#25073-a-DG 2010 SD 12 IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA * * * * KELLY JO KREPS, Plaintiff and Appellant,

v. JASON ALAN KREPS, Defendant and Appellee. * * * * APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT LINCOLN COUNTY, SOUTH DAKOTA * * * * HONORABLE DOUGLAS E. HOFFMAN Judge * * * *

RONALD A. PARSONS, JR. of Johnson, Heidepriem, Abdallah & Johnson, LLP Sioux Falls, South Dakota Attorneys for plaintiff and appellant. GREGORY T. BREWERS of Strange, Farrell, Johnson & Brewers, PC Sioux Falls, South Dakota Attorneys for defendant and appellee. * * * * ARGUED OCTOBER 5, 2009 OPINION FILED 

### 02/10/10-1- #25073 GILBERTSON, Chief Justice [¶1.] After a custody trial, Father re ceived primary physical care of the three children born during the marriage. Mother appeals contending the trial court abused its discretion when it did not cons ider her status as the primary physical parent as paramount to all other child custod y factors. Mother also argues the trial court abused its discretion when it allegedly failed to accept the custody evaluator’s report and failed to focus on the entire evidentiary record. We affirm. FACTS [¶2.] Jason Kreps, age thirty-eight at the time of trial in September 2008, and Kelly Jo Kreps, age forty-four at the ti me of trial, began dating in 2002. The couple became pregnant with their first ch ild in the fall of that year. The couple married in January 2003, and their son Dy lan was born on June 23, 2003, in Des Moines, Iowa, where the couple resided. [¶3.] During the time the couple date d, Jason assisted Kelly with finding a lawyer to help her get reinstated into medical school. Kelly was able to complete her medical degree in the spring of 2004. She then accepted a residency in Kirskville, Missouri, a community three to four hours south of Des Moines, which was anticipated to last four to five years. During Kelly’s residency, Jason was able to reduce his work week to just three days a week. He spent the other four days in Kirksville taking care of Dy lan while Kelly was working. Jason would often bring Dylan back to Des Moines with him, and while Jason worked Dylan would stay at the family home with a baby sitter until around 3 p.m. when Jason would return from work. Dylan would sometimes stay in Kirksville for the three days while#25073

-2- Jason worked in Des Moines, but due to th e lack of a suitable baby sitter and Kelly’s long hours in the residency program it beca me difficult for her to care for Dylan. After four months in Kirksville, Kelly re signed from the residency program and returned to Des Moines in the fall of 2004. With the help of her relatives, Kelly was able to find a position in a residency program in Sioux Falls, South Dakota, to commence in June or July of 2005. [¶4.] The couple planned to relocate the family to Sioux Falls over the summer. At that time, they found out they were expecting twin girls. Kelly’s due date for the twins was December 13. [¶5.] By early summer of 2005, the mari tal relationship became strained. Communication between the couple was poor . The parties reached a breaking point when an argument between them ended in Kelly calling the police who arrested Jason. An automatic restraining order was entered against him. Jason was originally charged with domestic assault. The domestic assault charge was dropped and Jason received a deferred sentence on a disorderly conduct charge. [¶6.] Kelly moved to South Dakota in June of 2005 and served Jason with divorce papers in July and a petition fo r custody of Dylan. For the first three months Kelly was living in Sioux Falls with Dylan, the divorce and custody petition were pending in Iowa. While the custody pe tition was pending, Kelly did not permit Jason more than a few hours of visitation with Dylan at any one time. [¶7.] On August 17, 2005, the Iowa Di strict Court for Polk County entered a temporary custody and visitation order. That order granted the parties joint legal custody with Kelly having primary physical custody of Dylan. The order provided#25073

-3- Jason twice a month visitation with Dyla n from Wednesday through Sunday, which required each party to drive to Sioux City , Iowa, to exchange Dylan. The order did not address visitation with the yet to be born twin girls. [¶8.] The twins were born by planne d cesarean section in late November 2006, two weeks before their original due da te. Kelly did not inform Jason the girls were to be delivered on that date. Kelly’s sister contacted Jason to advise him of their births shortly after the cesarean se ction had been performed. Kelly also named the twins without his input. Jason immediately filed a motion for visitation with the twins, but Kelly re sisted it contending the Io wa court lacked personal jurisdiction over the twins. For the next twelve months after th e birth of the twins, Kelly was able to determine whether and ho w Jason would have visitation with the twins without any direction by either the Iowa court or a South Dakota court. [¶9.] Kelly determined that she would permit Jason to see the twins for onehalf hour before Jason picked up Dylan for his scheduled visitation twice each month and another half hour when he retu rned Dylan after visitation. These half hour visits were conducted in a motel lo bby in Sioux Falls. Kelly informed Jason that her breast feeding schedule did not allo w for additional visitation other than in half hour increments twice a month. In th e fall of 2006, Kelly al so raised concerns about Jason and his fiancée, Shelli Robert son, smoking around the children, an accusation that was eventually determined by the trial court to be meritless and an effort to further limit Jason’s visitati on and contact with the children. [¶10.] While living in South Dakota, Kelly also established a pattern of taking the children to routine and emergency medical appointments without telling#25073

