                               No. 83-341
               IN THE SUPREME: COURT OF THE STATE OF MONTANA
                                   1984



IN RE THE CUSTODY OF
ERICKA M.




APPEAL FROM:   District Court of the Eighteenth Judicial District,
               In and for the County of Gallatin,
               The Honorable Thomas Olson, Judge presiding.


COUNSEL OF RECORD:

     For Appellant:
               Michael J. Lilly, Bozeman, Montana

      For Respondent :
               Landoe-Brown Law Firm; Peter S. Lineberger,
               Bozeman, Montana




                               Submitted on Briefs:    October 27, 1983

                                            Decided:   February 16, 1984




                               Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
      The original title in this cause has been changed by
this Court on appea.1 to comply with section 40-4-103(2), MCA.
The mother appeals from an ord.er of the Eighteenth Judicial
District Court modifying visitation rights of the father.
The single issue on appeal is whether the District Court
abused its discretion in expanding the father's visitation
rights with his daughter.     We affirm the judgment of the
District Court.
      Ericka's parents were married in California in 1973.
Ericka was born in 1975.    When her parents divorced, Ericka
was less than 2 years old and lived with her mother.        In
1979, the parents stipulated and a California court ordered
that the father had the right to visit his daughter "in her
home upon reasonable notice."    Both parents have remarried.
The   visitation process has deteriorated in recent years
despite the court's attempts to rectify the situation by
ordering various visitation arrangements.
      Ericka lives in Montana with her mother, step-father and
step-sister.   Her father still resides in California.    With
notice, he has traveled to Lake Tahoe, California and to
Bozeman, Montana to visit with Ericka, as have his parents
(Ericka's grandparents).   The mother strongly resents and has
discouraged visits, correspondence and gift giving.        The
parties have been to court at least nine times in Montana
regarding custody, visitation and support of Eri-cka.     This
appeal is the latest in a sad series of litigation between
the child's parents.
      The District Court conducted a hearing on the father's
petition for joint custody and expansion of visitation rights
and the mother's motion to terminate all future custody and
visitation by the father or his family.     The court issued a
Modification       Judgment    and      Decree,    ordering      two    weeks
visitation    in    California    in August,         1983 with    temporary
custody of Ericka placed in her father, and visitation from
Allgust 1 until August 21, 1984, and each year thereafter
until further court order.           From this judgment, the mother
appeals.
     The     controlling      statute    in   this    matter   is      section
40-4-217, MCA, which states in pertinent part:
     " (1) A parent not granted custody of the child is
     entitled to reasonable visitation rights unless the
     court finds, after a hearing, that visitation would
     endanger seriously the child's physical, mental,
     moral, or emotional health.


    " (3) The court may modi-fy an order granting or
    denying visitation rights whenever modification
    would serve the best interest of the child; but the
    court shall not restrict a parent's visitation
    rights unless it finds that the visitation would
    endanger seriously the child's physical, mental,
    moral, or emotional health."
Under this section, the trial court may modify visitation
whenever modification would serve the best interest of the
child.     However,     the    noncustodial       parent   shall       not   be
restricted     unless   visitation       would    endanger     the     child.
Sanderson v. Sanderson (Mont. 1981), 623 P.2d 1388, 1389, 38


     The primary factor to be considered is the best interest
of the child, as set forth in section 40-4-212, MCA:
    "The court shall determine custody in accordance
    with the best interest of the child.   The court
    shall consider all relevant factors including:
     " (1) the wishes of the child's parent or parents
     as to his custody;
     " (2) the wishes of the child as to his custodian;
     " (3) the interaction and interrelationship of the
     child with his parent or parents, his siblings, and
     any other person who may significantly affect the
     child's best interest;
        " (4) the child's adjustment to his home, school,
        and community; a.nd

        " (5)   the mental and       physical   health     of    all
        individuals involved."
       Where   there    is substantial evidence to         support the
adopted findings of fact, specific findings on each of these
5 elements need not be made.          Speer v. Speer (Mont. 1982),
654 P.2d 1001, 1003, 39 St.Rep. 2204, 2206.
       The District Court heard conflicting testimony regarding
past problems with visitation.        However, the mother testified
unequivocably that she did not and would not encourage Ericka
to have a relationship with her father and that she had not
told Ericka who her natural father was until ordered by the
court to do so in preparation for a court-ordered visitation.
While    Ericka's      grandmother   was   testifying    at     the    1983
hearing, the court had to admonish the mother not to make
faces at the witness.       The record is replete with evidence of
the mother's      animosity toward the father and his family.
       Elizabeth Wheeler, Director of Court Services, testified
that    Ericka    refused   to   participate    in   a   court-approved
visitation with her grandparents, who had traveled to Bozeman
to see her in December, 1982.        Ericka, who was 6 years old at
that time, told Mrs. Wheeler that she did not want to see
them because her grandmother was "mean," she did not like
her, and her grandmother had left her when she was a baby.
Ericka had not seen her grandmother since her third birthday,
which she had spent happily at her grandparents' home with
her father.      Mrs. Wheeler testified that the mother in no way
encouraged Ericka to accept the visitation and that, when
asked to try to walk out leaving Ericka with Mrs. Wheeler for
a few minutes to see if she might change her mind, the mother
said she could not.         Mrs. Wheeler also testified that she
thought the fact that Ericka dislikes, hates and fears her
father and grandparents "creates a problem for her," and that
"it's important that a child feel good about their parents. "
The District Court agreed.
        Finding nothing in the record to elicit such a negative
response from the child except her mother's attitudes, the
District Court made the following finding of fact:
    "That the hostile and negative comments and
    attitudes of the      small child    are directly
    attributable to the influence of her mother,          ...
    who has displayed a.t all times throughout this
    hearing and other hearings, a hostile and open
    hatred of [the father]      . ..
                                 and his family. [The
    mother's]       ...
                     influence of the minor child is a
    threat to her emotional health and well-being and
    it is in the best interests of the child that she
    establish a normal and healthy relationship with
    her father and her aunts, uncles, cousins and
    grandparents, all of whom reside in southern
    California."
The visitation process at that time and all alternatives
tried in the past required the father or the grandparents to
travel to Montana. Visitors had to deal on a fa.ce to face
                                            .
basis with the mother or attempt to use Mrs. Wheeler as an
intermediary.    The court found that :
    "A continuation of the visitation process wherein
    the parties come face to face or where the process
    takes place under the watchful eye of           . .
                                                 . [the
    mother] is not likely to work and is detrimental to
    the best interests of the child and threatens her
    emotional health."
These    findings   are   supported   by   the   testimony   and   the
physical evidence presented at the hearing.            They form an
adequate basis for the court's conclusion that:
    "There has been a material change of circumstances
    threatening the emotional health and welfare of the
    minor child since the previous Order and Judgment
        ...
          made on September 28, 1982.     Specifically,
    .    .. [the mother] has now shown tha.t any
    visitation procedure, whether it involves a face to
    face confrontation of the parties or the use of an
    intermediary and officer of the court, will not
    work because her influence is pervasive and her
    presence destroys the visitation process. If this
    influence is permitted to pervade the visitation
    process, it will effectively thwart a.11 previous
    orders by the court, it will effectively terminate
    the father's rights, and it will result in the
    minor child being denied the lasting benefit of
    being known and loved by her father and his
    family. "
     Based on the findings of fact and the evidence, we find
no abuse of discretion by the District Court in modifying the
father's visitation rights to permit the child to visit him
at his home in California for a period of 3 weeks every
August until further order of the court.    The Modification
Judgment and Decree of the District Court is affirmed.




We concur:
