# 2 6 1 95

- rev & rem

- SLZ
20 1 2 S
. D
. 86 IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA * * * * DOUG VELDHEER and KARI V E LDHEER , Plaintiff s and Appell ees ,

v. ANGELA PETERSON , Defendant and Appell ee , and JERED MANDEL , Defendan t and Appellant

. * * * * APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT DAVISON COUNTY, SOUTH DAKOTA * * * * THE HONORABLE SEAN M. O’BRIEN Judge * * * * TRESSA L. ZAHRBOCK KOOL Sioux Falls, South Dakota Attorney for plaintiffs and appellees , Veldheers

. DONNA L. BUCHER of Tinan, Smith & Bucher Mitchell , South Dakota Attorneys for defendant and appell ee , Peterson

. DAVA A. WERMERS Mitchell , South Dakota Attorney for defendant a nd appellant , Mandel

. * * * * ARGUED OCTOBER 1 , 201 2 OPINION FILED 

### 12/05/12- 1

- #26195 ZINTER, Justice [¶ 1. ] Maternal g randparents were permitted to join/ intervene in a custody dispute between the parents of t wo minor children. After a three

- day trial, the circuit court awarded custody to the grandparents and visitation to the father

. Father appeals the grandparent s ’ joinder/ intervention, the award of custody, and the denial of his request for attorney ’ s fees. We affirm the joinder/ intervention ; reverse the custody award ; and remand for findings of fact , conclusions of law , and reconsideration of the issue of attorney ’ s fees. Facts and Procedural History [¶ 2. ] Jered Mandel (Father) and Angela Peterson (Mother) had a four

- year relationship. They never married, but had two children: P.D.M., born December 29,
2005 , and P.J.M., born January 18, 2007. Mother, Father, and the children lived in Mitchell , in a house owned by Father. [¶ 3. ] Mother stayed at hom e and both parents cared for the children when Father was not working. The parents and children lived togeth er until January 2008 when the parents separated. Father continued to live in the home and Mother moved into an apartment. After the separation, Mother an d Father share d custody of the children . However, due to a deterioration of the parents ’ rel ationship, difficulties with communication, conflicting work schedules, and financial strugg les, the parents began to increasingly rely on the Veldheers, the children ’ s maternal#26195

- 2

- grandparents (Grandp arents) , 1 to care for the children

. Following an October 2007 incident between Mother and Father in which Mother was charged with domestic violence

- simple assault, the parents asked Grandparents to watch the children for a period of two to three weeks so th at the parents could work on their relationship. I n 200 8, the parents began to rely on Grandparents to serve as the children ’ s primary caretakers

. [¶ 4. ] In July 2008, Mother obtained sole legal and physical custody of the ch ildren as a part of a child support proceeding

. The children, however, conti nued to reside with G randparents

. Grandparents and the children spent the summer of
2008 in Piedmont. 2 Parents took the children back into their care for a brief period in the fall of 2008. However, f or the remainder of 2008, for 2009 , 3 and until Septem ber 2010, G randparents served as the children ’ s primary caretakers

. Father maintained that he wanted to see the children more often, but claimed that he was prohibited from doing so by Grandparents. Father testified: “ I wanted the kids, and
it was out of my control. I was told I didn ’ t have any custody. ” 4

1

. Keri Veldheer is Angela Peterson’s mother. Doug Veldheer is Angela’s stepfather. For eas e of reference, we refer to Doug and Kari Veldheer as the maternal grandparents. 2

. Grandparents owned businesses in both the Black Hills and Mitchell.
3

. In 2009, Mother and Father gave Grandparents a power of attorney to make medical decisions regard ing the children. Father testified that the power of attorney was given because Grandparents took the children on a trip outside the country.
4

. Although Mother and Grandparents dispute Father’s assertion, Father had no visitation rights under the July 2008 order. Father’s first court ordered custody/visitation rights were awarded under the September 2010 order.#26195

- 3

- [¶ 5. ] In January 2009, Grandparents began keeping track of the time Mother and Father spen t with the c hildren. In 2009, Father had the children in his

care on an average of two days every month. In addition, the children spent what equated to almost a full month of 2009 with their paternal grandparents. In 2010,
up until the month of September , Father spent an averag e of three days a month with the children. Father testified that when h e did not see the children he tried to contact the m by phone at least once a week. [¶ 6. ] On at least one occasion , the parties discussed Grandparents becoming the children ’ s guardians