-4- Jason until after the visit. Kelly unilaterally determined that it was sufficient to advise Jason within twenty-four hours afte r such an appointment had taken place. This precluded Jason from being a part of the discussion of the children’s medical issues. Kelly’s pattern was cited by Jason as another effort on her part to limit his involvement in the children’s lives. [¶11.] In October 2006, the Iowa cour t dismissed the pending visitation motion and the custody proceedings so th at a South Dakota court could determine these issues. Jason immediately filed a motion with the Lincoln County circuit court for custody of the three children and for the appointment of a custody evaluator. In December 2006, the trial co urt ordered temporary joint legal custody and primary care with Kelly. That order gr anted Jason visitation with all three of the children every weekend, wi th three weekend visits per month in Sioux Falls and one in Des Moines. Jason was granted fo ur hours of time with the twins on Saturdays from noon to 4 p.m., and anothe r three hours on Sund ays from 11 a.m. to 2 p.m. in order to balance their breast f eeding schedule with visitation with their father. The trial court left the holidays open for Jason and Kelly to negotiate and determine how to implement an alternating holiday visitation schedule. A custody evaluation was also ordered, and each party was required to either agree to an evaluator or submit their proposals for an evaluator by December 22, 2006. The parties were also ordered to attempt to mediate both custody and visitation, with mediation to be completed by January 31, 2007. [¶12.] The parties selected Dr. Andr e Clayborne as their mediator, and mediation was attempted in May. Wh en mediation was not successful, Dr.#25073

-5- Clayborne later assumed the responsibilities as the custody evaluator. Originally scheduled for completion by the end of December 2006, home studies were delayed and Kelly’s misplaced psychological evaluation caused the process to extend into the spring of 2007. [¶13.] During the evaluation process, Jason argued that Kelly continued to complicate visitation by not showing up at agreed upon times, refusing to bring the children to Des Moines, refusing to work out an alternating holiday visitation schedule as required by the temporary cust ody order, and at times ignoring Jason’s attempts to communicate with her. In the fall of 2008, the children missed three scheduled visitations in Des Moines with Jason over a twelve-week period due to Kelly’s unwillingness or inability to travel and her refusal to permit the visitations in Sioux Falls. [¶14.] Kelly also refused to provide Jas on with contact information, records, or reports from the various daycare provid ers she had used since moving to South Dakota, which included three different nannies and two or three daycare facilities. Jason was able to locate the most recent daycare used by Kelly and called to get more information. The daycare director told Jason she would be happy to provide information once Kelly called and confirmed th at it could be shared with him. Kelly refused to approve the sharing of any information with Jason regarding the children by the daycare facility. Despite two atte mpts to subpoena records from the daycare provider as to the hours spent there by th e children, cost, and pr ogress by Dylan in the pre-school program, the daycare claimed such documentation did not exist. This left Jason without any information about how the children were cared for while#25073

-6- Kelly was at work, or the ability to participat e in childcare decisions. All that Jason could ascertain was that the children were generally in daycare Monday through Friday from before 8 a.m. when Kelly ha d to arrive at work, until her work day concluded. Kelly also placed the childre n with neighbors and family when she was on-call in the evenings or weekends and needed to be at the hospital, but the amount of time the children spent in dayc are was not disclosed by Kelly even when questioned at trial. [¶15.] Despite repeated attempts by Jason, Kelly also refused to discuss whether Dylan should attend kindergarten in the fall of 2008 at age five or wait until the following year. Kelly discussed the matter with friends and family, but allowed the time to enroll Dylan to expire without any input from Jason. Jason was forced to accept Kelly’s unilatera l decision on the matter. [¶16.] Dr. Clayborne concluded in his custody evaluation report that both parents were fit. He also reported that he believed that Kelly had been the primary care parent when the couple was married. Based on Kelly’s statements and focus on the issue during her interview, Dr. Cl ayborne reported that he believed Kelly would be slightly more favored in support ing the other parent’s relationship with the children. However, Dr. Clayborne report ed to the court that it would not be in error placing the children in either parent’s care. Nevertheless, Dr. Clayborne recommended that Kelly remain the primary care parent, with Jason receiving liberal visitation. Finally, Dr. Clayborne’s report indicated that “[i]n review of the documentation, this evaluator did not find any information which would suggest the children would significantly benefit from a change in custody.”#25073

-7- [¶17.] On September 24, 2008, trial on the matter was finally held. At that time, Dylan was five and the twin girls were almost three years old. During his testimony, Dr. Clayborne testified that in his report he had recommended Kelly have primary physical care. He also stated : “But again, I don’t see that Jason could not be in that position.” Dr. Clayborne al so conceded on cross-examination that the numerous delays in the proceeding worked to Kelly’s advantage in giving her more time as the primary care parent, which tran slated to more time to bond with the children prior to the custody hearing. Fina lly, Dr. Clayborne testified that when he asked Jason and Kelly whether the visitati on was working, both Jason and Kelly replied that it was. [¶18.] After trial on the matter, the trial court entered 107 findings of fact and numerous conclusions of law. It foun d that all three children had formed a strong parental bond with both parents and a good relationship with Ms. Robertson. The trial court also found that prior to Kelly moving to South Dakota, Jason and Kelly appeared to have shared equally as the primary caretaker for Dylan. The trial court further found that the evidence suggested both parties were at equal fault for the disturbance that resulted in domestic assault charges against Jason in the summer of 2005. [¶19.] With regard to the issue of which parent had served as the primary care parent, the trial court found that Kelly had been the primary physical caretaker for the children since moving to South Dakota. The trial court further found that Kelly had caused significant de lays in the custody evaluation and legal proceedings, which gave her an advantage as the primary care parent during the#25073

