                                  No. 86-503
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                      1987



IN RE THE CUSTODY OF
N.T.E., a minor child.
B. T. E.,
       Petitioner and Respondent,


P. S. K.,
       Respondent and Appellant.



APPEAL FROM:    District Court of the Fourth Judicial District,
                In and for the County of Mineral,
                The Honorable James B. Wheelis, Judge presiding.
COUNSEL OF RECORD:
         For Appellant:
                Karl H. Boehm, Missoula, Montana
         For Respondent:
                Sol   &   Wolfe; Michael Sol, Missoula, Montana
         Guardian Ad Litem:
                Douglas R. Austin, Missoula, Montana


                                      Submitted on Briefs: June 4, 1987
                                        Decided:   July 13, 1987
Filed:



                                      Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.

      This is an appeal from the Fourth Judicial District, in
and for Mineral County, Montana, involving the custody of the
partiest minor child. The District Court awarded custody of
the child (N.T.E.) to the father and allowed the mother
certain visitation rights. Following the court's order, the
mother obtained new counsel and brought a motion for new
trial and to alter or amend the findings of fact, conclusions
of law and order.     Upon hearing the motion, the District
Court denied the mother's motion for a new trial and held
that the amended findings did not necessitate amending the
conclusions of law or the custody order. The mother appeals
the amended findings of fact, the original findings of fact
not amended, the conclusions of law and custody order. We
affirm.
      After the birth of N.T.E., the mother became his
primary caretaker because the parents did not live together.
An informal visitation arrangement to enable the father to
maintain his relationship with his child was agreed upon.
This proved frustrating and difficult, however, and at one
point the father refused to return N.T.E. to the mother. The
father petitioned the District Court for temporary custody.
The court through stipulation of the parties set up a
schedule whereby N.T.E. would spend five nights with the
father and ten nights with the mother.         However, this
arrangement did not work.
      During the hearing on this matter, the court heard
testimony regarding alcohol and drug abuse by both parents.
Extensive testimony also was taken regarding abuse and
neglect the mother had suffered during her childhood. The
parties stipulated that home studies of each home be
conducted by the office of Social and Rehabilitation
Services.    A report to the court was to be made upon
completion.    Subsequently the court ordered psychological
evaluations of both parties and a chemical abuse evaluation
of the mother. Dr. Shan Guisinger, the psychologist who made
the psychological evaluations, recommended that the father be
designated the custodial parent and N.T.E. have liberal
visitation with the mother.
      The mother was not satisfied with this evaluation and
was thereafter evaluated by another psychologist, Dr. Michael
Scolatti.    He reviewed the findings and reports of Dr.
Guisinger and conducted more extensive tests regarding her
personality and her use of alcohol. Dr. Scolatti ultimately
disagreed with the recommendations of Dr. Guisinger in her
conclusion that the father would make the better parent. The
court rejected many portions of Dr. Scolatti's report and
testimony which was in conflict with that of Dr. Guisinger.
      The matter came to trial on May 7, 1986, and continued
from time to time until June 13, 1986. Extensive evidence
was presented by both parties. The District Judge ultimately
decided that the father was to be the primary custodian and
the mother would have visitation rights.
      We will consider the following issues:
      (1) Whether the order granting custody of N.T.E. to
the father, under the circumstances where the child will not
be residing in the father's home but in the home of the
child's paternal grandparents who will be the primary
caretakers, is contrary to Montana law;
      (2) whether the findings of fact and conclusions of
law are supported by substantial credible evidence.
      This Court has long held that awarding custody is a
matter for the District Court's discretion. Bailey v. Bailey
(1979), 184 Mont. 418, 603 P.2d 259. The award of custody
must be based on the best interest of the child to determine
custody rights between natural parents.         Henderson v.
Henderson (1977), 174 Mont. 1, 9, 568 P.2d 177, 181-182. The
court must take into consideration the criteria set forth in
§ 40-4-212, MCA.