. Grandparents testified that they initially discussed a guard ianship because the children ’ s Medicaid coverage lapsed. Father testified that he was pressured to agree to a gu ardians hip but he declined

. When Father declined , Grandparents said they dropped the subject. Yet later, Grandparents claim that Fath er appro ached them about a guardia nship . Grandparen ts had guardianship documents prepared , and although Mother signed them , Father would
not. In July 2010, G randparents, through their attorney, requested Father to
consent to a guardianship or take the children b ack into his care. Father then filed a motion in circuit court to obtain custody of the children. [¶ 7. ] In September 2010, the circuit court considered Father ’ s motion and awarded Mother and Father temporary joint ph ysical custody on a n altern ating weekly basis. During Father ’ s weeks, the children stayed with Father in his home. Typically, Father did not work during those weeks. During Mother ’ s weeks , the children stayed with Grandparents. Mother lived in Sioux Falls a nd saw the children wh en she traveled to Mitchell

. Father had custody of the children under#26195

- 4

- this order for ten months

— the time between the temporary custody award in September 2010 and the permanent custody trial in August 2011

. [¶ 8. ] Prior to the permanent custody t rial , Grandparents filed a separate custody action and moved to join the parents ’ custody action . The circuit court granted the motion to join , effectively allowing Grandparents to interven e in the parents’ custody dispute

. 5 Prior to trial, the parents a nd G randparents participated in home

- study evaluation s . P arents and G randparents also underwent individual psychological evaluation s . [¶ 9. ] A three

- day custody t rial was held in August 2011. Grandparent s and Father te stified. Mother did not testify or call witnesses . The home

- study evaluator, Ms. Zi m belman, i ndicated that at the time of trial, Mother wished to have the children be raised by Grandparents. Mother , however, also informed Ms. Zimbelman that Mother ’ s ultimate goal was to have th e children live with her. [¶ 10. ] Father actively sought full custody. Some concerns were expressed regarding Father ’ s ability to parent the children. The concerns involved Father ’ s history of alcohol

- related offenses , employment at a bar where he often worked

5

. Procedurally, Grandparents filed a separate summons and complaint starting a new action to obtain custody of the children. Prior to trial in the parents’ custody action, Grandparents moved to “join” the two actions. The parties and the court treated Grandparents’ pleadings as a motion to intervene in the parents’ custody dispute. The circuit court granted “joinder,” consolidating the two a ctions and allowing Grandparents to intervene in Mother and Father’s custody proceeding. However, all further pleadings

— including the notice of appeal

— were filed in Grandparents’ action seeking custody. Therefore, the parties in this appeal are aligned a s set forth in the caption of this opinion: Grandparents are the plaintiffs, and Mother and Father are the defendants.#26195

- 5

- nights, lack of a driver ’ s license, 6 and obsessive compulsive personality characteristics

. There was , however, no contention that father was unfit. [¶ 11. ] Ms. Zimbelman reported that between Mother and Father, “ [Father ’ s]

care w ould allow the children to remain in the same community and spend time with both their maternal and paternal grandparents on a regular basis. ” On the other hand , Ms. Zimbelman indicated that “ [p]lacing the children with [Mother] would lessen the support s ystem for the children because of [the lack of] family availability. ” As between Mother, Father, and Grandparents , Ms. Zimbelman opined that it would be in the “ best interests ” of the children for Grandparents to be awarded physical custody of the childre n . Ms. Zimbelman indicated that the children were “ more closely attached to their grandparents. ” [¶ 12. ] T he circuit court awarded leg al and physical custody to G randparents. Father was awarded visitation in accordance with the South Dakota Vis itation Guidelines. Additionally, Father ’ s motion for attorney ’ s fees was denied. [¶ 13. ] We address the following issues on appeal : 1. Whether the circuit court erred in allowing G randparents to join/ intervene in the parents ’ custody dispute

. 2. Wheth er the circuit court erred in determining that Father ’ s presumptive right to custody was rebutted under SDCL 25

- 5

- 29 and SDCL 25

- 5

- 30.
3. Whether the circuit court erred in determining that each party was responsible for their own attorney ’ s fees.