-8- time the matter was pending. While it determined that the children had spent significantly more time in Kelly’s home than they had in Jason’s, the trial court found no substantial evidence to suggest the children would not be able to quickly and fully adjust to spending the majority of their time in Jason’s home. It also found that the evidence suggested the ch ildren had formed a somewhat closer attachment to Kelly as opposed to Jason due to being in Kelly’s primary care. However, the trial court was convinced that strong and healthy attachments to Jason and Ms. Robertson and Jason’s extended family existed such that the children were not likely to experience any significant difficulty adjusting to Jason as the primary care parent. [¶20.] The trial court also found Kelly had demonstrated a “profound lack of ability or willingness to maturely encourage and provide frequent and meaningful contact between the children and Jason, and had failed to foster the children’s relationship with Jason.” The trial co urt gave significant weight to Kelly’s deficiencies in this regard. It furthe r found that the “detrimental effects and potential effects of Kelly’s attempts to alie nate the children from Jason significantly outweigh the benefits of keeping the childre n in Kelly’s primary physical custody.” [¶21.] With regard to Jason, the trial co urt found him to be the more credible witness. It also found that Jason wa s the parent most willing to maturely encourage and provide frequent and meaningful contact between the children and other parent. The trial court strongly favored Jason in this regard. [¶22.] The trial court also found Jason demonstrated the greatest commitment to prepare the children for responsible adulthood, and a greater ability#25073

-9- to provide exemplary modeling of what it me ans to be a good parent, loving spouse, and responsible citizen. It also found if the children were in Jason’s custody, they would be likely to spend less time in dayc are due to Jason’s flexible work schedule and Ms. Robertson’s assistance, compared to Kelly’s long hours as a resident, which required the children to be in daycare most days before 8 a.m. It found that Jason had strong relationships with his extended family. [¶23.] The trial court did not find Kelly’ s role as primary care parent for the past two and one-half to three and one-half years to be a satisfactory experience. It concluded that the best interest of the children required them to be placed in Jason’s primary physical care, subject to Kelly’s right to exercise reasonable and liberal visitation. Kelly was granted visi tation every other weekend and alternating holidays, with an extended summer visita tion period of nine weeks. In its conclusions of law, the trial court reviewed the Fuerstenberg v. Fuerstenberg , 1999 SD 35, 591 NW2d 798, factors in detail, but did not a lign each finding of fact under one of the factors. [¶24.] Kelly appeals raising one issue: Whether the trial court abused its discretion in rejecting the custody evaluation and removing the children from the primary caretaker. STANDARD OF REVIEW [¶25.] This Court recently reiterated the standard of review for child custody decisions: Child custody decisions are reviewed by this Court under the abuse of discretion standard of review. The credibility of witnesses and the weight afforded to their testimony is also within the discretion of the tr ial court. “ ‘[A]n abuse of#25073

-10- discretion refers to a discretion exercised to an end or purpose not justified by, and clearly agains t reason and evidence.’ ” An abuse of discretion occurs in a child custody proceeding when the trial court’s review of the tr aditional factors bearing on the best interests of the child is scant or incomplete. The broad discretion of a trial court in ma king child custody decisions will only be disturbed upon a finding that the trial court abused its discretion. Pietrzak v. Schroeder, 2009 SD 1, ¶37, 759 NW2d 734, 743 (internal citations omitted). Furthermore, we will uphold the trial court’s findings of fact unless they are clearly erroneous. Id . (citing Anderson v. Anderson , 472 NW2d 519, 520 (SD 1991)). “We will overturn the trial court’s fi ndings of fact on appeal only when a complete review of the evidence leaves the Court with a definite and firm conviction that a mistake has been made.” Id . (quoting Miller v. Jacobsen , 2006 SD 33, ¶19, 714 NW2d 69, 76). ANALYSIS AND DECISION [¶26.] The best interest of the child st andard is used by a trial court when parents seek an initial judicial determinatio n of the custody of their children. Kolb v. Kolb, 324 NW2d 279, 283 (SD 1982). Such a hearing does not require that the party requesting a change in a temporary custody order show a substantial change in circumstances. Id . The trial court considers the children’s temporal, mental, and moral welfare in determining the best interests of the children. Fuerstenberg, 1999 SD 35, ¶22, 591 NW2d at 806 (citing SDCL 25-5-10; Jopling v. Jopling , 526 NW2d 712, 717 (SD 1995)). The trial court may, but is not re quired to, consider the following factors in determining the best interests and welfare of the child: parental fitness, stabilit y, primary caretaker, child’s preference, harmful parental mi sconduct, separating siblings, and substantial change of circumstances. Id., 1999 SD 35, ¶¶#25073