      The mother argues this standared is not appropriate in
this case citing In the Matter of Guardianship of
Aschenbrenner (1979), 182 Mont. 540, 597 P.2d 1156.       She
contends custody is in fact being awarded to N.T.E.'s
grandparents.   If, indeed, custody had been awarded to the
grandparents, the best interest of the child standard would
not be appropriate.       The father, however, was awarded
custody, and not the grandparents.
      It is true N.T.E.'s    grandmother cares for him during
the five-day period when the father is at work. Her lengthy
testimony included the fact she has raised four children of
her own, that even though she serves as N.T.E.'s      primary
babysitter, his father is the primary caretaker when he is at
home, and that he shoulders all of the responsibilities for
the child's care. When possible, he bathes the child, feeds
him, gives him his medicine, checks his temperature, and
generally cares for N.T.E.
      The court specifically concluded "that awarding custody
to [the father] does not, in effect, award custody to the
paternal grandparents."     In fact if the father has not
incorporated N.T.E. into his own household a majority of the
time within one year, the mother may schedule a show cause
hearing to determine if the father is still the primary
custodian.   Furthermore, the mother was granted reasonable
visitation privileges, including having N.T.E.        in her
household every other weekend. The court reserved the right
to increase the mother's visitation privileges after N.T.E.
reaches age four, if a show cause hearing at that time
determines it is in his best interest to do so.
        The mother contends that because the District Court did
not consider N.T.E.'s Native American heritage when awarding
custody, his best interest was not adequately addressed. The
mother did not, however, present any evidence to the District
Court regarding N.T.E.'s Native American heritage.             She
asserts that she believes it is clear the father holds some
very prejudicial opinions of Native Americans. There is no
evidence in the record to support her charges.           Her claim
that the District Court "failed to protect the child's
fundamental civil rights" by some undefined failure regarding
N.T.E.'s heritage as a Native American is not supported by
the evidence.         The father indicated at trial he would help
N.T.E. identify with his Native American heritage as best he
could. We find the best interest of the child standard was
applied even though the court did not consider N.T. E. ' s
Native American heritage before awarding custody to the
father.
        We find here that the District Court carefully weighed
all factors and set forth those factors clearly in its order
as required by Montana law. See Marriage of Barron ( 1 9 7 8 ) ,
1 7 7 Mont. 1 6 1 , 5 8 0 P.2d 9 3 6 .
        The second issue is whether the findings of fact,
conclusions of law and order are supported by substantial
credible evidence.
        There is considerable evidence that N.T.E.'s health and
emotional well-being suffered during the custody proceedings.
Dr. Steven R. Smith, N.T.E1s treating physician, noted that
the child had upper respiratory infections, ear infections,
asthmatic-like symptoms and eczema which very likely were
related to the stress of being shuffled back and forth
between his parents.          Dr. Smith's letter to Judge Green of
Missoula, hereinafter quoted, is a thoughtful plea to the
District Court to resolve the custody dispute as quickly as
possible. Dr. Smith found that the constant transportation
of N.T.E. from one home to another was extremely detrimental
to the child.
      Quoting Dr. Smith's letter to Judge Green:
           I am writing regarding the case of
           [N.T.E.] an 114 month old Caucasian male
           infant over whom a custody suit is
           currently being conducted by his parents.
          At the current time this child's custody
          is being changed every few days of the
          week between the mother, father, and
          grandparents involved.
          I am writing to tell you that this form
          of custody needs to end.     I have seen
          this child only on a few occasions but am
          now becoming his primary physician in the
          Superior area as Dr. Vern Gottleaber has
          left this area.
          In reviewing [N.T.E. 's] records I find
          that this child has been evaluated so
          many times it is unbelievable, by doctors
          both   here   and    elsewhere   including
          evaluations   for   failure to     thrive.
          Additionally the child has been afflicted
          with a number of infections including
          upper    respiratory    infections,    ear
          infections, asthmatic like symptoms,
          allergies and eczema.
          Enough is enough. I suggest to you that
          the allergy this baby has is an allergy
          to being treated like a human basketball.
          [N.T.E. ] is being thrown on a weekly
          basis from one home situation to another
          having very little time to establish any
          kind of bonding situation with either
          family. He is involved in some kind of a
          damn circus over which he has absolutely
          no control. He is just simply an object
          for possession.     It is my firm and
          professional opinion that the child is
           not going to thrive in a situation where
           he has no constant stable home life. He
           may survive and then again he may not,
           but he is not going to thrive.        In
           addition to that, if you are going to
           evaluate a child for thriving in any
           given situation, one week is not a long
           enough period of time to do that.     It
           needs to be done over a period of
           probably several months.
           Please, I implore you for the ache that
           comes inside of me every time I see this
           child, to please make a decision for
           custody that will allow this child a
           home.    It doesn't really matter which
           home he goes to live at, as either has to
           be better than what he is going through
           right now.
       We have a lengthy record covering the testimony of many
witnesses and the trial court set forth detailed and well
supported findings of fact. We find that those findings of
fact were made in consideration of the factors set forth by
S 40-4-212, MCA, and by our holding in Cameron v. Cameron
 (1982), 197 Mont. 226, 641 P.2d 1057.     We have previously
held that the District Court need not make specific findings
regarding every element set forth in S 40-4-212, MCA, but
only findings necessary to support the conclusions arrived at
by the court. See Burleigh v. Burleigh (1982), 200 Mont. 1,
6, 650 P.2d 753, 756.
       This Court has held that the district court's decision
in such matters will not be disturbed "absent a clear
preponderance of the evidence against the court's decision."
Gilmore v. Boehm (Gilmore) (1978), 166 Mont. 47, 50, 530 ~ . 2 d
480, 482; Rule 52(a), M.R.Civ.P.     Here, the ~istrict Court
was provided with sufficient evidence of the mother's
troubled past and present life, and has made a decision that
the child's        best   interest would   be   served by   making   the
father N.T.E.'s primary custodian.
      The decision of the District Court is affirmed.




We c o n c u r :
