                                No. 8 6 - 6 0 0
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                     1987



IN RE THE MARRIAGE OF
MARY KRISTIN SMYKA,        L



                 Petitioner and Respondent,
         and
JAMES FREDERICK DAYTON,

                 Respondent and Appellant.




APPEAL FROM:     District Court of the Fourth Judicial District,
                 In and for the County of Missoula,
                 The Honorable James B. Wheelis, Judge presiding.
COUNSEL OF RECORD:
         For Appellant:
                 Thomas W. Trigg, Missoula, Montana
         For Respondent:
                 Dennis E. Lind, Missoula, Montana



                                     Submitted on Briefs: April 23, 1987
                                        Decided:   July 13, 1987
         JuL 1 3 1587
Filed:



                                    Clerk
Mr. Justice William E. Hunt, Sr. delivered the Opinion of the
Court.


      James Dayton, respondent-appellant appeals an award of
joint custody and visitation schedule granted in a
dissolution action by the Fourth Judicial District Court,
Missoula County. Affirmed.
      The issues on appeal are:
      1. Did the trial court err in its application of the
standard set forth in S 40-4-212, MCA, in making the custody
determination?
      2. Was there substantial credible evidence to support
the joint custody award and visitation schedule between the
parties?
      The parties, Mary Kristin Smyka and James Frederick
Dayton are the parents of one daughter, Kelsey Graysmith
Dayton. Kelsey was born on January 27, 1983.
      The mother was the primary wage earner throughout the
marriage and provided the bulk of the financial support for
the family.     She is a tenured teacher employed with the
gifted children program for the Missoula primary grades. The
father has been intermittently employed.     For a period of
months after their child was born the father remained in the
home as caretaker for the child while the mother returned to
work.    Both parties participated in child care tasks and
responsibilities but it appears that during most of the
child's first year the father cared for the child during the
day while the mother taught school.
      The parents separated in July, 1984, and the marriage
was dissolved in October, '1984. There have been several
hearings regarding custody and visitation but since the
separation, Kelsey's primary residence has been with her
mother subject to visitation with her father.
     The mother is now remarried and testimony indicates
Kelsey has established a good relationship with her
step-father and his children from a previous marriage.
     The parents have experienced considerable conflict in
arranging and implementing custodial exchanges and there is
some indication that Kelsey has had emotional and behavioral
problems adjusting to the exchanges.
     Trial on the custody and visitation matters was held in
May, 1985. The trial court held that joint custody was in
the best interests of Kelsey with the primary residence of
the child with the mother subject to a specific custodial
visitation schedule to the father.
     Upon a motion to amend the judgment, the trial court
entered an amended judgment dated September 10, 1985
clarifying certain findings and granting expanded visitation
time to the father.     The trial court confirmed that the
primary residence of the minor child was with the mother.
The father did not appeal this amended judgment.
     Next, based upon the mother's concern for the emotional
and psychological effects evidenced by Kelsey, the court,
upon motion of the mother, ordered psychiatric evaluations of
the parties and the child. In July, 1986, a hearing on the
motion was held and in September, 1986, the trial court again
found joint custody was appropriate with the primary
residence being with the mother.       A very specific and
detailed visitation schedule was set forth.      The schedule
coordinates Kelsey's visitation schedule with the visitation
schedule of the other step-children in the home of the
mother.   Numerous changes had been made from the original
schedule. This final schedule reduced the father's time with
the child by 8 days annually over the prior schedule adopted
by the trial court. The visitation schedule now provides for
140 days with the father and 225 days with the mother. The
father appeals this final visitation schedule.
     Appellant contends the trial court erred by granting him
custody of less than a full half of the child's time while
finding that joint custody was appropriate. He argues that
because Montana favors an equal allotment of custodial time
between parents under § 40-4-224 (2), MCA, the court should
not have granted him visitation of less than half of the
child's time and that this was a misapplication of the best
interest of the child standard set forth in 5 40-4-212, MCA.
     He bases his argument on § 40-4-224(2), MCA, the joint
custody statute which evidences a legislative preference for
equality of parenting.         In 1985, the legislature deleted
language that contact with both parents might be "not
necessarily equal."        It added the emphasized portion as