-11- 24-34, 591 NW2d at 807-10. When considering parental fitness, a court may consider: (1) mental and physical health; (2) capacity and disposition to provide the child with protection, food, clothing, medical care, and other basic needs; (3) ability to give the child love, affection, guidance, education and to impart the family’s religion or creed; (4) willingness to maturely enco urage and provide frequent and meaningful contact between the child and the other parent; (5) commitment to prepare the child for responsible adulthood, as well as to insure that the child experiences a fulfilling childhood; and (6) exemplary modeling so that the child witnesses firsthand what it means to be a good parent, a loving spouse, and a responsible citizen. Pietrzak , 2009 SD 1, ¶41, 759 NW2d at 744 (citing Fuerstenberg, 1999 SD 35, ¶24, 759 NW2d at 807-10). [¶27.] Kelly argues on appeal that th e trial court abused its discretion in removing the children from her primary physical care for three reasons. First, Kelly contends the trial court improperly disregarded Kelly’s position as the primary caregiver. Next, she argues that the trial court acted improperly when it rejected the custody evaluator’s finding that Kelly was favored as the parent more encouraging of the children’s relationship with the other parent. And finally, Kelly argues that trial court erred because it provided no rationale specifically explaining its rejection of the custody evaluator’s recommendation and that the court’s stated reasons for preferring Jason were eith er irrelevant or lacked a sound and substantial basis in the record. Kelly cont ends that a trial court that rejects the most critical recommendation made by a custody evaluator should at least explain in some specific details why it has done so.#25073

-12- Primary Physical Care [¶28.] Under her first argument, Kelly offers the proposition that the parent who served as the primary caretaker should be the primary factor in determining child custody disputes because it is in the first order of priority in the listing under
the Fuerstenberg factors. 1 Kelly relies on the fact th at many jurisdictions give preference to the primary caretaker in chil d custody determinations as noted by this Court in Price v. Price , 2000 SD 64, ¶32, 611 NW2d 425, 433. [¶29.] We have acknowledged that othe r jurisdictions place greater emphasis on this factor than others. Id . (citing Fuerstenberg , 1999 SD 35, ¶28, 591 NW2d at 808). However, we have always been clea r that the trial court analyzes various factors in making custody determinations , including which parent served as the primary caretaker of the children. Id . ¶18, 611 NW2d at 430. We have never held that this factor should prevail over all other factors a trial court may consider. Rather, this factor assists the trial cour t in determining which of the parents was more devoted to the children prior to the custody dispute, as well as “which parent invested predominant time, care and consistency in raising the child.” Id. ¶33, 611 NW2d at 433 (quoting Fuerstenberg , 1999 SD 35, ¶28, 591 NW2d at 808). A trial court should “utilize ‘a balanced and [ systematic ] approach’ under th e best interests

1. This argument is without support in the authorities cited by Kelly in that in both Price and Fuerstenberg , this Court’s analysis considered the primary physical care factor after the pare ntal fitness and stability factors. See Price , 2000 SD 64, ¶¶19-35, 611 NW2d at 430-34; Fuerstenberg , 1999 SD 35, ¶¶24- 28, 591 NW2d at 807-09.#25073

-13- standard.” Pietrzak , 2009 SD 1, ¶37, 759 NW2d at 743 (quoting Fuerstenberg , 1999 SD 35, ¶23, 591 NW2d at 807). [¶30.] In the instant case, the trial court determined that Jason and Kelly both provided primary physical care for Dyla n while the couple lived in Des Moines. This finding of fact is suppo rted in the record in that Jason and Kelly both testified that while Kelly was in Ki rksville, Missouri for her residency, Jason provided primary care for Dylan in Kirksville during the four days per week he was there and not at work, and then provided care at the family home in Des Moines during the evenings after returning from work when Dylan was often with Jason in Des Moines. At the time Kelly moved to Kirksville, Dylan was approximately ten months old. For the next four months of Dylan’s life, Jason provided primary care. Furthermore, while the record does not sp ecify which parent provided the majority of the care before Kelly moved to Kirksville , it does indicate that while Jason was working, Kelly was finishing her medical sch ool training during the first ten months of Dylan’s life. The trial court’s conclusi on that the couple shared primary care while living together in Des Moines is supported by the record. [¶31.] With regard to Kelly’s role as the primary care parent after she moved to Sioux Falls, the trial court found that Kelly had served in this capacity by manipulating the custody evaluation and the timeline for the legal proceedings in order to log more time as the primary care giver. Kelly also denied Jason visitation during this time, which helped ensure the children were more bonded to her than to Jason by the time the custody trial was heard.#25073

