SABERS, Justice.
Stephanie L. Fortin (Stephanie) appeals from an order granting Lee E. Fortin’s (Lee) motion requesting an order restraining Stephanie from removing Trevor Lee Fortin (Trevor) from the State of South Dakota. We reverse.
FACTS1
Stephanie and Lee married on July 30, 1982. Their son, Trevor, was born in 1986. The parties lived in Watertown, where Stephanie, age 34, managed Maurice’s, a clothing store, and earned $1075 net per month. On occasion, after working during the evening, Stephanie would go to a bar prior to going home while Lee baby-sat Trevor. Lee, age 37, worked as an assembler for Telelect, Inc., earning $1505 per month. He is a Watertown native whose family lives in the area.
During the summer of 1990 the parties were having marital difficulties. Stephanie was facing the prospect of a new Maurice’s building being constructed that fall. Because she found the situation depressing, she consulted her physician who prescribed the lowest dosage of Prozac. She took it for six weeks and then quit taking it. She has not used it since that time.
In February 1991, the parties separated. They agreed that Stephanie would have custody of five year old Trevor. She and Trevor moved out of the marital home. Lee exercised visitation rights with Trevor every other weekend and at other times during the week when Stephanie worked evenings.
Lee and Stephanie were divorced on May 9, 1991. The judgment and decree of divorce incorporated Lee and Stephanie’s property and marital settlement agreement. The parties agreed that Stephanie would have custody of Trevor subject to Lee’s rights of unspecified reasonable visitation. Lee agreed to pay $261.90 per month as child support. Following the divorce, Lee’s visitation with Trevor followed the schedule developed during the separation period.
During Labor Day weekend, 1991, Stephanie told Lee that she was engaged to Robert Mack (Robert). She had met Robert during mall remodeling and had known him for a year. Robert is a 1974 graduate of the University of Southwestern Louisiana with a bachelor of architecture degree. Since 1974, he worked for three engineering/architectural firms and owned his own business for three years. He now is a superintendent for Total Tenant Construction in the Cleveland suburb of Mentor. He has been married twice before and has three children ages 9, 17, and 20.
Stephanie voluntarily resigned her job at Maurice’s effective October 4, 1991. She planned to move to Mayfield Heights, Ohio on October 15 and marry Robert. She and Trevor would live in a three bedroom home that Robert had rented; Robert would join them in the home following the marriage. To help Trevor adjust, Stephanie did not plan to work until after Trevor was settled in the first grade in the fall of 1992. Robert supported this decision and had sufficient income to support the family.
At the time of the divorce, Lee was ' aware that Stephanie, for career advancement purposes, might have to move to a larger volume store within the Maurice’s chain, probably in Sioux Falls or Rapid City. At the time of the divorce he and Stephanie had not contemplated the possibility of a more distant move. Therefore, he sought a restraining order pursuant to SDCL 25-5-13. He did not seek custody of Trevor.
Lee expressed several concerns over Stephanie moving Trevor to Ohio with her. [231]*231He felt that the move would be traumatic for Trevor because he was born and raised in Watertown and had family there. During the marriage little time was spent with Lee’s family. Since the divorce, however, Lee and Trevor had more contact with them. He was concerned that Mayfield Heights, a Cleveland, Ohio, suburb was in a large metropolitan area with racial, ethnic, traffic, school and criminal problems. He gave no examples of any problem, however. Lee also was concerned about the distance between Watertown and Mayfield Heights and its effect on his visitation with Trevor and his ability to have immediate involvement with Trevor’s emotional, disciplinary, school, and medical needs. He did not, however, believe that Stephanie was anything other than a good mother who always allowed visitation and he did not question Robert’s ability to parent or appropriately discipline.
Stephanie testified that Mayfield Heights is a suburb sixteen miles from Cleveland with a population of 19,000. It had been recommended to Robert by friends with children who live there. Trevor would be enrolled in a public school three-quarters of a mile from their home. She offered to provide Lee with liberal visitation during summers (eight weeks) together with two weeks during Christmas so that visitation with Lee and his relatives could be meaningful. She also offered to share the expense of sending Trevor to see his father. She felt that Robert and Trevor had developed a good, loving relationship.
