                              No.    94-329
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1995


IN RE THE MARRIAGE OF
TAMARA KAY NJOS, formerly
known as Tamara Kay Allard,
           Plaintiff and Respondent,
     and




APPEAL FROM:    District Court of the First Judicial District,
                In and for the County of Lewis and Clark,
                The Honorable Dorothy McCarter, Judge presiding.


COUNSEL OF RECORD:
           For Appellant:
                Edmund F. Sheehy, Jr.; Cannon & Sheehy,
                Helena, Montana

           For Respondent:
                John L. Hollow, Attorney at Law, Helena,
                Montana



                              Submitted on Briefs:       December 8, 1994
                                              Decided:   February 15, 1995
Filed:
Justice Karla M. Gray delivered the Opinion of the Court



     Robert Dale Allard (Robert) appeals from orders of the First

Judicial District Court,           Lewis       and Clark County,          temporarily
modifying his visitation rights with his daughter and requiring him

to undergo a sex offender evaluation.                We affirm.

     Robert married Tamara Njos (Tamara) in 1982.                    Their   marriage

was dissolved by a North Dakota court                  in 1987 and Tamara was

awarded sole custody of the couple's two minor children: a son,

Dustin Allard, born February 4, 1983, and a daughter, Bobbi Allard,

born September 30, 1986. Robert was granted weekly and alternating

holiday    visitation.

     The decree was modified in 1988 to provide for visitation by

Robert    every    other    weekend,    one full month in the summer,               and

scheduled holidays determined by court order.                      The North Dakota

court allowed Tamara to move to Montana with the children in 1989,

and again modified Robert's visitation to provide for two months of

summer visitation and alternating Christmas and spring vacations.

     On March 16, 1994,           Tamara filed a petition in the First

Judicial    District   Court    seeking        recognition    of   the   North   Dakota

dissolution       decree.      Seven days later,             she   moved to modify

visitation, to object to visitation pursuant to 5 40-4-217 (6), MCA,

and for an ex parte            order,    under § 40-4-220(2) (a) (ii), MCA,

requiring that Robert's visitation with his daughter Bobbi be

supervised.       Tamara supported the motion with her own affidavit;

counseling notes pertaining to alleged sexual assaults by Robert

                                           2
against Tamara's sister, Tracy; transcripts of sworn testimony from

two women who allegedly had been sexually assaulted by Robert while

he was a junior high school teacher in the 1980s; and a copy of the

criminal complaint arising out of the incidents with Robert's

students.     The District Court issued an ex parte order temporarily

modifying Robert's visitation rights by requiring supervised

visitation with Bobbi.

        The parties subsequently appeared before the District Court

for a show cause hearing.     Tracy Njos testified that, unbeknownst

to her sister Tamara, Robert had sexually assaulted her on various

occasions between 1984 and 1985, when she 14 to 15 years old.        When

the hearing continued several weeks later, Tamara's other sister,

Cindy Hayden, testified that Robert had sexually assaulted her in

1985,    when she was 12 years old.     Tamara,   Robert,   and   Robert's

mother, Linda Allard, also testified, as did Ron Silvers (Silvers),

a licensed therapist specializing in the psychological treatment of

sexual assault offenders and victims.      Following the hearing, the

District Court ordered that the temporary modification of Robert's

visitation rights continue and that he undergo a sex offender

evaluation.     Robert appeals from the District Court's ex parte and

post-hearing    orders


        1. Did the District Court err by proceeding under 40-4-
        220, MCA, rather than § 40-4-217(3), MCA, in ruling on
        the motion for temporary supervised visitation?