6

. Ms. Zimbelman testified that Father lost his driver’s license because he failed to pay child support and because he had received a sp eeding ticket. She testified that Father would have to pay Mother $2,000 in child support to reacquire his driver’s license.#26195

- 6

- 4. Whether either party is entitled to appellate attorney ’ s fees. Decision [¶ 14. ] This case involves the interpretation of statutes overriding a parent ’ s presumptive right to custody of h is children

. See SDCL 25

- 5

- 29 to

- 30

. “ Statutory interpretation is a question of law, reviewed de novo. ” In re Guardianship of S.M.N. , T.D.N., and T.L.N. , 2010 S.D. 31, ¶ 9, 781 N.W.2d 213, 217. The specific statutory language at issue involves extraordinary circumstances and serious detriment to the welfare of children. “ W hether the facts of [ a ] case constitute extraordinary circumstances of serious detriment to the welfare of

. . . children . . . is a conclusion of law that we review de novo. ” Id. ¶ 11 (citing Meldrum v. Novotny , 2002 S.D. 15, ¶ 49, 640 N.W.2d 460, 46 9). This case finally involves a parent ’ s claim that an award of custody to nonparent s violates the parent ’ s constitutional rights.

“ An appeal asserting an infringement of a constitutional right is . . . reviewed under the de novo standard of review [

. ] ” Id. ¶ 10. Joinder/ Intervention by G randparents [¶ 15. ] The parties disagree whether Grandparents were entitled to join/ intervene in the parents ’ custody dispute

. “ SDCL 25

- 5

- 29 expressly authorizes nonparents to petition for custody or visitation if they have served as the child [ren] ’ s primary caretaker, are closely bonded as a parental figure, or have otherwise formed a significant and substantial relationship. ” Clough v. Nez , 2008#26195

- 7

- S.D. 125, ¶ 11 , 759 N.W.2d 297, 302. The statute permits interv ention on the same showing. SDCL 25

- 5

- 29. 7 [¶ 16. ] Father concede s “ that [Grandparents] were the primary caregivers for [two] years. ” 8 But , Father argues that intervention was improper because “ the constitutional presumption [to the care, custo dy and control of children] due parents [ was not] rebutted ” at the time the motion for joinder/ intervention was granted

. [¶ 17. ] We first observe that a nonparent ’ s service as a child ’ s primary caretaker may be sufficient to rebut a parent ’ s cons titutional presumptive rights to the care and custody of his children

. Clough , 2008 S

. D . 125, ¶ 16, 759 N.W.2d at 304 ( citing SDCL 25

- 5

- 29(4) and SDCL 25

- 5

- 30(3) )

. We also observe that parties need not prove their ultimate case in order to intervene

. A pleading for intervention

“ is construed liberally in favor of the pleader

- intervenor and the court will accept as true the well

- pleaded allegations in the pleading. ” 7C Charles Alan Wright, Arthur R. Miller, Mary Kay Kane & Richard L. Marcus, Fed eral Prac tice and Proc edure §

7

. SDCL 25

- 5

- 29 provides in pertinent part: [T] he court may allow any person other than the parent of a child to i ntervene or pet ition a court of competent jurisdiction for custody or visitation of any child with whom he or she has served as a primary caretaker, has closely bonded as a parental figure, or has otherwise formed a significant and substantial relationship.

. . . 8

. A h earing on Father’s motion to reconsider the issue of joinder/intervention was held on March 16, 2011. Father’s attorney conceded that Grandparents had been the children’s primary caretakers.#26195

- 8

- 1914 (3d ed. 2012 ). 9 Therefore, at the time Grandparents moved to join/ intervene, they were not required to meet their trial burden of rebutting the constitutional presumptions due a parent

. Grandparents were only required to assert well

pleaded facts supporting their claim. After all, without appearing as parties, Grandparents w ould not have had standing to call witnesses and introduce evidence in an attempt to rebut Father ’ s presumptive right to the care, custody , and control of hi s children. [¶ 18. ] In this case, at the time of joinder/ intervention, there was no dispute that Grandparents had served as the children ’ s pri mary caretakers for approximately two years

. Therefore, Grandparents made a sufficient showing for join der/ intervention under SDCL 25

- 5

- 29 and Clough , 2008 S.D. 125, ¶ 16, 759 N.W.2d at 304. The circuit court did not err in allowing Grandparents to join/ intervene. Father ’ s Presumptive Right to Custody [¶ 19. ] “ Natural parents have a fundamental right to the care, custody, and control of their children. ” S.M.N. , 2010 S.D. 31, ¶ 17, 781 N.W.2d at 221 (citing Troxel v. Granville , 530 U.S. 57, 66, 120 S. Ct. 2054, 2060, 147 L. Ed