The trial court found that while Stephanie may have had compelling reasons to move from South Dakota, there was “absolutely no evidence” that such a move was consistent with Trevor’s best interests. In fact, such a move would disrupt continuity and stability, lessen the frequency of Lee’s visitation, and lessen Lee’s substantial influence and parental input on Trevor’s rearing and upbringing. The court’s conclusions of law were consistent with these findings. The court filed its order restraining Stephanie from removing Trevor from the State of South Dakota on November 4, 1991.
On December 13, 1991, Stephanie filed a motion for clarification of this order. Lee had taken the position that Stephanie was restricted from taking Trevor out of South Dakota for any purpose and any duration of time. By this time Stephanie had married Robert. She remained in Watertown with Trevor; Robert lived in Ohio. Stephanie was managing a retail floor for Cook’s, Inc. in Watertown, and wanted to take Trevor with her to spend the holidays in Ohio with Robert, in Louisiana with Robert’s relatives, or in Iowa with her parents.
On January 8, 1992 the trial court filed an order which said that its November 1991 order applied only to the removal of Trevor’s residence from South Dakota. Lee and Stephanie only had to give each other reasonable notice of their intent to take Trevor out-of-state, their intended destinations and the duration of the visits.
Stephanie appealed from the November 1991 order as clarified by the January 8, 1992 order.
ISSUE
WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN REFUSING TO PERMIT THE CUSTODIAL PARENT TO CHANGE THE MINOR CHILD’S RESIDENCE FROM SOUTH DAKOTA TO OHIO?
“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. (emphasis supplied). This statute mandates that the trial court consider the best interests of the child prior to permitting the move. Matter of Ehlen, 303 N.W.2d 808 (S.D.1981). “The majority of cases dealing with removal of a child from the jurisdiction support the rule that if a parent who has custody of a child has good reason for living in another state, removal will be permitted, providing such a move is consistent with the best interests of the child.” Id.
Free access — add to your briefcase to read the full text and ask questions with AI
SABERS, Justice.
Stephanie L. Fortin (Stephanie) appeals from an order granting Lee E. Fortin’s (Lee) motion requesting an order restraining Stephanie from removing Trevor Lee Fortin (Trevor) from the State of South Dakota. We reverse.
FACTS1
Stephanie and Lee married on July 30, 1982. Their son, Trevor, was born in 1986. The parties lived in Watertown, where Stephanie, age 34, managed Maurice’s, a clothing store, and earned $1075 net per month. On occasion, after working during the evening, Stephanie would go to a bar prior to going home while Lee baby-sat Trevor. Lee, age 37, worked as an assembler for Telelect, Inc., earning $1505 per month. He is a Watertown native whose family lives in the area.
During the summer of 1990 the parties were having marital difficulties. Stephanie was facing the prospect of a new Maurice’s building being constructed that fall. Because she found the situation depressing, she consulted her physician who prescribed the lowest dosage of Prozac. She took it for six weeks and then quit taking it. She has not used it since that time.
In February 1991, the parties separated. They agreed that Stephanie would have custody of five year old Trevor. She and Trevor moved out of the marital home. Lee exercised visitation rights with Trevor every other weekend and at other times during the week when Stephanie worked evenings.
Lee and Stephanie were divorced on May 9, 1991. The judgment and decree of divorce incorporated Lee and Stephanie’s property and marital settlement agreement. The parties agreed that Stephanie would have custody of Trevor subject to Lee’s rights of unspecified reasonable visitation. Lee agreed to pay $261.90 per month as child support. Following the divorce, Lee’s visitation with Trevor followed the schedule developed during the separation period.
During Labor Day weekend, 1991, Stephanie told Lee that she was engaged to Robert Mack (Robert). She had met Robert during mall remodeling and had known him for a year. Robert is a 1974 graduate of the University of Southwestern Louisiana with a bachelor of architecture degree. Since 1974, he worked for three engineering/architectural firms and owned his own business for three years. He now is a superintendent for Total Tenant Construction in the Cleveland suburb of Mentor. He has been married twice before and has three children ages 9, 17, and 20.
Stephanie voluntarily resigned her job at Maurice’s effective October 4, 1991. She planned to move to Mayfield Heights, Ohio on October 15 and marry Robert. She and Trevor would live in a three bedroom home that Robert had rented; Robert would join them in the home following the marriage. To help Trevor adjust, Stephanie did not plan to work until after Trevor was settled in the first grade in the fall of 1992. Robert supported this decision and had sufficient income to support the family.
