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McGriff v. McGriff9/21/2004
tody arrangement that works in the best interests of the children, not the parents.
2. The Shared Custody Arrangement
The magistrate judge also found that a joint custody arrangement where the children spend half of each week with each parent was in itself not in the best interests of the children. There was evidence presented demonstrating that this arrangement had produced undue stress on the children and had resulted in emotional difficulties. There was also evidence that this arrangement had resulted in several confrontations between the parents in front of the children; one in which the younger child was told to choose which parent she wanted to be with.
The magistrate found it appropriate to discontinue this arrangement. We agree the magistrate was presented sufficient evidence to conclude that the mid-week handoff of the children and the current split custody arrangement was not in the best interests of the children and that such a situation necessitated a modification of the custody arrangement.
3. The Finding That Shawn Was Better Suited for Custody
At the conclusion of the trial, the magistrate made determinations about the witnesses' credibility and, in consideration of the testimony and evidence offered, found that Shawn was better suited to have physical and legal custody of the children. The magistrate judge specifically found that Shawn was willing to work with Theron for the good of the children while Theron was not. On several occasions, the magistrate found that Shawn was willing to put the girls' interests above her own and to avoid conflict when Theron was not. And, as discussed above, it was Shawn who was willing to communicate with Theron and to improve her relationship with him through counseling while Theron would not do so. Though there is some conflicting evidence in the record and evidence that Shawn was not entirely without fault herself, there is sufficient evidence in the record supporting the magistrate's conclusion that Shawn was best suited for sole legal and physical custody of the children.
4. Additional Findings
Though the magistrate made additional findings pursuant to I.C. ยง 32-717 considering specifically the factors set forth in that statute, we need not address them, as we agree the findings discussed above are sufficient to uphold the magistrate's decision to modify custody and award legal and physical custody of the children to Shawn.
VI. LIMITATIONS ON VISITATION
The magistrate judge ordered that Theron have visitation with the children on alternating weekends and holidays and six weeks during the summer "providing that Father is not residing in the same house with his male partner" during those visits. Theron appeals this restriction, arguing that it is discriminatory against him as a homosexual and is not based on credible evidence to support it. We find that such a restriction was appropriate given the circumstances involving Nick Case in the custody matter.
The magistrate found:
Mother testified that in December 2000, and January 2001, she received several hang-up telephone calls which she reported to the police. She called a number on her caller-ID and it was Nick Case's voice mail. Chandra Evans testified that in mid-March, 2001, a call came to the Mayor's office (where Shawn worked) from someone refusing to identify himself and complaining about Mother and demanding that his complaint be forwarded to the Mayor. Chandra Evans had caller-ID, informed Mother's supervisor, Chad Stanger, advising him of the call and phone number. Chad Stanger testified that the allegations against Mother were completely false. Evans testifi
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