-14- [¶32.] The trial court considered the pr imary care parent factor carefully and fully and weighed it against the other six Fuerstenberg factors, and its findings of fact are supported by the record. We see no evidentiary error in the trial court’s findings of fact for this single Fuerstenberg factor, or in its conclusion of law that this factor did not weigh in favor of pr imary care being placed with Kelly. Trial Court’s finding that Kelly was not the parent more likely to encourage the children’s relationship with the other parent contradicted the evaluator’s report. [¶33.] Kelly next argues that the tria l court erred when it disregarded the custody evaluator’s finding that Kelly was the parent more likely to encourage the children’s relationship with the other pare nt. Dr. Clayborne’s report stated as follows: Regarding which parent will be supportive of the other parent’s relationship with the children, th is evaluator would suggest that either parent could be favored in this area. That being stated, Kelly was definitely the parent to talk about this issue. Even though she may not agree with some of Jason’s values or attitudes, she stated a clear aw areness of the importance of Jason participating within each of the children’s lives. Kelly argues that there is no support in the record for the trial court’s contrary finding that “Jason is the parent most willing to maturely encourage and provide frequent and meaningful contact between the children and the other parent. Jason is strongly favored in this regard.” [¶34.] “[J]udges, not custody evaluato rs, have the responsibility to make custody decisions.” Maxner v. Maxner, 2007 SD 30, ¶17, 730 NW2d 619, 623. The trial court is not required to abide by th e findings of the custody evaluator, but rather appoints the independent evaluator to perform an objective custody analysis. Id . ¶15. However, the custody evalua tor’s analysis can be mistaken. Id . For this#25073

-15- reason, a custody evaluator’s report is used as part of the evidence, not as the only evidence available to the trial court. See id . ¶18, 730 NW2d at 624. Using all the evidence at its disposal, the trial courts considerable discretion in determining custody disputes is guided by the best interests of the child standard using the multiple Fuerstenberg elements to guide it. Id . ¶17. There is no requirement in our case law for trial court’s to adhere to the recommendations in a custody evaluation.[¶35.] As Dr. Clayborne admitted at trial, he relied on what the parties selfreported in making some of his assessment s. In the instant case, the trial court determined that Jason was a more credible witness than Kelly. It also found that Kelly had blocked Jason’s contact with the children on several occasions, attempting to alienate the children from him, and regard ed the children as more hers than his. Although Kelly strongly disput es it, there is an evidenti ary basis in the record to support these findings of fact. [¶36.] Dr. Clayborne’s report did give a preference for Kelly’s retention of custody. However, it found that both pa rents were fully capa ble of successfully raising the children as a custodial parent. Dr. Clayborne did not have the benefit of observing Kelly at trial where her statements were subject to cross-examination and testing. [¶37.] This becomes more significant gi ven Kelly’s lack of credibility with the trial court. “An expert’s testimony is no more reliable that its foundation. It proves nothing without a supportive factual basis. It may prove little if only partially supported by a factual basis.” In re M.H., 2005 SD 4, ¶15, 691 NW2d 622, 627 (internal citations omitted). Although Dr . Clayborne concluded otherwise, the trial#25073

-16- court did not abuse its discretion in determ ining that custody with Jason was in the best interests of the children. Trial Court’s stated reasons for preferring Jason over Kelly have an evidentiary basis in the record. [¶38.] Kelly argues that the trial court stitched together three anecdotes, based on bare assertions by Jason, to ar rive at the conclusion that Kelly was engaged in an effort to alienate the child ren from Jason. She cites as those three anecdotes the naming of the twin girls with out consulting Jason, Kelly’s decision to breast feed the twins that resulted in minimal cont act between them and Jason during this period, and Ke lly’s failure to consult Jas on regarding whether Dylan should enter kindergarten at age five or wait another year. Kelly attempts to narrow this Court’s review down to these three examples noted by the trial court, rather than focusing on how these exampl es, and numerous others, were utilized by the trial court in assessing the Fuerstenberg factors to arrive at its conclusion that it was in the best interest of the child ren to be in Jason’ s primary care. [¶39.] The trial court found that Kelly viewed the children as more hers than Jason’s, blocked contact with Jason, attempte d to alienate the children from him, and did not involve him in medical, educatio nal, and daycare decisions. There were more than these three examples cited in the trial court’s findings of fact and in the record to support the ultimate custody decision. In addition, Jason was repeatedly denied reasonable time with his children du ring holidays and with the twins for the first year of their lives. As a consequence, Jason was forced to file motions with the court for almost every holiday due to Kelly’s refusal to negotiate an alternating holiday schedule as ordered by the tr ial court in December 2006. He also had to#25073

-17- seek court orders to estab lish reasonable visitation with the twins, which was not established until the twins were one-year-old. [¶40.] Kelly asks this Court to retry the case by identifying a few examples rather than viewing the record as a whole in light of the Fuerstenberg factors. This we will not do. The trial court entered 107 fi ndings of fact that have support in the record. It then entered conclusions of law based on its findings of fact in which it addressed the Fuerstenberg factors. It engaged in a balanced and systematic approach under the best interests standard . The result was a determination that addressed what the trial court believed to be in the best interests of the children based on all the evidence submitted. We find no abuse of discretion by the trial

court. [¶41.] Affirmed. [¶42.] ZINTER, MEIERHENRY, and SEVERSON, Justices, concur. [¶43.] KONENKAMP, Justice, dissents.