        The District Court predicated its ex parte order modifying

Robert's visitation on § 40-4-220(2) (a),     MCA, which provides for

temporary modification of custody ex parte when the moving party

                                    3
shows by affidavit that the child's physical or emotional health                is

endangered and an         immediate change would protect            the child's
physical or emotional health.             Robert asserts that § 40-4-217, MCA,
applies and that the court was not authorized to proceed pursuant
to   5 40-4-220,        MCA.       We     review a    district   court ' s   legal
determinations to ascertain whether they are correct.                        In re
Marriage of Barnard (1994), 264 Mont. 103, 106, 870 P.2d 91, 93.
     We address first the underlying question of whether 5 40-4-
220(Z),   MCA, which refers by its plain language to an ex parte
request for temporary "custody" or modification thereof, is
applicable to Tamara's ex parte request for temporary modification
of "visitation."    We previously have determined that visitation is
an inherent part of child custody and that the district courts have
broad powers to determine all problems concerning custody and
visitation. In re Marriage of Hunt (19941, 264 Mont. 159, 164, 870
P.2d 720, 723 (citation omitted).               Under that rationale, and given
our primary responsibility of focusing on the well-being of the
children (see In re Marriage of Hickey (1984), 213 Mont. 38, 44,
689 P.2d 1222, 1225),          it is clear that the statutorily-authorized
ex parte practice regarding a temporary custody request must
necessarily     extend to ex parte practice                regarding   temporary
visitation    issues.          A contrary determination would prevent a
district court from acting expeditiously and on a temporary basis,
in appropriate cases, to protect the interests of minor children
whose physical or emotional health may be at risk.
      In this    case,         Tamara's    ex parte request      for temporary

                                            4
modification of Robert's visitation was supported by materials
sufficient      to raise the issue of         whether Bobbi's visitation
environment with Robert might endanger her physical or emotional
health. We conclude that § 40-4-220(2), MCA, authorizes a district
court to address ex parte requests for temporary modifications of
visitation      arrangements, as well as requests for temporary custody
or modification thereof.
      Robert argues that the court's temporary order for supervised
visitation      in this   case     constitutes a    "restriction"    on his
visitation rights pursuant to § 40-4-217(3), MCA.            On that basis,
he asserts that compliance with the procedural requisites of § 40-
4-217,   MCA,   was necessary before the District Court could order
supervised visitation with Bobbi.
      Section 40-4-217(l), MCA, provides that a noncustodial parent
is   entitled to      reasonable    visitation    rights   unless,   after a
hearing, the court finds that visitation would seriously endanger
the child's physical, mental,        moral   or emotional health.    Section
40-4-217(3),     MCA, specifically provides that visitation cannot be
restricted absent such a serious endangerment finding by the court.
      Robert relies on a Commissioners' Note to § 40-4-217, MCA, in
asserting       that he is   entitled to       a hearing and a serious
endangerment finding prior to entry of an order "restricting" his
visitation to supervised visitation.          The Note states that a court
cannot deprive the noncustodial parent of all visitation rights
without meeting the hearing and serious endangerment standards of
the statute.       Neither the language of the Note nor our case law

                                       5
interpreting § 40-4-217, MCA,             support Robert's position.
        The    Note   clearly     states        that   the    hearing    and   serious
endangerment requirements of 5 40-4-217, MCA, apply where a court

"deprive[sl      the noncustodial parent of all visitation rights."

Here,    the court did not totally deprive Robert of his visitation

rights.       Indeed, it did not reduce Robert's visitation time in any

way.      The court simply, and temporarily,                 required   that   Robert's
visitation with Bobbi be supervised.

        Moreover,     we previously have rejected a similar argument

attempting to impose the requirements of § 40-4-217, MCA, on an

order for supervised visitation.                 In Marriaqe of Hickev, 689 P.2d

1222,    the father appealed from an order granting custody of the

children to the mother            and providing him with reasonable and
supervised      visitation.       Relying on Firman v. Firman (1980), 187
Mont. 465, 610 P.2d 178, Hickey argued that the limitation of his

visitation rights was erroneous absent a finding that unrestricted

visitation would seriously            endanger the physical or emotional
health of the child as set forth in § 40-4-217, MCA.                      We concluded

that Firman was distinguishable in that both the statute and that

case referred to a reduction in the amount of visitation time

granted,       whereas   Hickey's     visitation time was               merely to be

supervised.       Marriaqe of Hickev, 689 P.2d at 1225.

        We reach the same conclusion here.                   Section    40-4-217,   MCA,

applies when visitation time is reduced or,                     as indicated in the

Commissioners'        Note,     totally    eliminated.          A requirement that

visitation be supervised is not a restriction of visitation rights


                                            6
under 5 40-4-217(3), MCA.

