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Stavig v. Stavig

September 30, 2009

TROY STAVIG, PLAINTIFF AND APPELLEE,
v.
JESSICA STAVIG, DEFENDANT AND APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT CODINGTON COUNTY, SOUTH DAKOTA HONORABLE RONALD K. ROEHR Judge.

Per curiam.

CONSIDERED ON BRIEFS AUGUST 24, 2009

OPINION

[¶1.] This is an appeal from an order changing the primary physical custody of Skyler Stavig from his mother, Jessica, to his father, Troy. We affirm.

FACTS

[¶2.] Jessica and Troy were married on March 2, 2002. Their only child, a son named Skyler, was born on June 15, 2002. When Troy and Jessica divorced in 2006, they agreed that they would have joint legal custody of then four-year-old Skyler, and that Jessica would have primary physical custody.

[¶3.] Shortly after the divorce, Troy filed a motion seeking temporary custody of Skyler alleging that Jessica compromised Skyler's safety by leaving him in the care of an inappropriate caregiver and by interfering with Troy's visitation. Troy also asked the trial court to order a custody evaluation with the expenses split between the parties.

[¶4.] The trial court ordered a custody evaluation to be performed by Dr. Thomas L. Price, a licensed psychologist who has a PhD in Behavioral Medicine.

Dr. Price has completed over one hundred custody evaluations since 1978. Dr. Price undertook a comprehensive child custody evaluation that utilized a number of sources of data in an attempt to cross-validate information. Initially, Jessica and Troy were asked to complete a comprehensive history questionnaire designed by a team of psychologists who perform forensics or legal psychological services. Troy completed the questionnaire; Jessica did not. Dr. Price then conducted personal interviews with Jessica, Troy, and Skyler and collateral contacts that Jessica and Troy provided. Dr. Price observed parent-child interactions. Jessica and Troy also took a series of written and verbal psychological tests to look at their emotional and psychological functioning, their views of their parenting capacity, and their views of the stress in their relationship. Jessica had also recently undergone a psychological evaluation for medical purposes. While Jessica agreed to provide it to Dr. Price, she never did.

[¶5.] In accordance with current standards, Dr. Price also screened for domestic violence. He reviewed Jessica's 2005 and 2006 petitions for a protection order and the two ex parte temporary orders of protection that were dismissed prior to hearing. Dr. Price also reviewed Troy's psychological test results and the results of Troy's anger management class where the provider did not perceive Troy to have a significant impulse control problem relating to anger.

[¶6.] Ultimately, Dr. Price recommended to the trial court that Troy "is the preferred custodial parent." His thirty-eight page report to the trial court concluded:

Both parents demonstrated some irresponsibility in how they handled aspects of this evaluation. Jessica's exceeded Troy's. She was also found to be more defensive on personality testing, and she'd failed to provide a report of psychological test findings that may have been adverse to her interests. Jessica's leaving Skylar [sic] with an adult with limited capacities is not suggestive of good parental judgment. Troy was more successful in describing how various types of parental situations should be handled.

Although there are advantages and disadvantages to placing a child primarily with the mother or with the father in this case, the examiner's assessment of the data available to him at this point indicates Troy is the preferred custodial parent. There are indications the father tends to be a little more responsible, is more capable of demonstrating good judgment and is somewhat more capable in managing his life. Skylar [sic] is a [sic] more closely bonded to his father. Jessica should of course have reasonable visitation rights, consistent with the current South Dakota guidelines.

[ΒΆ7.] Jessica's expert, Constance M. Kelso, has a MS in counseling and has been a mental health counselor for emotionally disturbed youth in the Watertown School District for sixteen years. Jessica asked Kelso to spend time with Skyler due to her concern over his emotional state. In Kelso's "limited time" with Skyler she found him withdrawn. On one occasion under ...


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