. 2d 49 (2000); Santosky v. Kramer , 455 U.S. 745, 758

- 59, 102 S. Ct. 13 88, 1397, 71 L. Ed. 2d 599

9

. South Dakota’s intervention rules are similar to Federal Rul e of Civil Procedure 24. S ee In re Adoption of D.M. , 2006 S.D. 15, ¶ 5, 710 N.W.2d 441, 443

- 44; SDCL 15

- 6

- 24. In analyzing FRCP 24, federal courts have noted that “a district court is required to accept as true the non

- conclusory allegations made in supp ort of an intervention motion.” Sw. Ctr. for Biological Diversity v. Berg , 268 F.3d 810, 819 (9 th Cir. 2001) ( citing cases from the Fourth, Fifth, Seventh, and Eight Circuits ).#26195

- 9

- (1982) ). “ The fundamental liberty interest of natural parents

. . . does not evaporate simply because they have not been model parents[.] ” Id. ( quoting Santosky , 455 U.S. at 753, 102 S. Ct. at 1394

- 95). The state has no reason to interject itself into the child

- rearing decisions of a fit parent “ s o long as a parent adequately cares for his or her children ( i.e. , is fit )[.] ” Id

. ( quoting Troxel , 5 30 U.S. at 68

- 69, 120 S. Ct. at
2 061 )

. Troxel does not , however, require “ a findi ng of parental unfitness in third party visitation or custody cases ” if other extraordinary circumstances exist. Feist v. Lemieux

- Feist , 2010 S.D. 104, ¶ 7, 793 N.W.2d 57, 61. [¶ 20. ] Under South Dakota law, “ [ a ] parent ’ s presumptive right to cust ody of his or her child may be rebutted by proof ” of one or more of the following extraordinary circumstances: (1) That the parent has abandoned or persistently neglected the child; (2) That the parent has forfeited or surrendered his or her parental rights over t he child to any person other than the parent; (3) That the parent had abdicated his or her parental rights and responsibilities; or (4) That other extraordinary circumstances exist which, if custody is awarded to the parent, would result in serious detriment to the child. SDCL 25

- 5

- 29. A parent ’ s presumptive right to custody must be rebutted by clear and convincing evidence

. See S.M.N. , 2010 S.D. 31, ¶¶ 21

- 2 2 , ¶ 25 , 781 N.W.2d at
22 2

- 24 (stating that extraordinary circumstances, a bandonment, and abdication of
pare nt rights and responsibilities must be proven by clear and convincing evidence)

. [¶ 21. ] The circuit court first found that Grandparents had rebutted Father ’ s presumptive right to custody under SDCL 25

- 5

- 29(2) and (3). Those subsections

r equire the forfeiture , surrender, or abdication of parental rights or responsibilities#26195

- 10

- to an individual other than a p arent

. “ Abdication of pa r en t al rights and responsibilities is akin to abandonment[.] ” Id. ¶ 25. To const itute abandonment in

a terminat ion of parental rights case: [I] t must appear by clear and convincing evidence that there has been by the parent [ ] a giving

- up or total desertion of the minor child[ren]. In addition , there must be a showing of an intent on the part of the parent to aban don and to relinquish parental obligations; this intent may be in f erred from conduct. When examining intent, the court should consider a parent ’ s presence, love, care, affection, and monetary support. Id. ( quoting In re Adoption of C.D.B. , 2005 S.D. 115, ¶ 12, 706 N.W.2d 809, 814). We believe the same showing should be required when a nonparent seeks custody and control of a parent ’ s child under SDCL 25

- 5

- 29(2) and (3)

. [¶ 22. ] In this case, Grandparents point out that Father did not provide
cust odial care for his children during a portion of 2008, all of 2009, and a majority of 2010. Instead, Father relied on Grandparents to provide that care. 10 Yet , Father did not totally desert or abandon the children or relinquish all parental obligations. F ather paid child support until the middle of 2010

. He testified that he stopped paying support because the payments w ere going to Mother , who was no longer caring for the children. Father also maintained visitation and contact with his children , and he r efused to allow a guardianship, demonstrating his intent not to abdicate his parental rights and responsibilities

.

