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IN RE MARRIAGE OF MILLER
Case Summary: In re the Marriage of Imelda L. Miller and Harris B. Miller, No. 83CA0110 (Colo. Ct. App. Sept. 22, 1983)
Factual and Procedural Background
Dissolution proceedings were initiated in October 1980. In December 1980 the father, Harris B. Miller, was awarded temporary custody of the parties' five children. A decree dissolving the marriage was entered in November 1981 with custody, visitation, and support reserved for later determination. In October 1982 a hearing addressed custody only; support and visitation remained reserved.
At the start of the October 1982 hearing the parties stipulated that the mother, Imelda L. Miller, would have custody of the two oldest sons (ages 16 and 17) and the father custody of the youngest son and older daughter (ages 12 and 14). Custody of the youngest child, Theresa (age seven at time of appeal), was disputed.
A court-appointed attorney under § 14-10-116, C.R.S. 1973, presented findings, and the Douglas County Department of Social Services submitted custody evaluations. Both recommended that Theresa be placed in the father's custody. Despite those recommendations, the Douglas County District Court awarded custody of Theresa to the mother, noting Theresa's expressed wish to live with her mother and relying in part on the mother's "motherly instincts." The court also found Theresa's interaction with the father's family "no longer satisfactory," apparently due to discord the mother allegedly created in the father's household.
The Douglas County court approved the parties' stipulation changing venue to the Denver District Court. Support and visitation remained unresolved. The father appealed the custody award; the Colorado Court of Appeals, in an opinion by Chief Judge Enoch, reversed and remanded.
Legal Issues Presented
- Whether the trial court abused its discretion in awarding custody of Theresa to the mother because the evidence was insufficient to support that award.
- Whether the trial court improperly considered the mother's sex (i.e., presumed that the mother was better able to serve the child's best interests because she was female) in violation of § 14-10-124(3), C.R.S. 1973 (1982 Cum. Supp.).
Arguments of the Parties
Appellant's Arguments (Father)
- The trial court's award of custody to the mother was not supported by sufficient evidence.
- The trial court improperly considered the mother's sex—giving weight to "motherly instincts"—thereby presuming the mother was better able to serve the child's interests because of her sex, contrary to § 14-10-124(3).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Rayer v. Rayer, 32 Colo. App. 400, 512 P.2d 637 (1973) | Authority addressing improper custody preference based on sex. | The court cited Rayer to support the proposition that presuming a parent is better because of sex is improper; it concluded the trial court had given undue emphasis to "motherly instincts" and thus made such a presumption. |
| In re Marriage of Moore, 35 Colo. App. 280, 531 P.2d 995 (1975) | Authority that a presumption favoring a parent because of sex constitutes an abuse of discretion and is reversible error. | The court cited Moore for the rule that a sex-based presumption in custody determinations is reversible error and applied that rule in concluding the Douglas County court erred. |
| In re Marriage of Lawson, 44 Colo. App. 105, 608 P.2d 378 (1980) | Authority concerning the desirability of avoiding repeated changes in a child's custody where it may harm the child's best interests. | The court relied on Lawson to emphasize that, on remand, the trial court should consider the potential harm of further changing Theresa's custody and that Theresa should remain with her mother until a new determination is made, absent an emergency. |
Court's Reasoning and Analysis
The Court of Appeals evaluated the trial court's custody decision against the statutory factors listed in § 14-10-124(1), C.R.S. 1973, which require consideration of: the parents' wishes; the child's wishes; the child's interactions and interrelationships with parents, siblings, and others significant to the child's interests; the child's adjustment to home, school, and community; and the mental and physical health of all parties.
The appellate court recited the trial court's findings: Theresa wished to live with her mother; both parents desired custody; Theresa had family and a supportive environment at the father's home and was doing well in school while in his custody; the father had a stable home; the mother lacked money, employment, and stable circumstances and relied on assistance from older sons. The appellate court observed that the trial court made no findings regarding Theresa's interaction with the mother apart from the child's stated preference.
The appellate court then addressed § 14-10-124(3), which forbids presuming a person is better able to serve a child's best interests because of sex. The court concluded the trial court impermissibly relied on the mother's "motherly instincts," effectively presuming the mother was a better custodian because she was female. Relying on Rayer and Moore, the court held that such a presumption is an abuse of discretion and reversible error.
Having determined reversible error as to the sex-based presumption and inadequate findings on relevant statutory factors, the appellate court declined to address an additional contention about the trial court's use of unrecorded interviews with the children. The appellate court nevertheless recognized that Theresa had been living with her mother since October 1982 and, citing Lawson, directed that the remand custody determination be based on current evidence of Theresa's best interests and that Theresa remain with her mother until the new determination is made, absent an emergency. The court also directed that child support and visitation be determined contemporaneously on remand.
Holding and Implications
Judgment reversed and remanded.
Direct consequences:
- The Court of Appeals reversed the Douglas County District Court's custody award of Theresa to the mother because the trial court gave undue weight to the mother's sex and failed to make findings reflecting proper consideration of the statutory factors in § 14-10-124(1).
- The cause is remanded to the Denver District Court for a new custody determination based on current evidence concerning Theresa's present best interests.
