The South Dakota Supreme Court recently decided the child custody case of Brosnan v. Brosnan. The case focused on a custodial parent's attempt to relocate outside of South Dakota and the following three issues were raised on appeal:
- Whether the circuit court made the correct decisions in allowing and excluding evidence;
- Whether the circuit court abused its discretion in granting Mother’s motion to relocate with the children to California; and
- Whether the circuit court was correct in ordering Father to pay Mother’s attorney fees arising from Mother’s relocation motion.
The Supreme Court determined that the evidence was used appropriately by the circuit court because it was allowed to focus on the present and future best interests of the children.
The major focus of the case was on the second issue which focused on the Supreme Court's Fuerstenberg factors. The Court ruled that Father was still unfit as a parent due to his prior abusiveness. The Court also determined that the children's lives would be more stable if Mother and her new husband stayed in the same home with the children even though that would mean moving to California. The Court also found that the circuit court placed adequate emphasis on Mother's new husband's past involving one instance of domestic violence and termination of parental right of his other children. The Court also found that the 110 days of visitation set out in the new plan was sufficient.
Father claimed that attorney's fees cannot be awarded in relocation actions because they are not outlined in SDCL 15-17-38 which provides “The court, if appropriate, in the interests of justice, may award payment of attorneys’ fees in all cases of divorce, annulment of marriage, determination of paternity, custody, visitation, separate maintenance, support, or alimony.” The Supreme Court ruled that relocation actions are by their very nature custody and visitation matters and that attorney's fees can be awarded and were appropriate in this case.
Having affirmed the circuit court on all three issues, the Supreme Court ruled against Father and dismissed his appeal.
