which alleged that because of Rhonda's drinking habits and occasional neglect of Joel, it would be in Joel's best interests if the court placed him in prepare a report and recommendation regarding custody, support and visitation rights of Joel, Kevin, and Rhonda. Ms. Fish's report, filed January 27, 1995, recommended that Kevin and Rhonda be granted joint custody of Joel, but that Kevin be awarded residential custody of Joel. Ms. Fish's report was based on conferences and home visits with both Kevin and Rhonda, during which MS. Fish studied their parenting abilities and their respective interactions with Joel.
Kevin's  custody.  In  her  response  to  Kevin's  petition,  Rho&a  
denied  that  Kevin  should  be  granted  residential  custody  of  Joel.  
In  October  of  1994,  the  court  ordered  that  Jolie  Fish,  
Director  of  Family  Court  Services,  conduct  an  investigation  and  

In her report, Ms. Fish initially stated Kevin's allegation of Rhonda's excessive drinking and Rhonda's allegation that Kevin was abusive towards her. Ms. Fish admitted later in the report that she questioned Rhonda's credibility with respect to her abuse allegations, and was not entirely satisfied with Rhonda's explanation of her drinking habits.
Ms. Fish believed that both Kevin and Rhonda loved Joel very much, and that Joel exhibited a bond or attachment to each parent. Ms. Fish discovered during a visit to Kevin's home that he and Joel were affectionate toward one another, and that Kevin responded appropriately when it was necessary to discipline Joel. Ms. Fish noted that Kevin had lived'in the Kalispell area his whole life, worked in a local family business, and had just bought a house where he intended to stay indefinitely.
In contrast, when Ms. Fish visited Rhonda's apartment, she
found her in the midst of entertaining a number of friends. Joel was involved in playing with his toys and Rhonda, her attention distracted by her visitors, did not interact much with Joel.
Ms. Fish concluded her report by stating that because of Rhonda's "immaturity," Ms. Fish did not believe that Rhonda "possesses the ability to ,foster an environment that will meet Joel's physical, social, educational, emotional, or psychological needs." Ms. Fish recommended that Kevin be given residential custody of Joel, and that "every effort should be made to ensure Joel has significant contact with his brother, Bradley," for whom Joel had exhibited a great fondness.
The matter came before the court for a hearing on May 3, 1995. Each side presented witness testimony, and Ms. Fish testified in accordance with the report she filed with the court. The court issued its Findings of Fact, Conclusions of Law and Decree of Dissolution on October 18, 1995, which dissolved the marriage, distributed the marital property, and awarded Rhonda primary residential custody of Joel. Kevin appeals the District Court's award of custody.
STANDARD OF REVIEW
1n reviewing a district court's award of custody, we must determine whether the court's findings are clearly erroneous. In re the Marriage of Dreesbach (1994), 265 Mont. 216, 220-21, 875 P.2d 1018, 1021. The findings of fact must be based on substantial, credible evidence, and the court's decision will be
upheld unless a clear abuse of discretion is shown. Dreesbach, 875
P.2d  at  1021.  
DISCUSSION  
Did  the  District  court  err  in  awarding  Rhonda  primary  
residential  custody  of  Joel?  
Kevin  argues  on  appeal  that  there  are  two  reasons  why  the  
District  Court's  custody  award  was  erroneous:  first,  the  court  
ignored  the  recommendations  of  Ms.  Fish,  an  expert  who  was  hired  by  

the court and was unbiased; second, the court based its custody award in part on its desire to support the continued interaction between Joel and Bradley, when in fact the court had destroyed the likelihood of such interaction as a result of its ruling in a prior, companion case.
While Kevin admits in his briefs submitted to us that there are no cases in which we have held that a district court must follow the recommendations of a court-appointed expert, he argues strenuously nonetheless that in this case the District Court erroneously ignored Ms. Fish's recommendations. Kevin points us to three cases in which we upheld a district court's award of custody in accordance with the recommendation of a court-appointed expert: Dreesbach, 875 P.2d 1018; In re the Marriage of Cook (19911, 250 Mont. 210, 819 P.2d 180; and In re the Marriage of Ereth (1988), 232 Mont. 492, 757 P.2d 1312. Our holdings in these cases do not imply, as Kevin seems to argue, that a district court's custody award must be in accordance with a court-appointed expert's recommendations in order to withstand review by this Court. The only direction we have given district courts regarding a court appointed expert's recommendations is that they merely consider the recommendations in making a custody determination. In re the Marriage of Moseman (1992), 253 Mont. 28, 30-31, 830 P.2d 1304, 1306.
For purposes of our review of custody cases, a district court's willingness or unwillingness to adhere to a court-appointed expert's recommendations is-merely incidental to its primary duties of considering the "best interests of the child" factors and awarding custody based on substantial, credible evidence. In other words, as long as a custody award is in the best interest of the child and is supported by substantial, credible evidence, we will as readily affirm an awarding judge who relied on an expert's report as an awarding judge who did not rely on an expert's report. This is especially so in light of the principle which supports our unwavering deference to a district court's custody determination:
The responsibility of deciding custody is a delicate one
which is lodged with the district court. The judge
hearing oral testimony in such a controversy has a
superior advantage in determining the same, and his
decision ought not to be disturbed except on a clear
showing of abuse of discretion.
In re the Marriage of Nalivka (1986), 222 Mont. 84, 89, 720 P.2d
683, 686 (citations omitted).
The District Court in this case properly considered the "best
interest" factors before awarding custody. The "best interest"
factors of course refer to

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