Veldheer v. Peterson & Mandel

Summary

The South Dakota Supreme Court reviewed a custody dispute involving the children’s father, mother, and maternal grandparents, who had intervened after serving as the children’s primary caretakers. The court affirmed the grandparents’ intervention but held that the father’s presumptive right to custody had not been rebutted by clear and convincing evidence of extraordinary circumstances causing serious detriment to the children. It reversed the custody award and remanded for further findings and reconsideration of attorney’s fees.

Holdings

1. The circuit court properly allowed the grandparents to join or intervene because they alleged and undisputedly had served as the children's primary caretakers for approximately two years.
2. The grandparents failed to prove by clear and convincing evidence that father totally deserted the children or intended to abandon and relinquish his parental obligations; therefore, father's presumptive right to custody was not rebutted under SDCL 25-5-29(2) or (3).
3. The grandparents failed to prove by clear and convincing evidence that awarding custody to father would cause serious detriment to the children. Their primary-caretaker status, the children's bond with them, and evidence that a custody change would cause ordinary emotional distress were insufficient by themselves.
4. The attorney-fee issue must be remanded because the circuit court did not enter findings of fact and conclusions of law, and father had become the prevailing party after reversal of the custody award.
5. Neither father nor the grandparents was awarded appellate attorney's fees.

Questions Presented

1. Whether the maternal grandparents were properly permitted to join or intervene in the parents' custody dispute.
2. Whether the grandparents rebutted father's presumptive right to custody under SDCL 25-5-29 and SDCL 25-5-30 by clear and convincing evidence of abandonment, forfeiture, surrender, abdication, or extraordinary circumstances causing serious detriment to the children.
3. Whether the circuit court properly denied father's request for trial attorney's fees without entering findings of fact and conclusions of law.
4. Whether either party was entitled to appellate attorney's fees.

Disposition

reversed_and_remanded