10

. There is evidence in the record that Mother was not capable of caring for the children. We do not discuss Mother’s faults and omissions because she did not seek custody and has not appealed the award of custody to Grandparents.#26195

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- [¶ 23. ] Moreover , when Father obtained temporary custody on an alternating weekly basis in September 2010, he became meaningfully i nvolved in the care of the children

. Ten months later, at the time of trial, the home

- study evaluator acknowledged that Father had been adequately caring for the children. Considering the totality of the circumstances, there was no showing of a total des ertion of the children or “ an intent on the part of

. . . [Father] to abandon and to relinquish parental obligations[.] ” See id. Because Grandparents failed to provide clear and convincing evidence that Father forfeited, surrendered, or abdicated his
par ental rights and responsibilities, the court erred in determining that Father ’ s presumptive right to custody was rebutted under SDCL 25

- 5

- 29(2) and (3). [¶ 24. ] The circuit court also found that Father ’ s presumptive right to custody

was rebutted under SDCL 25

- 5

- 29(4) , and SDCL 25

- 5

- 30(2) and (3)

. By the enactment of SDCL 25

- 5

- 29 and 30 , “ the Legislature

. . . provided a mechanism for extraordinary circumstances to justify awarding custody or visitation to a third party over a fit parent ’ s objecti ons. ” Feist , 2010 S.D. 104, ¶ 12, 793 N.W.2d at 62. To rebut the parental presumption under SDCL 25

- 5

- 29(4) , a nonparent must present “ evidence of extraordinary circumstances that would result in serious detriment to the children. ” Beach v. Coisman , 201 2 S.D. 31, ¶ 9, 814 N.W.2d 135,
139. SDCL 25

- 5

- 30 delineates some of the circumstances that may result in serious detriment to children . SDCL 25

- 5

- 30 provides: Serious detriment to a child may exist whenever there is proof of one or more of the following extraordinary circumstances: (1) The likelihood of serious physical or emotional harm to the child if placed in the parent ’ s custody; (2) The extended, unjustifiable absence of parental custody;#26195

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- (3) The provision of the child ’ s physical, emotional, and other needs by persons other than the parent over a significant period of time; (4) The existence of a bonded relationship between the child and the person other than the parent sufficient to cause significant emotional harm to the child in the event of a change in custody; (5) The substantial enhancement of the child ’ s well

- being while under the care of a person other than the parent; (6) The extent of the parent ’ s delay in seeking to reacquire custody of the child; (7) The demonstrated quality of the parent ’ s c ommitment to raising the child; (8) The likely degree of stability and security in the child ’ s future with the parent; (9) The extent to which the child ’ s right to an education would be impaired while in the custody of the parent; or (10) Any other extraor dinary circumstance that would substantially and adversely impact the welfare of the child. Extraordinary circumstances causing serious detriment must be established by clear and convincing evidence

. See S.M.N. , 2010 S.D. 31, ¶ 26, 781 N.W.2d at 224

. [¶ 25. ] In support of its finding of serious detriment, t he circuit court relied on SDCL 25

- 5

- 30(2), which requires “ [t]he extended, unjustifiable absence of parental custody [

. ] ” The circuit court also relied on SDCL 25

- 5

- 30 (3), which examines “ [t]h e provision of the child ’ s physical, emotional, and other needs by persons other than the parent over a significant period of time [

. ] ” We recognize that Grandparents served as the children ’ s primary caretakers for approximately two years

. We also acknowl edge “ that parental unfitness is [often] implicit in many of the circumstances . . . identified in SDCL 25

- 5

- 29 and 25

- 5

- 30. ” Feist , 2010 S.D

. 104, ¶ 12, 793 N.W.2d at 62

. Grandparents have not , however, alleged, and the circuit court did not find, that Father was unfit. Further, “to adequately protect the natural parent ’ s fundamental liberty interest in the custody of h [is] children, extraordinary circumstances must denote more than a simple showing of the#26195

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- children ’ s best interests.” Id. ¶ 10

. Therefo re , we must consider whether in addition to Grandparents ’ provision of custodial care, they proved by clear and convincing evidence that an award of custody to Father would cause serious detriment to the children. [¶ 26. ] At trial, Ms. Zimbelman elaborated on her report recommending Grandparent custody

. Ms. Zimbelman express ed some concern about Father ’ s ability to parent the children because he had never been a single, full