At the time of the divorce, Lee was ' aware that Stephanie, for career advancement purposes, might have to move to a larger volume store within the Maurice’s chain, probably in Sioux Falls or Rapid City. At the time of the divorce he and Stephanie had not contemplated the possibility of a more distant move. Therefore, he sought a restraining order pursuant to SDCL 25-5-13. He did not seek custody of Trevor.
Lee expressed several concerns over Stephanie moving Trevor to Ohio with her. [231]*231He felt that the move would be traumatic for Trevor because he was born and raised in Watertown and had family there. During the marriage little time was spent with Lee’s family. Since the divorce, however, Lee and Trevor had more contact with them. He was concerned that Mayfield Heights, a Cleveland, Ohio, suburb was in a large metropolitan area with racial, ethnic, traffic, school and criminal problems. He gave no examples of any problem, however. Lee also was concerned about the distance between Watertown and Mayfield Heights and its effect on his visitation with Trevor and his ability to have immediate involvement with Trevor’s emotional, disciplinary, school, and medical needs. He did not, however, believe that Stephanie was anything other than a good mother who always allowed visitation and he did not question Robert’s ability to parent or appropriately discipline.
Stephanie testified that Mayfield Heights is a suburb sixteen miles from Cleveland with a population of 19,000. It had been recommended to Robert by friends with children who live there. Trevor would be enrolled in a public school three-quarters of a mile from their home. She offered to provide Lee with liberal visitation during summers (eight weeks) together with two weeks during Christmas so that visitation with Lee and his relatives could be meaningful. She also offered to share the expense of sending Trevor to see his father. She felt that Robert and Trevor had developed a good, loving relationship.
The trial court found that while Stephanie may have had compelling reasons to move from South Dakota, there was “absolutely no evidence” that such a move was consistent with Trevor’s best interests. In fact, such a move would disrupt continuity and stability, lessen the frequency of Lee’s visitation, and lessen Lee’s substantial influence and parental input on Trevor’s rearing and upbringing. The court’s conclusions of law were consistent with these findings. The court filed its order restraining Stephanie from removing Trevor from the State of South Dakota on November 4, 1991.
On December 13, 1991, Stephanie filed a motion for clarification of this order. Lee had taken the position that Stephanie was restricted from taking Trevor out of South Dakota for any purpose and any duration of time. By this time Stephanie had married Robert. She remained in Watertown with Trevor; Robert lived in Ohio. Stephanie was managing a retail floor for Cook’s, Inc. in Watertown, and wanted to take Trevor with her to spend the holidays in Ohio with Robert, in Louisiana with Robert’s relatives, or in Iowa with her parents.
On January 8, 1992 the trial court filed an order which said that its November 1991 order applied only to the removal of Trevor’s residence from South Dakota. Lee and Stephanie only had to give each other reasonable notice of their intent to take Trevor out-of-state, their intended destinations and the duration of the visits.
Stephanie appealed from the November 1991 order as clarified by the January 8, 1992 order.
ISSUE
WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN REFUSING TO PERMIT THE CUSTODIAL PARENT TO CHANGE THE MINOR CHILD’S RESIDENCE FROM SOUTH DAKOTA TO OHIO?
“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. (emphasis supplied). This statute mandates that the trial court consider the best interests of the child prior to permitting the move. Matter of Ehlen, 303 N.W.2d 808 (S.D.1981). “The majority of cases dealing with removal of a child from the jurisdiction support the rule that if a parent who has custody of a child has good reason for living in another state, removal will be permitted, providing such a move is consistent with the best interests of the child.” Id. at 810. This Court reviews a trial court order permitting or denying removal to determine whether the trial court [232]*232abused its discretion. Ducheneaux v. Ducheneaux, 427 N.W.2d 122 (S.D.1988).
In South Dakota there are two cases specifically dealing with a custodial parent’s request to move with the children to a different jurisdiction. Matter of Ehlen, supra; Ducheneaux, supra. In Ehlen, supra, the custodial mother remarried and planned to move to Seattle, Washington, where she and her husband would be employed and would enroll the children in school as well as sports and cultural programs. This court affirmed the trial court’s decision that the move was in the children’s best interests. In Ducheneaux, supra, this court affirmed the trial court’s decision denying the custodial parent's request to move the children to California. In that case, moving meant the loss of public health services, living on ADC benefits on arrival in California since the custodial mother had no definite employment arrangement in California, and the loss of the daily paternal visitation and influence that the children were accustomed to in South Dakota.
