Roth v. Haag
2013 SD 48
| S.D. | 2013Background
- Mother (Kylie Roth) had primary physical custody of son D.L.H. (born 1998); Father (Chad Haag) had visitation under South Dakota standards.
- Child has ADHD and mood-disorder traits; home-based therapy was provided in 2009 after reports of behavior and conflict with stepfather and half-siblings.
- 2010 court order gave parents joint legal custody, required Father to administer the child’s medication during visits, and left primary physical custody with Mother while expanding Father’s visitation.
- In May 2012 Father moved to change primary physical custody; at the September 2012 hearing the child and therapist (Victoria Fay) testified the child preferred to live with Father and would benefit from a closer male role model.
- The trial court applied the Fuerstenberg factors (stability, sibling separation, child preference, parental fitness, etc.), issued detailed written findings, and transferred primary physical custody to Father.
- On appeal Mother challenged the court’s analysis of stability and sibling separation; the Supreme Court reviewed for abuse of discretion and affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court erred in granting change of primary physical custody | Roth: change unnecessary because parents live near each other; child has more stability, counseling access, and continuity with Mother; Father did not participate in counseling; siblings should not be separated | Haag: child preferred to live with Father; child would benefit from stronger male role model and closer relationship with Father; trial court properly applied Fuerstenberg factors | Affirmed — trial court did not abuse discretion; thorough, balanced Fuerstenberg analysis supported change of primary custody |
| Whether separation from half-siblings was improperly given weight | Roth: compelling reasons do not exist to separate D.L.H. from Roth half-siblings | Haag: sibling factor was considered but equal (two vs. four half-siblings); child’s best interest can override keeping siblings together | Held — separation-of-siblings considered and found not dispositive; best-interest analysis permitted change |
| Whether trial court failed to consider stability and continuity | Roth: continuity favors Mother who has been primary caretaker and provided for child since birth | Haag: therapist and child testimony showed distinct need for change to support adolescent development and male role modeling | Held — court considered subfactors (attachments, school/community, adjustment) and found distinct need to change placement |
| Entitlement to appellate attorney fees | Roth: sought fees | Haag: sought fees | Denied for both — court found close case, both parties had good-faith arguments and differing financial positions did not warrant awarding fees |
Key Cases Cited
- Fuerstenberg v. Fuerstenberg, 591 N.W.2d 798 (S.D. 1999) (establishes multi-factor best-interests framework for custody changes)
- Schieffer v. Schieffer, 826 N.W.2d 627 (S.D. 2013) (custody review standard: abuse of discretion; analysis must not be scant or incomplete)
- Simunek v. Auwerter, 803 N.W.2d 835 (S.D. 2011) (siblings should not be separated absent compelling circumstances)
- Kreps v. Kreps, 778 N.W.2d 835 (S.D. 2010) (discusses abuse-of-discretion review and factor analysis)
- Beaulieu v. Birdsbill, 815 N.W.2d 569 (S.D. 2012) (best-interests remains guiding principle; courts need not make findings under every factor)
- Price v. Price, 611 N.W.2d 425 (S.D. 2000) (lists subfactors for stability analysis)
- Hathaway v. Bergheim, 648 N.W.2d 349 (S.D. 2002) (separating siblings is one factor among many)
- Zepeda v. Zepeda, 632 N.W.2d 48 (S.D. 2001) (emphasizes best-interests standard over rigid factor checklist)
- Hogen v. Pifer, 757 N.W.2d 160 (S.D. 2008) (standards for awarding attorney fees in domestic cases)
- Arneson v. Arneson, 670 N.W.2d 904 (S.D. 2003) (consideration of merit in appellate fee awards)