KONENKAMP, Justice (dissenting). [¶44.] Judicial decisions on children’s li ves deserve our highest effort. Here is no place for perfunctory procedure. For this reason, I cannot endorse the trial court’s flawed process. Although the cour t at the close of trial issued an oral decision from the bench, which remarks form part of the written findings, much of the findings the court later signed as pr oposed by winning counsel reflect not the expression of independent judicial thought but the rhetoric of adversarial excess.#25073

-18- [¶45.] If trial courts fail to “make care ful study of the suggested findings in all their bearings before making them offi cial, [it] is quite liable to lead to bad results.” Harrigan v. Gilchrist, 99 NW 909, 993 (Wis 1904). The fact findings and conclusions this Court points to as ex emplifying a sound decision were, in substance, largely conceived by the winning side. With the exception of three handwritten stylistic changes the trial court made, all the findings proposed by the father’s attorney were adopted verbatim. Many of these findings are overreaching and, in several instances, wholly self serving. [¶46.] Of all the cases on a trial court’ s docket, child custody disputes may be the most difficult and contentious. Ye t judges must remain above the fray. “Balanced and methodical,” a judge's custody decision should reflect impartial patience and careful deliberation and be couched in the court's own dispassionate language. Fuerstenberg v. Fuerstenbe rg, 1999 SD 35, ¶35, 591 NW2d 798, 810. Findings tainted with one-sided excess fail to promote the appearance of neutrality and fairness. [¶47.] Under our rules of civil procedur e, “In all actions tried upon the facts without a jury . . ., the court shall . . . find the facts spec ially and state separately its conclusions of law thereon. . . .” SDCL 15-6-52(a). “Alternatively, the court may direct counsel for the prevailing party to prep are findings[,]” and, upon expiration of the applicable time limits for proposed findings and objections, “the court shall make or enter such findings and conclusions as may be proper .” SDCL 15-6-52(a) (emphasis added). By using the term “as may be proper,” the rule contemplates that judges will study the proposed find ings, eliminate everything not suitably a#25073

-19- part of the determination, add what may have been self-servingly left out, and ensure that all material facts and app licable laws are covered. In the end, attorneys can draft findings for the court; they cannot make findings for the court. [¶48.] Certainly we have held that absent “becoming a judicial rubber stamp,” a court has the “discretion to adopt those findings of fact and conclusions of law which it deems most appropriate, regardless of their source.” See Feldhaus v. Schreiner, 2002 SD 65, ¶14, 646 NW2d 753, 757. But uncritical acceptance of lawyer-prepared findings can never be condoned, and Feldhaus should not be read as an unreserved endorsement for a trial co urt signing verbatim findings prepared by the prevailing party. Indeed, in Feldhaus , we cited with approval a case suggesting that appellate courts should scrutinize more carefully and give less weight to findings prepared by counsel than those findings prepared by trial judges themselves. Id . (citing Leftwich v. Leftwich, 442 A2d 139 (DC 1982)); see also Shapiro v. Reg’l Bd. of Sch. Trust ees of Cook County, 451 NE2d 1282, 1287 (IllCtApp 1983). [¶49.] There are good reasons why our ru les require trial courts to “find the facts specially” and “state separately” their co nclusions of law, or to take only those proposed findings and conclusions “as may be proper.” See SDCL 15-6-52(a). It is a recognition that decision making is a proc ess, not simply a result. Trial judges who formulate their own findings and conclusion s can be satisfied that they have fully and fairly dealt with all the is sues before deciding a case. See Roberts v. Ross, 344 F2d 747, 751 (3dCir 1965), superseded in part as recognized in Lansford-Coaldale Joint Water Auth. v. Tonolli Corp., 4 F3d 1209 (3dCir 1993). And, just as#25073

-20- important, the litigants and the reviewing court can know that the judge thoroughly considered all the relevant fa cts and issues involved. [¶50.] Careful attention to the findings offers the assurance, as Judge Wisdom wrote, “that the trial judge did in deed consider all the factual questions thoroughly and would guarantee that each word in the finding is impartially chosen[.]” Roberts , 344 F2d at 752 (citing Louis Dreyfus & CIE v. Panama Canal Co., 298 F2d 733, 738 (5thCir 1962)). On the other hand, if a judge “rubber-stamps the findings and conclusions presented by the winning party . . . it is indeed winning counsel who has disposed of the ca se in a manner that he thinks will be most advantageous to his clie nt and least subject to succe ssful attack on appeal.” In

re the Marriage of Jensen, 631 P2d 700, 706 (Mont 1981) (Shea, J., concurring). [¶51.] So it is here that although the trial judge did not exactly “rubber stamp” counsel’s proposed findings, many of the findings nonetheless reflect such imbalance that they cast substantial doubt on the court’s process. 2 A few extracts from the trial court’s findings will suffice to demonstrate this concern. In its bench decision, the court said, “I don’t think evidence suggests one or the other is a better parent. In fact, the evidence from Dr. Clayborne is that they would both be excellent parents and are excellent parents. ” But the written findings declare the father to exhibit “the greatest parental fitn ess in regard to an ability to provide the primary care for these children.” Accord ing to finding 86, the mother, in her

2. The court handwrote the following changes in the findings: Finding 97, added “or supplements.” Finding 99, adde d “and does so find” and “further.” Finding 101, added “reasonable and liberal.”#25073