In this case, the trial court prohibited the custodial mother from moving her son with her to Ohio for the sole reason that the move would disrupt the noncustodial father’s visitation with and influence over his son, of whom he never sought custody. This limited focus ignores several factors which in the context of a divorce and modern society, play a part in a child’s best interest. First, divorce by its very nature creates different family units with different dynamics among the original family members. D’Onofrio v. D’Onofrio, 144 N.J.Super. 200, 365 A.2d 27 (1976). See, Edward Sivin, Note, Residence Restrictions for Custodial Parents: Implications for the Right to Travel, 12 Rutgers L.J. 341 (1981). Any divorce and any relocation will impact the noncustodial parent’s role in a child’s life. Second, society is mobile and opportunity and economic necessity often necessitate moves to distant places, Lindley v. Lindley, 401 N.W.2d 732 (S.D.1987). And, finally, the best interests of the children prevail over the noncustodial parent’s privilege of visitation. Id.
The D’Onofrio case, supra, that this Court cited in Matter of Ehlen, supra provides thoughtful observations:
The children, after the parents’ divorce or separation, belong to a different family unit than they did when the parents lived together. The new family unit consists only of the children and the custodial parent, and what is advantageous to that unit as a whole, to each of its members individually and to the way they relate to each other and function together is obviously in the best interests of the children. It is in the context of what is best for that family unit that the precise nature and terms of visitation and changes in visitation by the noncustodial parent must be considered.
* ⅜ $ $ * ⅜
The court should not insist that the advantages of the move be sacrificed and the opportunity for a better and more comfortable life style for the mother and children be forfeited solely to maintain weekly visitation by the father where reasonable alternative visitation is available and where the advantages of the move are substantial. It is at least arguable, and the literature does not suggest otherwise, that the alternative of uninterrupted visits of a week or more in duration several times a year, where the father is in constant and exclusive parental contact with the children and has to plan and provide for them on a daily basis, may well serve the paternal relationship better than the typical weekly visit which involves little if any exercise of real paternal responsibility.
It is further clear that a noncustodial parent is perfectly free to remove himself from this jurisdiction despite the continued residency here of his children in order to seek opportunities for a better or different life style for himself. And if he does choose to do so, the custodial parent could hardly hope to restrain him from leaving this State on the ground that his removal will either deprive the children of their paternal relationship or depreciate its quality. The custodial parent, who bears the essential burden and [233]*233responsibility for the children, is clearly entitled to the same option to seek a better life for herself and the children, particularly where the exercise of that option appears to be truly advantageous to their interests and provided that the parental interest can continue to be accommodating, even if by a different visitation arrangement than theretofore.
Id., 144 N.J.Super. at 206-208, 365 A.2d at 29-30.
In South Dakota, the custodial parent has the right to change his residence unless removal would prejudice the child’s rights or welfare. SDCL 25-5-13. After a careful review of the evidence we are convinced that the trial court abused its discretion by restraining Stephanie from removing Trevor from South Dakota.
The record reflects that both parents are loving and concerned and have worked together, despite their divorce, for their son’s well-being. Stephanie, however, has been Trevor’s primary caregiver since his birth. Her desire to move to Ohio was motivated by an impending marriage2 which offered her the financial security to be able to not work outside of the home for a year in order to make Trevor’s transition smooth. She had no desire to frustrate or defeat Lee’s influence over or visitation with his son. Since the divorce she made sure that Lee had very liberal visitation with his son and, if the move to Ohio was approved, she offered Lee eight weeks of summer visitation together with two weeks during the holiday season. In addition, she offered to share the cost of transporting Trevor to see his father. Telling also is the fact that Lee gave Stephanie sole custody of Trevor and never sought custody after he learned of the move, an indication that he lacks concern that a move would prejudice his son’s welfare. Under these circumstances, the trial court abused its discretion by restraining Stephanie from removing Trevor from South Dakota.
The order appealed from is reversed. Stephanie has filed a motion and affidavit in accordance with Malcolm v. Malcolm, 365 N.W.2d 863 (S.D.1985), in the total amount of $2,933.55. Based on the Malcolm v. Malcolm factors, Stephanie’s motion for attorney’s fees and tax is granted in the amount of $1,500.00.
WUEST and AMUNDSON, JJ„ concur.
MILLER, C.J., and HENDERSON, J., dissent.