                             NO.   93-440
          IN THE SUPREME COURT OF THE STATE OF MONTANA




ROBERT ALLEN ROMO, CONNIE ROMO,
and TOM ROMO,
          Petitioners and Appellants,


TARA DAWN HICKOK, LATOYA PATRICIA
HICKOK, by and through their natural
guardian, PATRICIA HICKOK,
          Respondents and Respondents.



APPEAL FROM:   District Court of the Fifteenth Judicial District,
               In and for the County of Roosevelt,
               The Honorable M. James Sorte, Judge presiding.


COUNSEL OF RECORD:
          For Appellants:
               Mary L. Zemyan, Attorney at Law,
               Wolf Point, Montana
          For Respondents:
               Carol C. Johns, Attorney at Law,
               Wolf Point, Montana (for Tara Dawn Hickok)
               Laura Christoffersen, Attorney at Law,
               Wolf Point, Montana (for Patricia Hickok)


                             Submitted on Briefs:      February 24, 1994
                                            Decided:   March 28, 1994
Filed:
J u s t i c e Terry N. ~ r i e w e i l e rdelivered the opinion of the Court.
      Robert Allen Romo petitioned the District Court for the
Fifteenth Judicial District in Roosevelt County to establish
paternity, custody, and visitation rights for LaToya Patricia
Hickok, a minor child.        Tom Romo and Connie Romo joined in the
petition to obtain rights of visitation.             The Ramos appeal from
that portion of the District Court order awarding visitation to the
grandparents and awarding supervised visitation tothe father after
his release from the Montana State Prison. We affirm the District
Court.
      The following issues are presented for our review:
      1.    Did the District Court err when it found that visitation
at the prison was not in the child's best interest?
      2.    Did the District Court abuse its discretion when it
ordered    that, after his        release from      prison, the       father's
visitation will be supervised by maternal relatives?
      3.    Did the District Court err when it did not set a
visitation schedule for the father after his release from prison,
but merely provided that visitation would be permitted?
      4.    Did the ~istrictCourt err by giving the mother absolute
control over visitation by the paternal grandparents?
                            FACTUAL BACKGROUND

      LaToya Patricia Hickok was born on February 24, 1991.                Her
parents, Tara Dawn Hickok and Robert Allen Romo have not married
each other. On October 18, 1991, Robert was sentenced to ten years
                                       2
at t h e Montana S t a t e Prison, with seven years suspended, for two
counts of burglary and one count of theft.
     On April 9, 1992, Robert filed a petition to establish
paternity, custody, and visitation rights as LaToyans father. Tom
Romo and Connie Romo, Robert's parents, joined him in his petition
to obtain the right of visitation as LaToyals grandparents.
     After undergoing blood tests, the parties stipulated that
Robert was the child's natural father. On November 20, 1992, the
District Court appointed Pam Hodges of the Department of Family
Services guardian ad litem for the minor child, and further ordered
that mental health evaluations and home studies be performed on
Tara Hickok, Connie Romo, Tom Romo, and to the extent possible, on
Robert Romo.
     The District Court held a hearing on June 7 , 9        9 on the

remaining issues of custody and visitation.      The District Court's
July 2, 1993, order granted sole custody of LaToya to her mother,
which the Romos do not contest.       The District Court ordered that
LaToya not be required to visit her father at the Montana State
Prison, but granted him supervised visitation after his release.
With regard to Tom and Connie, the District Court recognized their
right to visit their granddaughter, and in its order set forth the
general parameters under which they could exercise that right.
                               ISSUE 1
     Did the District Court err when it found that visitation at
the prison was not in the child's best interest?
                                  3
     The standard of review for custody and visitation is whether
substantial, credible evidence supports the district court's
judgment.   In re Mam'age of Nash (l992), 254 Mont. 231, 234, 836 P.2d


     The Romos argue that, before it could deny visitation with
Robert at the prison, the District Court was required, on the basis
of 3 40-4-217(1), MCA, to find t n t such visitation would endanger
                                'a
LaToya.   That section provides as follows:
          A parent not granted custody of the child is
     entitled to reasonable visitation rights unlessthe court
     finds, after a hearing, that visitation would endanger
     seriously the child's physical, mental, moral, or
     emotional health.
This Court recently stated in In re Marriage of Reiningham (1991), 250

Mont. 86, 90, 817 P.2d    1159, 1161; cert. denied   (1992), 112 S. ct.