- Until a new custody determination is made, and absent an emergency, Theresa shall remain in the physical custody of her mother (per the court's remand instructions).
- Child support and visitation issues are to be resolved on remand either by agreement adopted by the court or by court order if the parties cannot agree.
Broader implications: The opinion applies existing Colorado authority forbidding sex-based presumptions in custody determinations and does not purport to establish new precedent beyond its application of those authorities to the facts of this case.
Opinion by CHIEF JUDGE ENOCH.
Harris B. Miller, father, appeals from the judgment of the trial court awarding custody of the parties' seven-year-old daughter, Theresa, to Imelda L. Miller, mother. We reverse.
In October 1980, dissolution proceedings were instituted in Douglas County, and in December 1980, father was awarded temporary custody of the parties' five children. A decree of dissolution of marriage was entered in November 1981, with the issues of custody, visitation, and support reserved for a later determination. A hearing in October 1982 addressed only the issue of custody, again reserving for later determination the questions of support and visitation.
At the outset of this hearing, the parties stipulated that mother would have custody of the two oldest sons, ages 16 and 17, and father would have custody of the youngest son and older daughter, ages 12 and 14. Custody of Theresa, their youngest child, was in dispute.
In addition to the testimony of the parties, the attorney appointed, pursuant to § 14-10-116, C.R.S. 1973, to represent the interests of the children presented his findings, and the court received into evidence the custody evaluations prepared by the Douglas County Department of Social Services. Both the court-appointed attorney and the Department concluded that it would be in the best interests of Theresa to be in the custody of her father.
In awarding custody of Theresa to mother, the court found that, while "it would be nice" for Theresa to live with her father, where she was doing well in school and had siblings and father's new family with whom to interrelate, Theresa wanted to live with her mother. The court noted that father had a hard time "coping" with mother's attempts to win Theresa over from her father, but that mother's actions were the result of her "motherly instincts" which she could not turn off and which the court found "should be blessed and promoted and not coped with." The court found that Theresa's interaction with father's family was "no longer satisfactory," apparently because the mother would "create dissension and discord" in father's family and make it difficult for Theresa to adjust to that home. It therefore concluded that it was not in Theresa's best interests to remain in father's home.
In its order awarding custody of Theresa to mother and approving the parties' stipulation as to custody of their older children, the Douglas County District Court also approved the parties' stipulation to change venue of this action to Denver District Court. Matters of support and visitation remain to be resolved.
Father contends that the trial court abused its discretion in awarding custody of Theresa to mother because the evidence was not sufficient to support that award and because the court improperly considered mother's sex in awarding custody. We agree and conclude that the court's findings do not reflect proper consideration of the statutory factors for an award of custody.
Section 14-10-124(1), C.R.S. 1973, sets out the factors to be considered by the court in determining custody: the wishes of the parents; the wishes of the child; the interaction and interrelationship of the child with her parents, her siblings, and any other person who might significantly affect her best interests; the child's adjustment to her home, school, and community; and the mental and physical health of all the parties. In this case, the court determined that Theresa wished to be in the custody of her mother; that both parties desired custody of Theresa; that Theresa had a family with whom to interact and interrelate at her father's home; and that she was doing well in the school she attended while in father's custody. The court also recognized that while father had a stable home situation, mother had no money, no job, was "unsettled in her circumstances in life," and relied on the assistance she was getting from the 16 and 17-year-old sons. The court made no findings as to how Theresa interrelated and interacted with her mother, other than noting her stated desire to live with her mother.
Section 14-10-124(3), C.R.S. 1973 (1982 Cum. Supp.), provides that "The court shall not presume that any person is better able to serve the best interests of the child because of the person's sex." In view of the evidence presented, it is apparent that the court gave undue emphasis to "motherly instincts," and made a presumption that the mother was better able to serve the best interests of the child because of her sex, giving her special standing or preference in determining custody. Rayer v. Rayer, 32 Colo. App. 400, 512 P.2d 637 (1973). Such a presumption constitutes an abuse of discretion and is reversible error. See In re Marriage of Moore, 35 Colo. App. 280, 531 P.2d 995 (1975).
In light of our resolution of the issues above, we do not address father's contention that the trial court abused its discretion by improperly relying upon unrecorded interviews with the parties' children.
In remanding this case, we note that Theresa has been in the physical custody of her mother since October 1982 and that it might well not be in her best interests to be subjected to yet another change of custody, even though in October 1982, it might have been better for her to have remained with her father and two of her siblings. See In re Marriage of Lawson, 44 Colo. App. 105, 608 P.2d 378 (1980). Thus, on remand, the court must make a determination of custody based on current evidence concerning Theresa's present best interests. Until the new determination is made, Theresa should, in the absence of an emergency, remain in the custody of her mother. Section 14-10-124(1), C.R.S. 1973. Furthermore, issues as to child support and visitation rights of the noncustodial parent should be resolved at the same time, either by an agreement of the parties adopted by the trial court or, if the parties are unable to agree, by order of the court.
The judgment is reversed and the cause is remanded to the Denver District Court for further proceedings, pursuant to § 14-10-124(1), C.R.S. 1973, as soon as possible, consistent with the views expressed herein.
JUDGE PIERCE and JUDGE VAN CISE concur.
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