- time parent. But , at that point, Father had custody of the children on an alternating weekly basis for almost a year. And , Ms. Zimbelman acknowledged that “ [Father] hasn ’ t done a poor job [parenting]. I just don ’ t see where it ’ s been easy for him. Doesn ’ t mean he can ’ t do it. I think he needs more help, and he needs someb ody to help him with organization. ” Ms. Zimbelman also acknowledged that during the ten months prior to trial , Father had renewed his commitment to his children. Ms. Zimbelman was asked: “ And he ’ s actually stepping up to care for these children, isn ’ t he ? ” She replied: “ He is now, yes. ” She further acknowledged that when Father “has [the children] in his care, he’s able to care for them.” When asked if Father was a good parent, Ms. Zimbelman testified: “ To this point when the children are with him, and what I ’ ve seen when they are with him, he responds to their needs. He can deal with the problems they have. He provides for them when they are in his care. ” Ms. Zimbelman finally agreed that Father was involved in the children’s activities. [¶ 27. ] Similarly, Father ’ s mother testified: “ I have seen a tremendous change in the past year. I see him much more comfortable in his own skin with the [children] . I see him more and more as the father figure that he needs to be. ” When#26195

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- P.D.M

. ’ s teacher was asked to describe the relationship between Father and son, she described the relationship as “ loving ” and “ gentle. ” She also indicated that Father had participated in several of P.D.M.’s preschool field trips

. [¶ 28. ] Nevertheless, Grandparen ts rely on Ms. Zimbelman ’ s report indicating that “ [t] o take [the children] from [Grandparents] on a permanent basis would cause the children emotional distress. ” Yet, when the court asked Ms. Zimbelman to elaborate at trial , she explained that a change o f custody would be “ a change of living environment ” and “ a change of experience

. . . that would be

. . . different to [ the children ][ , ]” but it can and could be done

. 11 She also testified that the children had been in Father ’ s home for ten months “ so [ the y are ] adjusted to [Father ’ s]

11

. The court: [Y]ou feel that extraordinary circumstances exist in this case, that if custody is awarded to a parent, it would result in serious detriment to the children?

. . . I’m

— just assuming that the kids would be with the

— in the custody of their father and the grandparents would be entitled to visitation, . . . [d]o you still have that concern t hat that would cause the children emotional distress . . . ? Zimbelman: Because of their history, the

— the history that they’ve had living with and spending so much time with their grandparents, to make that change now would be basically changing physical custody is

— how it would

— how it makes sense in my mind when I’m looking at how the children would view that.

. . . And then your question is: would that cause them emotional distress? It’s a

— it’s a change of custody, a change of living environment, a chan ge of experience there that would be so different to them. It can be done , but I would say they

— if that does happen, they should have opportunity to have some counseling and they need to see their grandparents on a regular basis a couple times a week. (E mphasis added.)#26195

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- home ” as well as Grandparents ’ home. In discussing continuity, she indicated that the children could remain in either home. In her opinion, there was no need to remove the children from Father ’ s or Grandparents ’ home. There fore , this is a case in which the evidence indicates that the distress of spending less time with Grandparents would understandably impact the children. But , changes merely

“ impact [ing] ” children are insufficient to constitute extraordinary circumstances resulting in serious detriment. Beach , 201 2 S.D. 31, ¶ 9, 814 N.W.2d at 139. The distress children normally endure in changing custody is not in and of itself an extraordinary circumstance causing serious detriment within the meaning of SDCL
25

- 5

- 29(4) a nd SDCL 25

- 5

- 30

. See SDCL 25

- 5

- 29 (4) ( requiring that “ serious detriment to the child ” must occur if custody is awarded to the parent ). Here , Ms. Zimbelman did not indicate that Father ’ s resumption of full physical custody would

cause serious detriment

. Ms. Zimbelman stated that a change “ c[ould] be done ” so long as the children had continued contact with Grandparents and possible counseling. 12 [¶ 29. ] The court also overlooked the basis for Ms. Zimbelman ’ s recommendation that favored Grandparent c ustody

. Ms. Zimbelman ’ s recommendation was explicitly made without consideration of the presumptions due a parent. She testified that her recommendation was based solely on the best

12

. The court apparently assumed that granting custody to Father meant that the children would no longer have contact with their Grandparents. But Father testified : “I will never stop [the children] from seeing [their Grandparents].”#26195