1497, 117 L. Ed. 2d 637, that:
     Although 5 40-4-217(1), MCA, requires a showing of
     endangerment [before the district court can place a
     restriction on visitation], we will not so narrowly
     interpret the statute so that the court is unable to
     design visitation that reflects the child's best
     interests.
     The Commissioners1 Note to 5 40-4-217, MCA, states that with
two important exceptions, the general rule to be applied in
awarding visitation is the "best interest of the child" standard.
It is only when the court deprives the noncustodial parent of all
visitation, or when a custodial parent tries to restrict or
eliminate a noncustodial parent's visitation, that the judge must
hold a hearing and make the extraordinary finding of serious
endangerment.
     On July 2, 1993, when the District Court made its findings,
Robert's tentative release date from prison was September 1993.
Considering the brief amount of time this provision of the District
Court order would have an effect, we do not find t h a t Robert was
deprived of visitation.       Therefore, we will apply the " b e s t
interest1'standard.
     At the time of the hearing, LaToya was approximately t w o and
one-half years old, The distance from Wolf Point to Deer Lodge is
approximately 469 miles.    Connie Romo testified that the trip to
the Montana State Prison in Deer Lodge would involve a five-hour
flight in a chartered plane piloted by Tom Romo.       Tara testified
that she felt the prison environment would confuse and scare her
young daughter.
     Based   on the young age of the child, the long distance
involved, the environment in which visitation would take place, and
the short time necessary for postponement, we conclude t h a t there
was substantial evidence to support the D i s t r i c t Court's finding
that visitation at the Montana State Prison was not in the child's
best interest. Under the circumstances of this case, we hold t h a t
"reasonable visitationttdoes not preclude postponing t h e right of
visitation until the parent is in a position to exercise the right
without interfering with the child's best interest. In so holding,
we are not establishing a hard and fast rule with regard to parents
who are imprisoned under other circumstances.
                              ISSUE 2

      Did the District Court abuse its discretion when it ordered
that, after his release from prison, the father's visitation will
be supervised by maternal relatives?
      The Romos argue that Robert's visitation should not be
restricted.   The proper standard to apply where the custodial
parent seeks restriction of the noncustodial parent's visitation is
the   serious endangerment standard.       Commissioners' Note    to
5 40-4-217, MCA.   In applying this standard, the district court is
vested with liberal discretion. See Reininghaus, 817 P.2d at 1161-62.

In this case, there was substantial evidence in the record to
support a finding of serious endangerment to the child's physical,
mental, or moral well-being, including Robert's extensive previous
drug use and chemical dependency, his dishonesty and antisocial
behavior, his suicide attempts, and threats of violence.          We
conclude that the District Court did not abuse its discretion when
it required that Robert's visitation be supervised.
      However, the Romos argue that if supervision is necessary,
that they should be allowed to supervise Robert's visitation with
LaToya.   In the alternative, they argue that 5 40-4-218, MCA,
requires the Department of Family Services to conduct supervised
visitation.
     The purpose behind 5 40-4-218, MCA, is to provide court
intervention where the custodial parent has made a decision
regarding the child sufficient to endanger the child's physical
health or emotional development, as for example, when a custodial
parent refuses to provide medical care for a sick child.           See

~ommissioners' Note to 5 40-4-218, MCA.          though supervised
visitation may be conducted by the Department of Family Services,
In re Mam'age o Hickey (1984), 213 Mont. 38, 689 P.2d 1222, visitation
              f
by a noncustodial parent may also be supervised by family members
or other persons. The primary consideration in the selection of a
person or persons to supervise visitation should always be the best
interest of the child.
     Tara testified that she objected to supervision of Robert's
visitation with his daughter by Tom Romo and Connie Romo because
they had failed to control Robert's behavior in the past. She also
testified that Robert had threatened to take LaToya from her and
believed that his parents would be unable to prevent him from
removing the child from their supervision.
     The guardian ad litem recommended that Robert's visitation be
supervised by his parents.   However, the District Court found that
     [tlhe visitation recommendations made to the Court by
     Social Worker Pam Hodges are not based on competent and
     complete evidence.      The visitation frequency and
     conditions recommended by Social Worker Hodges are not in
     the child's best interests.
       We conclude that the ~istrictCourt's findings with regard to
supervised visitation are supported by substantial evidence.         We
also conclude that the manner in which the District Court ordered
that visitation be supervised was not an abuse of discretion.
                                ISSUE 3
       Did   the District Court err when it did not set a visitation
schedule for the father after his release from prison, but merely
provided that visitation would be permitted?
       The Romos cite Saizderso~zv Sanderson (1981), 191 Mont. 316, 623
                                 .

P.2d   1388,   to support their argument that it was an abuse of
discretion not to set a specific visitation schedule.         There, at
the time the court awarded "reasonable visitationg1 the father,
                                                   to
the parties lived in the same city.       Later, the mother moved 600
miles away, which effectively restricted the father's visitation.
We did not find that the District Court abused its discretion, we
merely remanded with directions that the District Court specify a
reasonable schedule for visitation.       Sanderson, 623 P.2d at 1389.

       Moreover, we have previously held that failure to order a
specific visitation schedule does not constitute an abuse of
discretion where there is no need for specificity demonstrated and
the record indicates a willingness to allow visitation. I n re Mamhge

ofMeyer (19831, 204 Mont. 177, 182-83, 663 P.2d 328, 331.

