CONSIDERED ON BRIEFS ON MAY 20, 2013
APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT HANSON COUNTY, SOUTH DAKOTA THE HONORABLE CHERYLE W. GERING Judge
ROSE ANN WENDELL Pierre, South Dakota Attorney for plaintiff and appellant.
MICHAEL E. UNKE Salem, South Dakota Attorney for defendant and appellee.
[¶1.] Kylie Roth (Mother) appeals from the trial court's order granting change of primary physical custody of child (D.L.H.) to Chad Haag (Father). We affirm.
FACTS AND PROCEDURAL BACKGROUND
[¶2.] Mother and Father had D.L.H. out of wedlock on July 22, 1998. Following the couple's separation when D.L.H. was an infant, Mother retained primary physical custody of D.L.H. and Father exercised his visitation rights pursuant to the South Dakota standards for noncustodial parenting time.
[¶3.] Mother married Steven Roth (Stepfather) and had two children (Roth half-siblings) from that marriage. Mother, Stepfather, and the Roth half-siblings live in Mitchell, South Dakota. Father married Sherry Haag (Stepmother) and had four children (Haag half-siblings) from that marriage. Father, Stepmother, and the Haag half-siblings live on an acreage near Alexandria, South Dakota.
[¶4.] In January 2009, the Department of Social Services referred the Roth family to a home-based therapy program because of Stepfather's alleged abusive behavior towards D.L.H. Victoria Fay, a mental health therapist, performed counseling in the Roth home from January 2009 through June 2009. During that time, Mother told Fay that D.L.H. was difficult to manage in the home. D.L.H. has Attention Deficit Hyperactivity Disorder and displays traits of a mood disorder. Fay noted that D.L.H. "display[ed] some very extreme behaviors of tantruming, kicking, yelling, [and] being very defiant." Fay also indicated that D.L.H. expressed difficulty in his relationships with Stepfather and with the Roth and Haag half- siblings. Fay determined that D.L.H. responded positively to the home-based therapy program.
[¶5.] Mother discontinued Fay's counseling services in July 2009. Father had not participated in the counseling sessions. Father believed that counseling was not necessary because D.L.H. did not have any behavioral problems when D.L.H. was staying in Father and Stepmother's home.
[¶6.] In September 2009, the Roth family resumed the home-based counseling program with Fay due to D.L.H.'s behavioral problems in their home and problems with his peers at school. During this time, D.L.H. expressed to Fay his desire to live with Father because he wanted to develop a closer relationship with Father. On his own, D.L.H. devised a plan where he would equally divide his time between Father and Mother. When D.L.H. presented this plan to Mother, she rejected it.
[¶7.] In March 2010, Mother filed a motion with the trial court and requested an order requiring Father to ensure that D.L.H. received his prescribed medication while D.L.H. was in Father's care. Father also filed a motion requesting an increase in visitation and joint legal custody. A hearing on the motion was held. The trial court entered an order on June 30, 2010, that required Father to ensure that D.L.H. received his prescribed medication while D.L.H. was in Father's care and Mother to make a good faith effort to take D.L.H to religion education classes.The order further provided that Mother and Father have joint legal custody of D.L.H., with primary physical custody remaining with Mother. Father was also granted additional visitation time with D.L.H.
[¶8.] In May 2012, Father filed a motion for change of custody with the trial court. At a hearing on September 26, 2012, Fay, Mother, Father, and Stepmother testified. Fay testified that "[a]t this point in his development, [D.L.H.] would benefit from having a strong, healthy relationship with an adult male to role model after at this point." Fay also stated that D.L.H. expressed a desire to live with Father. She further testified that both Mother and Father are good parents with both having different styles ...