                                 No. 0 7 - 4 3 1
               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                     1988




IN RE THE CUSTODY OF
DONALD D. ZIER, JR.




APPEAL FROM:      District Court of the Thirteenth Judicial District,
                  In and for the County of Yellowstone,
                  The Honorable Russell K. Fillner, Judge presiding.
COUNSEL OF RECORD:
         For Appellant:
                  Michael G. Majerus, Billings, Montana
         For Respondent:
                  D. Michael Eakin, Montana Legal Services, Billings,
                  Montana



                                     Submitted on Briefs:   Jan. 14, 1988
                                        Decided:   March 1, 1988

Filed:    MAR 1   -   1988



                                     Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.


     Mr.   Zier filed a petition for modification of child
custody in the District Court for Yellowstone County.    The
respondent moved to dismiss the petition on grounds that the
Crow Tribal Court was a more appropriate forum. The District
Court granted this motion and deferred jurisdiction to the
Tribal Court.   We affirm.   Mr. Zier presents one issue on
appeal :
     Did the District Court abuse its discretion by dismiss-
ing the petition for modification of custody, thereby defer-
ring to the jurisdiction of the Crow Tribal Court?
     Petitioner Donald Zier and respondent Meredith Hogan
were married in 1 9 8 3 at Crow Agency, Montana. Donald, Jr.,
was born to the couple in December of that year. In 1 9 8 4 Mr.
Zier petitioned the District Court of the Thirteenth Judicial
District for a legal separation.        Ms. Hogan responded by
requesting dissolution, which was granted in March 1 9 8 5 . The
parties were granted joint legal custody over Donald, Jr.,
with Ms. Hogan as primary custodian.
     In August of 1 9 8 5 Ms. Hogan and Mr. Zier agreed that he
would have physical custody of the boy. Mr. Zier petitioned
the Crow Tribal Court for guardianship, and the tribal court,
in October 1 9 8 5 , placed the child in the custody of his
father for a period of six months at which time another
hearing was to be held to determine permanent custody.
Evidently that hearing was not held.           Mr. Zier moved to
Billings in April 1 9 8 6 . In October 1 9 8 6 he filed a petition
in District Court seeking modification of that court's 1 9 8 5
custody award and asking for full legal custody of Donald,
Jr.
     Later, the tribal court held an evidentiary hearing
concerning custody of the boy and continued the matter until
completion of a home study by Court Services of the Thir-
teenth Judicial District. In February 1987, Ms. Hogan filed
a motion to dismiss the petition for modification of custody
in the District Court on grounds that the Crow Tribal Court
was a more appropriate forum. On July 29, 1987, the District
Court deferred jurisdiction of the custody matter to the Crow
Tribal Court and dismissed Mr. Zier's petition for modifica-
tion of custody.    This is the order from which Mr. Zier
appeals.

     Did the District Court abuse its discretion by dismiss-
ing the petition for modification of custody, thereby defer-
ring to the jurisdiction of the Crow Tribal Court?
     Mr. Zier argues that the District Court, not the Crow
Tribal Court, was the "most appropriate forum for handling
this custody dispute. '
                      I   Section 40-7-108, MCA, provides in
pertinent part as follows:

         A court which has jurisdiction under this
    chapter to make an initial or modification decree
    may decline to exercise its jurisdiction any time
    before making a decree if it finds that it is an
    inconvenient forum to make a custody determination
    under the circumstances of the case and that a
    court of another state is a more appropriate forum.
         (2) A finding of inconvenient forum may be
    made upon the court1s own motion or upon motion of
    a party or a guardian ad litem or other representa-
    tive of the child.
         (3) In determining if it is an inconvenient
    forum, the court shall consider if it is in the
    interest of the child that another state assume
    jurisdiction.   For this purpose it may take into
    account the following factors, among others:
         (a) if another state is or recently was the
    child's home state;
         (b) if another state has a closer connection
    with the child and his family or with the child and
    one or more of the contestants;
          (c) if substantial evidence concerning the
     child's present or future care, protection, train-
     ing, and personal relationships is more readily
     available in another state;
          (d) if the parties have agreed on another
     forum which is no less appropriate; and
          (e) if the exercise of jurisdiction by a court
     of this state would contravene any of the purposes
     stated in 40-7-102.
This statute should be considered in the district court's
determination whether to exercise jurisdiction or defer to
the tribal court in a child custody matter. In re Bertelson
(1980), 189 Mont. 524, 540, 617 P.2d 121, 130. However, in
Bertelson we outlined other factors, in addition to the
statute, which the District Court must consider in deciding
the jurisdiction question. We will not overturn the District
Court's judgment in the absence of clear abuse of discretion.
Both parties argue to this Court facts which simply are not a
part of the record on appeal. In addition, they have append-
ed to their briefs documents which were not before the Dis-
trict Court and therefore will not be considered by this
Court.
     The District Court in its order referred to a March
hearing, yet the appellant has not filed a transcript of that
hearing with this Court. What we do have is the following
list of stipulated facts which was before the District Court:

         1. Petitioner got actual physical custody of
    the parties' child in August 1985.
         2. Petitioner moved from the Crow Reservation
    to Billings in the last part of April of 1986.
         3. Respondent has been a student and attend-
    ing school in Nevada during the last year.     Her
    permanent residence has always been on the Crow
    Reservation.
         4. Respondent currently resides on the Crow
    Reservation.
         5. Both the maternal and paternal grandpar-
    ents of the child reside on the reservation.
          6. An evidentiary hearing was held in the
     Crow Tribal Court.   Before completion of the evi-
     dentiary hearing, the trial judge continued the
     matter until the completion of a home study by
     Court Services. The tribal court is awaiting that
     report before proceeding.
These facts together with the rest of the record on appeal
present no basis for seriously questioning the District
Court's discretion.   On the contrary, we commend both the
District Court and the Crow Tribal Court for the obvious
spirit of cooperation between them.     The District Court's
decision to defer to the Tribal Court's jurisdiction avoids
competition and conflict between the courts, promotes the
purposes of the Uniform Child Custody Jurisdiction Act as set
forth in § 40-7-102, MCA, and discourages continuing battles
for custody. Because Mr. Zier has failed to show an abuse of
discretion, we affirm the District Court's deference to the
jurisdiction of the Tribal Court and its dismissal of the
petition for modification of custody. Af