-21- handling of visitation, was guilty of “harmf ul parental misconduct which has been detrimental to the children. . . .” But in its bench comments, the court said nothing about the children having exhibited any detrim ent, and the record is barren of such evidence. According to the neutral custod y evaluator’s personal observations, “the children are bonded and have a good relationship with both parents. They appeared comfortable and safe while in the care of each of their parents.” [¶52.] During the custody investigat ion process, the mother expressed concern about the father and his fiancé smok ing in the presence of the children. In the findings, we read that “the court finds that [the mother’s] accusations in regard to smoking around the children were made in an effort to justify further limitation of [the father’s] visitation and contact with the children.” Yet, at trial, the father admitted that he and his fiancé both smoked . He testified: “We never smoked in the house. Shellie and I have subsequent ly quit smoking.” He assured the court that he knew it “was not a healthy thing[ .]” Why, then, would the mother’s concern about this translate into a finding of obst ruction? How would she know whether the father and his fiancé were still smoking and where? [¶53.] The findings contain more of these one-sided inferences and contrived inadequacies. In the latte r part of finding number 75, for example, the court announces there is “little evidence to indicate that the children have a strong relationship with any of [the mother’s] exte nded family.” Fact findings should be based on fact, obviously, having some connect ion to the evidence produced at trial. No evidence supports this finding. No t the custody evaluation. Not even the father’s testimony.#25073

-22- [¶54.] Repeatedly, in connection with visitation, we see language in the findings describing the mother as having “demonstrated a pattern,” “a profound lack of ability or willingness,” a “pronounc ed inability or willingness,” all raising “serious concerns,” manifesting “deficiencies .” But nowhere in the findings is there a single statement that the mother violated any court order on visitation. She is faulted for not granting the father “addition al” or “extra” time with the children. And even though it was beyond contenti on that the children were “more closely attached” to the mother, especially the twins, such was deemed in the findings to be a “minimal advantage.” [¶55.] In the spring of 2005, the father was arrested for domestic assault on the mother. He later received a deferred se ntence on a reduced charge of disorderly conduct. The mother testified at trial that she thought the father was going to kill her. Apparently unsure, the court, when it commented on this at the close of trial, remarked that “none of us will ever be able to fully sort out what happened that night.” Yet as crafted by the father’s attorney, the court’s finding number 43 proclaims: “The evidence suggests that bo th parties were most likely at equal fault during the disturbance which led to [the father’s] arrest.” [¶56.] Initially, there was a restraining order, but it was eventually lifted. That summer, divorce proceedings commenced in the Iowa courts, and the mother, an M.D., moved to Sioux Falls to begin a me dical residency. On November 29, 2005, she gave birth in Sioux Falls to twin girls, Faith and Grace. During these times, by the parents’ own admissions, they were unable to talk with each other. Communication between them was “primarily by means of email.” As the custody#25073

-23- evaluator testified, “[T]he communication betw een these two people is just -- is just non-existent. It’s just not there. I think they both tend to hear things from their own vantage point, and that is a major -- of a major concern.” Yet the findings, while acknowledging that "both parents ha ve experienced some difficulty with the communication between one another," heap the blame for lack of communication on the mother and deduce that it was all do ne to deny the father contact with the children. [¶57.] More disturbing are the findings on the mother’s decision to nurse the parties’ twin daughters. Even infant nur sing was portrayed in the court’s findings as an obstruction. Finding number 97: [The mother’s] decision to nurse the children was taken to an extreme, and she perceived her interest in nursing the children as superior to that of [the father’s] right to develop a meaningful relationship with the children at an early age. [The mother] failed to pursue reasonable altern atives or supplements to the breast feeding, which alternatives would have not interfered with [the father’s] relationship with the children. This finding does reflect the court’s rath er uninformed oral remarks. The court said, “I see no reason why these children should not have been able to travel and spend significant time in overnight visits with their father within weeks of their birth.” [¶58.] First of all, the father was liv ing in West Des Moines, almost three hundred miles from Sioux Falls, and he did see the girls when he ca me to pick up or drop off their older son, Dyla n. His contention was that visiting the girls in a hotel lobby for an hour every two weeks was not sufficient. Clearly that was inadequate#25073

-24- time. But it was the father who testifie d that at his insistence he needed “the exchanges to occur in a public location.” Hence they agreed to meet in a hotel lobby. [¶59.] Second, for over a year after th eir birth there was no court order in place regarding visitation for these infants. If there had been an order entered in accord with South Dakota’s shared pare nting guidelines, the father would have been able to see his daughters more, especia lly as they grew older, but he would not have been able to take these nursing infa nts to West Des Moines “to travel and spend significant time in overnights visits.” See SDCL ch. 25-4A (Appendix A, Guidelines 2.2 and 2.3). [¶60.] In fact, when the case finally ca me up for a hearing on interim visitation, another circuit judge heard th e matter in December 2006 and noted that extended overnight vi sitation for these babies was not practical: “If you folks were living within a few miles, ten, fifteen, twenty miles of each other, the court would be looking at contact anywhere from two to three times a week or for two or three hours at a time, and even depending upon the relationship that exists, maybe an overnight visit. But that’s not realistic he re.” Nonetheless, despite our guidelines and the other judge’s ruling, the mother’s “extreme” nursing became yet another ground in the court’s findings to justify placing primary physical custody with the father. [¶61.] Most troubling are those matte rs absent from the findings. On October 18, 2007, the trial court appointed a neutral child custody expert, Dr. Andre B. Clayborne, to perform a home study ev aluation. Dr. Clayborne’s single-spaced, twenty-two page report was completed on May 26, 2008. He thoroughly examined#25073

