                                             No.     84-184

                    IN THE SUPREME COURT OF THE STATE O F MONTANA

                                                    1984




I N RE THE CUSTODY O F
bWYCELLE D.




APPEAL FROM:        D i s t r i c t C o u r t of t h e S e c o n d J u d i c i a l D i s t r i c t ,
                    I n and f o r t h e C o u n t y of S i l v e r B o w ,
                    T h e H o n o r a b l e M a r k S u l l i v a n , Judge p r e s i d i n g .



COUNSEL OF RECORD:


            For Appellant:

                    James Dorr Johnson, B u t t e , Montana


            For Respondent:

                    D a n i e l Sweeney, B u t t e ,       Montana




                                             S u b m i t t e d on B r i e f s :    July 1 0 , 1984
                                                                  Decided: e m b e r 1, 1 9 8 4
                                                                        Nov



Filed:   ~ V U --
               V    ew


                                             Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.


     The mother of Maycelle D. appeals from an order of the
District Court, Second Judicial District, Silverbow County,
modifying a dissolution of marriage decree to grant specific
visitation rights to the father.         We reverse in part and
remand with instructions.
     We consider two issues on this appeal:
     (1)      The   District   Court   interviewed    the    minor   in
chambers, and made a record of the interview.               On its own
motion, without a hearing, under section 40-4-216(4), MCA,
the District Court ordered the interview record sealed to
protect the minor.      The mother contends this is reversible
error.
     (2)      The District Court modified the dissolution of
marriage decree to provide the father specific visitation
rights for which the mother contends there is not substantial
evidence in support thereof.
     The minor is a 12-year-old girl living with her mother.
The mother and father were married on July 5, 1971, and
divorced in 1973 when the minor was nine months old.             Under
the divorce decree the mother was given custody of the minor
child, and the father was granted the right to visit the
minor child at reasonable times and places, "provided that he
complies with the terms of the decree."              The father was
ordered to pay the sum of $70 per month as child support to
the mother.
    We take judicial notice of cause no.             83-378 in our
Court, entitled State of Montana, Department of F.e~renuev.
Charles Dawson (Mont. 1984), 674 P.2d       1091, 41 St.Rep. 46.
The defendant in that case is the father of this minor child.
On April 4, 1979, the District Court made findings to the
effect that the father was in arrears in the support of the
minor child in the sum of $6,689.                  Ilowever, the District
Court determined that the defendant was then unable to make
support payments and suspended his responsibility for making
any further support payments to the mother.                   When the case
came before us on appeal, we held that the court could not
make a retroactive modification of the chil-d support payments
and determined that the Department of Revenue was entitled to
recover from the father the arrears in the sum of $6,689.
      The District Court file reflects that on January 13,
1984, the       Department of         Revenue    obtained     two   writs   of
execution respecting the unpaid support payments.                       On the
same date, the father filed a motion for contempt against the
mother     on   the ground he had been denied visitation and
telephone calls with the minor c11il.d.                The cause was heard
before the District Court on February 23, but no record of
the   hearing     was   made,    although       both    father   and    mother
appeared and were represented by counsel.                    On February 24,
1984, the       District Court        entered    an order amendjng          the
dissolution of marriage decree to provide that the father
should have visitation rights on an alternating basis on
legal holidays and the child's birthday and on alternate
Saturdays, from 9:00 a.m. to 9:00 p.m. on Sunday.                   The Court
entered findings of fact, conclusions of law, and judgment
on March 22, 1984 and this appeal ensued.
      At    the   hearing       for    contempt,       the   District    Court
interviewed the minor child to determine her wishes with
respect to visitation.          On April 2, 1984, the District Court
entered an order sealing the record of the interview of the
minor child upon the ground that the court found it necessary
that the record of the interview be kept secret to protect
the child's welfare pursuant to section 40-4-216 (4), MCA.
       No counsel was appointed to represent the child in the
proceedings.       Counsel for the mother purports to represent
the child on appeal, but we reqard his representation in the
cause as confined to that of the mother.
       The mother is proceeding on appeal - forma pauperis.
                                          in
Her affidavit of indigency indicates that she receives board
and room from an employer, $79-$90 per month for daycare of
other children, and ADC payments for Maycelle in the sum of
$102 per month.
       Unfortunately, we do not have a proper record on appeal.
Each     party     attempted      to   comply      with     Rule   9(d),
M.R.App.Ci.v.P.,    by submitting a statement of the evidence.
