993 N.W.2d 594
S.D.2023Background
- Cody Harwood and Sarah Chamley dated and lived together; they have two children (born 2017, 2018). After the relationship ended, an interim court order adopted a shared parenting plan (alternating week on/week off).
- The court ordered a custody evaluation; Tom Collins conducted interviews, observations, and administered MMPI-2-RF testing (results for Cody and his new partner were flagged as unreliable).
- Collins concluded Sarah was the children’s primary caretaker, provided greater consistency, and recommended joint legal custody but primary physical custody to Sarah with a reduced parenting schedule for Cody.
- Sarah has a 2018 misdemeanor simple-assault (domestic) conviction; SDCL 25-4-45.5 creates a rebuttable presumption that custody to an abusive parent is not in the child’s best interest.
- After a two-day bench trial, the circuit court adopted findings (largely consistent with Collins’s report and Sarah’s proposed findings), found the statutory presumption rebutted by the totality of the evidence, and awarded Sarah primary physical custody.
- Cody appealed, arguing the court improperly disregarded the statutory presumption, overemphasized the primary-caretaker factor, and abdicated its judicial role by rubber-stamping the custody evaluator’s recommendations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether SDCL 25-4-45.5 presumption against awarding custody to an abusive parent was rebutted | Harwood: court improperly "waived off" the presumption and should have treated Sarah's conviction as dispositive against custody | Chamley: the presumption was considered and rebutted by the totality of the evidence | Court: presumption was considered and properly rebutted; court focused on best interests and complied with rules on presumptions |
| Whether the primary-caretaker factor was given determinative weight (Kreps) | Harwood: court and evaluator treated primary-caretaker status as controlling, contrary to Kreps | Chamley: primary-caretaker status is a significant but not dispositive factor; court considered it along with others | Court: no abuse—court properly weighed primary-caretaker among all Fuerstenberg factors |
| Whether the court abdicated its judicial role by adopting the custody evaluator’s recommendations and Sarah’s proposed findings | Harwood: trial court "rubber-stamped" Collins’s report and Sarah’s proposed findings instead of independently weighing evidence | Chamley: the court actively engaged at trial, independently considered the evidence, and simply adopted findings that matched its view | Court: no abdication—transcript shows engagement; findings are supported by the record |
| Whether the court erred in ending the interim week-on/week-off schedule and awarding primary custody to Sarah | Harwood: "If it ain't broke"—the interim arrangement worked and should continue | Chamley: parents’ interactions remained tense; joint custody impractical; evaluator’s schedule better serves children | Court: within discretion to change arrangement; found interactions tense and awarded primary custody to Sarah consistent with best interests |
Key Cases Cited
- Flint v. Flint, 974 N.W.2d 698 (S.D. 2022) (custody determinations reviewed for abuse of discretion)
- Evens v. Evens, 951 N.W.2d 268 (S.D. 2020) (primary caregiver factor is not determinative)
- Fuerstenberg v. Fuerstenberg, 591 N.W.2d 798 (S.D. 1999) (articulating factors to determine child’s best interests)
- Kreps v. Kreps, 778 N.W.2d 835 (S.D. 2010) (rejecting primacy of primary-caretaker factor)
- Maxner v. Maxner, 730 N.W.2d 619 (S.D. 2007) (judges, not custody evaluators, decide custody)
- Shelstad v. Shelstad, 927 N.W.2d 129 (S.D. 2019) (explaining effect and rebuttal of SDCL 25-4-45.5 presumption)