-25- the children’s situation, the parents’ hist ory, and their psycho logical profiles. Separate testing was conducted, collateral contacts were reviewed, and the parents’ assessments of each other’s capabilities were explored. In preparing his report, Dr. Clayborne conducted home visits with the children at both the mother’s home in Sioux Falls and the father’s home in West Des Moines. He found the children to be bonded to both parents. In the final an alysis, however, he recommended that the mother “continue to be the children’s pr imary care parent,” with the father receiving liberal visitation. He also no ted that he “did not find any information which would suggest the children would si gnificantly benefit from a change in custody.” Quite the opposite, according to Dr. Clayborne, “there was information suggestive that separating the children from their primary caregiver may actually be detrimental to them.” [¶62.] To be sure, no court is bound by a custody evaluator’s recommendation. We have long held that decision makers ar e entitled to disregard an expert’s opinion if it is found to be unworthy of creden ce. Still, the reasons for having a courtappointed professional custody evaluation are compelling. Experienced evaluators can assist judges in piercing the facade parents sometimes display in court. Observing children interacting with their parents in their homes opens a door through which judges themselves cannot ente r. In a courtroom setting, only a few hours may be available to assess parentin g abilities, a poor substitute for the onthe-ground comprehensive view a professi onal custody evaluator can provide. [¶63.] One would expect, therefore, that before a court disregards a custody recommendation from its appointed expert, the court would at least make findings#25073

-26- explaining its reasoning. After all, neither side questioned Dr. Clayborne’s credentials or the quality and accuracy of his evaluation process. In the attorneyprepared findings, though, no mention of Dr. Clayborne’s ultimate custody recommendation can be found, much less an y explanation for why it was rejected. How does a balanced and methodical decision maker justify not even considering the custody recommendation made by th e court’s own appointed expert? [¶64.] Unquestionably, there was testimon y by the father on his frustrations in communicating with the mother on all ma tters dealing with their children. Even if the court accepted these gr ievances undigested, to base the decision on one issue — inability to agree on childcare and visitati on — is to ignore the totality of factors a court should examine as set forth in Fuerstenburg . Those factors were recited in the findings, but the decision hinged on th e mother’s perceived ob struction. “Child custody disputes should not be decided solely on a listing of faults ascribed to one parent[.]” Fuerstenberg , 1999 SD 35, ¶23, 591 NW2d at 807. To reason that because the mother, the primary caregiver, was recalcitrant on visitation custody must be awarded to the father is to pose a false choice. With these noncommunicating parents, no matter which parent had primary custody, a rigid visitation schedule was going to be necessary. Besides, the concerns the father brought up about the mother obstructing his relationship with the children were not borne out in the custody evaluation. In fact, Dr. Clayborne testified that the father’s animosity toward the mother “makes me hesitate just a little bit” about whether he would foster a healthy relation ship between mother and children. But,#25073

-27- Dr. Clayborne thought “he probably would. ” As for the mother, Dr. Clayborne had no hesitancy. [¶65.] Despite my grave reservations about the trial court’s decision, I cannot say that the court’s ultimate ruling on custody was wrong. If Dr. Clayborne’s evaluation deserves any consideration, it must be acknowledged that while he did testify that “making a change at this poin t might be more concerning and could be potentially damaging to the kids,” he also said, “I don’t think the court would err in placing these kids in either parent’s primary care.” [¶66.] Nonetheless, the process used in rendering this decision was flawed. True, our standard of review is abuse of discretion, and choosing between two satisfactory parents “falls within a judge’ s discretion.” Arneson v. Arneson, 2003 SD 125, ¶14, 670 NW2d 904, 910. But that does not end our inquiry on appeal. If it did, then every custody dispute between fit parents would be unreviewable. One way to discern whether a court made a wron g decision is to examine the process the judge used in making that decision. “A flaw in the process is easier to detect than a flaw in the result[.]” United States v. Beasley, 809 F2d 1273, 1279 (7thCir 1987). “The principled and just functioning of the judicial system depends on careful observation of the rules that focus attentio n on the proper grounds of decision.” Id

. [¶67.] Did the circuit court focus attention on the proper grounds for decision? Failing to do so, by definition , constitutes an abuse of discretion. Willoughby v. Grim, 1998 SD 68, ¶6, 581 NW2d 165, 167-68 (citations omitted). To answer this question, all we can appropri ately review are the stilted findings and conclusions entered here. Far from being balanced and methodical, these findings#25073

-28- offer little assurance that the court gave i mpartial consideration to all the relevant circumstances. [¶68.] We are all prone to error in making difficult decisions, and the press of heavy caseloads can be difficult, but for the sake of a process that aspires to truth and accuracy, decisions should be couched in the language of the decision makers, reflecting their own independent observatio ns and reasoning. Our judicial process is demeaned when a court adopts overreac hing and unwarranted findings prepared by counsel for the winning side.