       Robert argues in this regard that our recent decisions in Rome

v. Hickok (Mont. 1994), 871 P.Zd 894, 51 St.Rep.                 320, and In re

Marriage of Reininghaus            (1991), 250 Mont. 86, 817            P.2d 1159,

support the opposite conclusion; namely, that supervised visitation

is a restriction of visitation rights under 5 40-4-217, MCA, which

requires a serious endangerment finding.                While language in those
decisions     may    have    inadvertently    clouded    the   question,   neither
reached a conclusion different from Marriase of Hickev.

       As discussed above, we concluded in Marriage of Hickev that

either a reduction in the amount of time for visitation or a total

elimination     of    visitation    constituted   a     "restriction"   bringing   §

40-4-217, MCA, into play.           Marriaqe of Hickev, 689 P.2d at 1225.

We did not deviate in any way from that conclusion through 1987,

when we reiterated affirmatively in State ex rel. Sorenson v. Roske

(1987),   229   Mont. 151, 156-157, 745 P.2d 365, 369, the distinction

between reduction in visitation and supervision of visitation vis-

a-vis § 40-4-217, MCA.             St. ex rel. Sorenson, 745 P.2d at 369;

citing Marriage of Hickev, 689 P.2d at 1225 and In re Marriage of

Jacobson (1987), 228 Mont. 458, 463, 743 P.2d 1025, 1027.

       We decided Marriaqe of Reininshaus in 1991.             There, the mother

was granted sole custody of the minor children and the father was

awarded     reasonable      visitation.   The father argued on appeal that

the district court's order for supervised visitation was not

supported by a serious endangerment finding as required by § 40-4-

217,   MCA.         We noted factually that the district court had not


                                          7
ordered      supervised           visitation,        but    had    ordered   reasonable
visitation.      We stated--in passing and without explanation--that s
40-4-217(l),        MCA, which refers to a noncustodial parent's right to

reasonable      visitation,          "requires       a     showing of    endangerment."
Marriage     of Reininshaus, 817 P.2d at 1161.                     We did not analyze,

interpret or app:Ly             the 5 40-4-217(3), MCA, "restriction" language

argued by Robert here.

        In   ROrnOI
             -         decided in 1994,               the    district    court   ordered

supervised visitation upon release from prison of an incarcerated

father.      The father's parents argued that his visitation should not

be restricted.             Citing to the Commissioners' Note to § 40-4-217,

MCA,    we stated that            l'[tlhe proper standard to apply where the

custodial     parent        seeks   restriction       of    the   noncustodial   parent's
visitation is the serious endangerment standard." -,
                                                  Romo                           871 P.2d

at 896.      We did not define "restriction" as utilized in the statute

in     any   way;     as    a    result, we         certainly did not revise the

interpretation of "restriction" set forth in Marriaqe of Hickey and

continued     thereafter.           See Marriaqe of Hickev, 689 P.2d at 1225;

Marriaqe of Sorenson, 745 P.2d at 369.

        We conclude again that a requirement for supervised visitation

is not a "restriction" of visitation rights under § 40-4-217(3),

MCA,   which imposes upon a district court the hearing and serious

endangerment requirements of § 40-4-217, MCA. We hold, therefore,

that the District Court did not err in proceeding pursuant to § 40-

4-220(2), MCA, rather than § 40-4-217(3), MCA, on Tamara's motion

for temporary supervised visitation.

                                                8
             2. Did the District Court abuse its discretion
             by   continuing   the   order to     supervise
             visitation following the show cause hearing?

     Robert      next    argues     that,       under   the   circumstances,   the
continuing order requiring supervised visitation was an abuse of

the District Court's discretion.                This Court's standard of review

for custody and visitation is whether substantial credible evidence

supports the District Court's judgment. Marriaqe of Hunt, 870 P.2d

at 723.   We will overturn a court's custody or visitation decision

only when the court's findings and conclusions clearly demonstrate

an abuse of discretion.           Marriase of Hunt, 870 P.2d at 723.

