Ducheneaux v. Ducheneaux

427 N.W.2d 122, 1988 S.D. LEXIS 114, 1988 WL 80844

• Court: South Dakota Supreme Court
• Decided: August 3, 1988
• Docket: 15825
• Status: Published

Opinions

MILLER, Justice.

ACTION

Kay Arlene Ducheneaux (mother) appeals the trial court’s order denying her application to remove her minor children from South Dakota to California. We affirm.

FACTS

Mother and Douglas Ducheneaux (father) were married in 1983 and divorced in February 1987. Two children were born during the couple’s marriage and at the time of the trial court proceedings on mother’s application, mother was expecting the couple’s third child. In its decree of divorce, the trial court awarded custody of the minor children to mother subject to father’s visitation rights. The divorce decree also ordered mother to apply to the circuit court for permission if she should desire to remove the children from South Dakota. On March 4, 1987, (14 days after filing of the divorce decree) mother filed an application with the trial court for permission to remove the children to California. The trial court denied mother’s application.

ISSUE

Whether the circuit court abused its discretion in refusing to permit mother to remove the parties’ children from South Dakota to California?

DECISION

It is generally against policy to permit the removal of a child from the jurisdiction unless its welfare would be better subserved thereby. Ordinarily custody should not be awarded to one contemplating immediate removal from the state. Lindley v. Lindley, 401 N.W.2d 732, 735 (S.D.1987); Bolenbaugh v. Bolenbaugh, 237 N.W.2d 12, 14, 89 S.D. 639 (1975). However, “[a] parent entitled to the custody of a child has the right to change his residence, subject to the power of the circuit court to restrain a removal which would prejudice the rights or welfare of the child.” SDCL 25-5-13.

The principles by which courts are guided in determining whether to allow a custodial parent to remove children from the state are set forth in Matter of Ehlen, 303 N.W.2d 808, 810 (S.D.1981). Under Ehlen, removal is permitted if the move is consistent with the best interests of the child. Id. This court reviews a trial court order permitting or denying removal to determine whether the trial court abused its discretion in making its determination. Id.

In this case, the trial court entered findings that mother is employed part time and takes home wages of approximately $300 per month, that she receives child support of $115 per month and also receives food stamps and fuel assistance. Further, the children are of Indian descent and are entitled to free medical, dental and optometric care through the Public Health Service (which would be lost by removal to California). The trial court found that father has maintained a regular schedule of visitations with the children and that the children are receiving parental influence and guidance from both parents on a near daily basis. Father and the children have formed an attachment for each other. The court also found that mother desired to move to California for better job opportunities but that she had no definite arrangements for employment in California. Mother planned that she and her children would live with her parents in California and would apply for ADC benefits on arrival in that state. Finally, the court found that removal of the children would lessen the frequency of visitation by father, also lessening his influence upon their rearing and upbringing and the paternal input to which the children are accustomed.

Based upon its findings, the trial court concluded that removal of the children to California would prejudice their rights and welfare by limiting and minimizing the paternal influence over the children that is exercised by father. We find ample support in the record for the trial court’s findings. No abuse of discretion occurred in its decision denying mother’s application.

Accordingly, the order of the trial court is affirmed.

WUEST, C.J., and MORGAN, J., concur. HENDERSON, J., concurs with writing. SABERS, J., dissents.