There are marked         differences in their statements of the
evidence before the District Court.             However, the District
Court has not approved either statement as required by Rule
9(d), supra, and the same has not been certified to us as the
record on appeal.        Because we have no record of the hea-ring
testimony    and    exhibits      relating   to    the    visitation   of
Maycelle, we       are   unable   to   determine    whether    extending
explicit visitation rights to the father was appropriate in
this case.
       There is, however, sufficient record before us on which
we can make a determination as to sealing the interview of
the minor child by the District Court.              From the order of
April 2, 1984, and from the findings of fact and conclusions
of   law entered by       the District Court in the cause, we
determine that the basis           for sealing the record of           the
interview     with      the   minor   child   is   not   sufficiently
demonstrated, and reversal on that point is required.
       Our cases are explicit with regard to custody.          We are
committed to the view that the welfare of the child is the
paramount consideration in awarding custody.             We have held
that    the   welfare    of   children,   particularly   of   the   age
invol-ved.here, is not being served if their wishes are not
considered by the trial court.        We have therefore required in
custody cases that the court make a specific finding stating
the wishes of the children as to their custodian, and if the
court determines that the chil-dren's wishes are not to be
followed, the court should state in its findings the reason
it has chosen not to follow their wishes.          In Re Marriage of
Raasa (1.979), 181 Mont. 18, 25, 591 P.2d 1110, 1114; In Re
Farriage of Kramer (1978), 177 Mont. 61, 69, 580 P.2d 439,
444.
       We ha.ve also held that the well-rounded development of a
normal child demands association with both natural parents,
and the noncustodial parent is entitled to a fair opportunity
to share in the child's love and affection when this can be
done without detriment to the child.          In Re the ~arriageof
Firman (1980), 187 Mont. 465, 469, 610 P.2d 178, 180.
       By sealing the record of the interview with the minor
child, the District Court has made it impossible for the
mother to make the interview a part of the record on appeal
and to contest the District Court's decision not to follow
the wishes of the minor child, if the child does not wish
visitation with the father.
       We hold that the rules which we have stated with respect
to the child's wishes as to custody likewise app1.y with
respect to visitation, and that when the welfare of a child
of the age involved here is in question with respect to
visitation by the noncustodian, and the court interviews the
minor    child as to his wishes respecting visitation, the
District Court should make a specific finding, stating the
wishes of the child as to visitation with the noncustodian.
If the court determines that the child's wishes are not to be
followed, the court should state in its findings the reasons
it has chosen not to follow such wishes.
        In this cause there is no reflection in the findings of
fact of the District Court as to the child's wishes, or *.he
reasons for not following the same if the child does not wish
visitation with the father.
        Section    40-4-214, MCA, provides that the court may
interview the child in chambers to ascertain the child's
wishes as to its custodian "and as to vi.sitation.ll                The
statute further requires that the court cause a record of the
interview to be made and to be a part of the record in the
cause.
      Section 40-4-216(4), MCA, provides that if a court finds
it necessary that the record of the interview be kept secret
to   protect      the   child's   welfare, the   court may   make    an
appropriate order sealing the record.
        In this case, the record of the interview was sealed
without a hearing and without explanation except the court's
statement in its order that its purpose was to protect the
child's welfare.         It is difficult for us to comprehend how
the child's welfare will be endangered unless the record of
the interview is sealed from the child's mother              (who has
full-y cared for the child to date), From her counsel, and
indeed from this Court.           This is not to say a valid reason
does not indeed exist, in which case, for purposes of appeal,
we would suggest there be submitted to us the record of the
interview - camera for our examination.
          in
     We remand the cause to the District Court with these
iizstructi.ons:   the mother shall be given opportunity for a
hearing   on   whether   the    record   of   the   interview    should
continue to be      sealed     for all purposes or whether         some
modificat.ion of the order for sealing may be made for the
purpose of her appeal; if, in the judgment of the District
Court, no revelation of the interview should be made to the
pa.rties, the record of the interview may be submitted t.o this
Court - camera in any future appellate proceedings.
      in                                                        We also
remand for a certification by the District Court under Rule
9(d), M.R.App.Civ.P.,    of a record on appeal for any future
appellate proceedings.         In the meantime, the order of the
District Court granting explicit visitation to the father
shall be and remain in effect.




We Concur:


  3~&dtwd*
    Chief Justice