     During the show cause hearing,                 Tracy Njos testified that

Robert had assaulted and forced her to have intercourse with him

when she was 14 years old.         Cindy Hayden, another younger sister of

Tamara's, also testified that Robert had sexually assaulted her at

age 12.
     Based on this and other testimony at the show cause hearing,

the District Court determined that a question existed as to whether

Robert ttposes    a risk to the children during their visitation." It

is   clear     that     substantial         evidence     supports    the   court's
determination.        We hold, therefore, that the District Court did not

abuse its discretion in continuing the temporary order requiring

supervised visitation following the show cause hearing.



      3. Did the District Court abuse its discretion in
      requiring Robert to undergo a sex offender evaluation?

      Robert's final contention is that the District Court abused
                                            9
its   discretion in    ordering him to undergo a sex offender
evaluation.    We review a district court's discretionary ruling to
determine whether the court abused its discretion.        In re Marriage
of Bonamarte (1994), 263 Mont. 170, 172, 866 P.2d 1132, 1133
(citation omitted).
      Robert does not challenge the court's authority to order the
evaluation    under 5 40-4-215, MCA.      He argues that ordering the
evaluation was an abuse of the court's discretion because the
results would not constitute relevant and admissible evidence.
      Relevant evidence assists in establishing the existence of any
fact which is of consequence to resolution of the action.            Rule
401, M.R.Evid.    The determination of the admissibility of evidence
is within the discretion of the trial court; the court is not
guided by fixed rules, but must consider the nature of the evidence
and the circumstances of a particular case.           In re Marriage of
Starks (19931, 259 Mont. 138, 145, 855 P.2d 527, 531-532.
      In essence,   Robert's   argument   requests   evidentiary   rulings
regarding sex offender evaluation results which do not yet exist.
For the most part, the relevance and admissibility of this evidence
cannot be determined by any court until the evaluation is
performed.
      Robert is correct, however, with regard to the admissibility
of one aspect of the as-yet-unperformed sex offender evaluation.
Relying on State v. Staat (1991), 248 Mont. 291, 811 P.2d 1261, he
argues that the results of any polygraph examination performed as
part of the sex offender evaluation are inadmissible.          In Staat,

                                   10
which involved use of the results of a court-ordered polygraph

examination in revoking an appeal bond, we quoted § 37-62-302, MCA,

which prohibits the introduction or admission of polygraph results

as evidence in a court of law.            Staat,      811 P.2d at 1261.    We went
on to state as a rule of law that N [plolygraph evidence shall not

be allowed in any proceeding in a court of law in Montana." Staat,

811 P.2d at 1262.         We quoted and applied that rule of law in State
v. Hensley (19911, 250 Mont. 478, 483, 821 P.2d 1029, 1032, in

reversing a district court's consideration of polygraph results in

sentencing a criminal defendant.
     Here,      we apply the Staat rule in a proceeding involving

custody and visitation of children.               We conclude that the results

of any polygraph examination performed during the court-ordered sex
offender evaluation are not, and will not be, admissible evidence

in subsequent proceedings in this action.

     Robert also argues that the District Court, having refused to

consider       Silvers'     testimony     recommending       the     sex   offender
evaluation because Silvers was not properly qualified as an expert,

abused   its    discretion    by   ordering     the    evaluation.    He cites no

authority requiring expert testimony before a court can order a sex

offender evaluation or any other investigation or report authorized

by § 40-4-215, MCA.           Moreover,        the testimony presented at the

hearing from persons other than Silvers clearly alerted the court

to the potential risk Robert posed to his minor daughter. We

conclude,      therefore,    that the District Court did not abuse its
discretion in ordering Robert to undergo a sex offender evaluation.


                                          11
Affirmed.




            12
                                     February 15, 199.5

                              CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid,
to the following named:


Edmund F. Sheehy, Jr.
Cannon & Sheehy
P.O. Box 5717
Helena, MT 59604-5717

John L. Hollow
Attorney At Law
318 East Sixth Avenue
Helena MT 59601

                                                 ED SMITH
                                                 CLERK OF THE! SUPREME COURT
                                                 STATE OF MONTANA