follows:
      ...      the physical custody and residency of the
     child shall be allotted between the parents in such
     a way as to assure the child frequent and
     continuing contact with both parents.               The
     allotment - - of time between parties shall - - equal
                                                 be as
     - possible; however, each case shall be determined
     as
     according - its own practicalities - - -
                   to                         with the best
     interests       o f the     child   - the
                                         as          primary
     consideration.
Section 40-4-224 (2), MCA.
The father argues that the trial court erred because equal
parenting time was not shown to be contrary to the best
interests of the child.
     This Court has addressed this issue in several recent
cases.   The appellant in In re the Marriage of Cole (Mont.
1986), 729 P.2d 1276, 43 St.Rep. 2136 argued that since
physical custody time allotment between parents in a joint
custody arrangement is mandated to be as equal as possible,
he was entitled to physical custody for at least six months
each year. This Court disagreed and said that:
     ...   depending upon the circumstances of the case,
     equal physical custody will not be awarded if such
     is not in the best interests of the children.
Cole at 1279.
     There, one child had a disability. The respondent was
involved in the child's treatment and this Court found it
would be in his best interest not to interrupt his physical
custody during the school year and not to separate the two
siblings.
     We have also construed the language of S 40-4-224(2),
MCA, in In Re the Marriage of Ward (Mont. 1986), 725 P.2d
1211, 43 St.Rep. 1825. In that case the father asserted that
the decision of the trial court to award him approximately 75
days of visitation per year out of a potential 170 available
non-school visitation days was an abuse of discretion and
contrary to the recently adopted language in 5 40-4-224(2),
MCA. After we reviewed the circumstances of the case and the
applicable statute, we held:
     The District Court has no duty to make the findings
     which the father is demanding.. ..    To impose the
     father's interpretation of this statute would be an
     unreasonable burden that would further hamper the
     already beleaguered judges of the district courts
     in custody and visitation cases. Further, it must
     be noted that the statute requires that the equal
     time    recommendation   be    balanced   by    the
     practicalities of providing for the best interests
     of the child.
Ward at 1212.
     We find no error in the trial court's application of the
joint custody statute to the visitation practicalities of
this case when determining this child's best interests.
     The father also contends there is no substantial
credible evidence to support the custodial visitation award
which does not allow him the same role in raising the child
as respondent enjoys.
     On numerous occasions this Court has stated that the
standard of review in custody and visitation cases is whether
there is substantial credible evidence to support the
findings and conclusions.    Findings will not be overturned
unless there is a clear preponderance of evidence against
them. Ward, supra, at 1213; Jensen v. Jensen (Mont. 1981),
629 P.2d 765, 38 St.Rep. 927.
     In the case before us, the trial court heard testimony
during numerous hearings over the course of several years
including testimony from psychologists, day care workers,
parents and relatives. It considered, among other factors,
the psychological and emotional concerns of the child,
concerns for when the child attends school, and the
difficulty of the frequency and duration of the visitation
and exchanges.
     The trial court found that joint custody was appropriate
but that a specific detailed custodial visitation schedule
was necessary due to the parents' animosity toward one
another. The schedule grants the appellant approximately 140
calendar days of physical custody including Wednesdays
through Sundays twice a month, all of February and July, half
of October and alternate holidays.
     The court below also found it is in the child's best
interests to coordinate her schedule with the visitation of
the step-children. The current schedule does this.
     We do not require a court's findings to be in any
particular form so long as there is substantial, credible
evidence to support the court's judgment on the merits. In
Re the Marriage of Cole (Mont. 1986), 729 P.2d 1276, 43
St.Rep. 2136. Findings will not be overturned unless there
is a clear preponderance of evidence against them,
recognizing that evidence may be weak or conflicting yet
still support the findings. Jensen v. Jensen (Mont. 1981),
629 P.2d 765, 768, 38 St.Rep. 927, 930.
     A review of the record shows there is substantial
credible evidence to support the specific custody and
visitation award. No error exists on$his issue.
     The judgment of the District C


We Concur:    I




             ,>7
              *1d
         Justices