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- interest s standard used in parental custody disputes. 13 Thus, Ms. Zimbel man indicated her opinion was based on an “ equal assessment and comparison of [the] three parties. ” She indicated that she focused only on “ what ’ s going to be best for these children. ” Although that focus is appropriate in child custody disputes between parents, it falls short of the extraordinary circumstances and serious detriment necessary to award custody to a nonparent over a parent ’ s objection. [¶ 30. ] W e find it instructive to contrast this case with the nonparent custody awarded in Meldr um v. Novotny

. 2002 S.D. 15, 640 N.W.2d 460. Both cases involve d custody dispute s between nonparent s and a biological parent. I n Meldrum , however, “ [t]here were many years where there was no contact between father and son. ” Id. ¶ 59 (Konenkamp, J., con curring in part). Here, a lthough Grandparents provided the children ’s custodial care for a lengthy period of time , Father remained in contact with his children. Additionally, the record in Meldrum

“ contain[ed] uncontradicted expert testimony that a perma nent return of custody to the father woul d ca u se serious emotional detriment [to the child]. ” Id. In this case , although the expe rt ’s report indicated that the children would suffer distress in changing custody , the expert ’s report and accompanying testi mony did not indicate that the distress would result in serious emotional detriment to the children

. [¶ 31. ] In summary , the law does not permit an award of custody to

“ nonparents simply because they may be better custodians. ” Id. ¶ 57 (Konenkam p, J., concurring in part)

. The question is whether Father ’ s presumptive right to

13

. Ms. Zimbelman ’ s report and testimony reflect ed that she based her opinion solely on the Fuerstenberg factors. See Fuerstenberg v. Fuerstenberg , 1999 S.D. 35, 591 N.W.2d 798

.#26195

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- custody was rebutted by clear and convincing evidence of extraordinary circumstances that would result in serious detriment to the children

. Here , F ather had been caring fo r his children for almost a year on an alternating weekly basis under the temporary order, and there was no clear and convincing evidence that awarding full custody to Father would cause the children serious detriment

. Accordingly, the circuit court erred in awarding Grandparents legal and physical custody under SDCL 25

- 5

- 29 and SDCL 25

- 5

- 30. Because Grandparents did not
meet their high evidentiary burden in this kind of case , we may not consider the
court ’ s findings regarding the best interests of the ch ildren. It is o nly when a “ non parent prevails, either on the claim of parental unfitness or extraordinary circumstances ” that the best interests of th e child test become applicable

. Id. ¶ 50 (Gilbertson, C

. J

. , writing on issue three)

. Attorney ’ s Fees at Trial [¶ 32. ] The circuit court ordered that each party was responsible for their own attorney ’ s fees. “ The court, if appropriate, in the interests of justice, may award payment of attorneys ’ fees in all cases of . . . custody[.] ” SDCL 15

- 17

- 38. “ The circuit court must ‘ enter findings of fact and conclusions of law when ruling on a request for attorney ’ s fees. ’” Beach , 2012 S.D. 31, ¶ 13 , 814 N.W.2d at 140

. [¶ 33. ] Here, the circuit court did not enter findings of fact and conclus ions of law on this issue

. “ Without findings of fact and conclusions of law, this Court cannot conduct an adequate review of the circuit court ’ s decision. ” Id. Additionally, Father has now become the prevailing party. Therefore, we remand the issue of attorney’s fees for findings of fact, conclusions of law, and reconsideration

.#26195

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- Appellate Attorney ’ s Fees [¶ 34. ] Both Father and Grandparents moved for appellate attorney ’ s fees.

“ SDCL 15

- 26A

- 87.3 permits an award of appellate attorney ’s fees if t hey are otherwise allowable and if they are accompanie d by a verified, itemized statement of the legal services rendered. ” Toft v. Toft , 2006 S.D. 91, ¶ 26, 723 N.W.2d 546,
554. A s mentioned above, SDCL 15

- 17

- 38 author izes attorney ’ s fees in custody

case s. Considering the relative financial condition of the parties, the genesis for this litigation, the good faith arguments presented by all parties, and the closeness of the case, we decline to award appellate attorney ’ s fees. [¶ 35. ] Reversed and remanded for further proceedings consistent with this opinion

. [¶ 36. ] GILBERTSON, Chief Justice, and KONENKAMP, SEVERSON, and WILBUR, Justices, concur.