       There is nothing in the record to suggest that the parties in
this case will be unable to work out a reasonable visitation
schedule.   The father's imprisonment at the time of the District
Court's order, and the uncertainty with regard to his release,
presented unique circumstances rendering a specific visitation
schedule premature.     We interpret the District Court order to
provide for reasonable visitation, and we conclude that the
District Court did not abuse its discretion when it granted
reasonable visitation to Robert without further definition.          We
note, however, that should visitation become unworkable between the
parties, the District Court may be required to devise a schedule.
InreMarriageofDimberger (1989), 237 Mont. 398, 773 P.2d 330; Sanderson,


                               ISSUE 4
     Does the District Court order err by giving the mother
absolute control over visitation by the paternal grandparents?
     The order of the District Court states:
          While the child resides in Wolf Point, the
     grandparents may have visitation: a) once per week for a
     few hours each visit; b) for special occasions upon
     mutual agreement with the mother; and c) for "stop inn
     visits with her mother on holidays.
          When the mother and child relocate, the grandparents
     may have a) afternoon visits up to four times per month
     when the grandparents are able to travel to the place of
     residence; b) and holiday visits if prearranged and
     mutually agreed upon by the grandparents and child's
     mother.


          The parties' mutual agreement to visitation upon
     notice by the grandparents of their intent for visitation
     shall be a condition for visitation.
Further, Tara was ordered to notify Ton and ~onnie her trips to
                                                 of
Wolf Point so that visitation could be arranged, and advised that
more frequent and longer visits, including overnight stays, would
be permitted when the child is old enough to express her wishes to
that effect.
       The Romos argue that the District Courtts order allows the
mother to have absolute control over their visitation and does not
grant them     an independent right to visitation based on the
permissive language "may" that appears in the order.         They also
argue that the condition of mutual agreement preceding each
visitation weakens their right.
       We interpret the references to the condition of mutual
agreement to refer to times and places, not whether visitation may
occur.     As in any visitation situation, the success of this
arrangement hinges on the cooperation of the parties.       There is no
evidence that cooperation has been withheld.         When and if it is,
the    District   Court   is   in   the   best   position to make that
determination and take the appropriate corrective measures.
       Finally, Tara asks that she be awarded her attorney fees
incurred on appeal. We conclude that the appeal is not groundless
and we have no other factual or legal basis for awarding attorney
fees   .
       The judgment of the District Court is affirmed.
We concur:
Justice John Conway Harrison, concurring in part and dissenting in
part.

     I concur and dissent from the majority opinion, particularly

with issue 2:   whether the District Court abused its discretion
when it ordered that, after his release from prison, the father's
visitation with the child would be supervised by a maternal
relative.   The parents of the father, the Romos, argue his
visitation should not be restricted.
     The record indicates that not only was the father a felon at
the time of the hearing, but prior to that he had an unsavory
record as a juvenile, including numerous incidents which would have
been charged as felonies had he been older.        The record also
contains information that the father had been confined at the Miles
City institute for juveniles and had threatened the mother of his
child as well as her boyfriends. In addition, the record indicates
the father has attempted suicide and has a history of violence.
     Since the hearing, the mother has moved some 600 miles away
from Wolf Point, Montana, and is now living in Pablo, Montana, with
her mother and aunt.   In objecting to the father's visitation in
Pablo, it is quite understandable that the mother and aunt would
not particularly welcome the father in their home while supervising
him with the child.    I would hold that the court did abuse its
discretion when it required the father to have any visitation in
Pablo.
     After reading the record, I am troubled also that the father's
and grandparents1 interest in the child was not apparent until over
a year after the child was born.       The record indicates that no
presents were ever given to the child until after this action was
                                12
commenced and no support was given to the mother who, it appears,
was either 15 or 16 when the child was born.   While the record is
devoid of any reference as to where the mother and child received
their financial support, it might well be that it had to have come
either from the mother's parents or from welfare.      To me, the
sudden interest in the child a year after her birth and after the
father was sent off to the penitentiary raises some question as to
whether the child's best interest is served until the father
establishes a record of non-violence.
     Further, the record indicates that a clinical psychologist was
hired to submit an evaluation of the appropriateness of the
father's visitation with the child. The psychologist reported: "I
see nothing contraindicatory [sic] about his having visitation with
his child, be it in prison or not. Indeed, visitation rights would
seem like a positive thing at this point."       The psychologist
arrived at this conclusion after telephone conversations with the
father while in prison, yet he had never seen the father nor the
mother or the child--I find it unusual that this recommendation
would hinge on mere telephone conversations.
     Finally, it is my view that if these visitations are to be
carried out, I believe the mother's wishes and her situation--600
miles away from where most of this has occurred--be given more
study.   A period of time should pass allowing the child to grow
before set periods of visitation by the father are allowed.
