DUNN, Justice (on reassignment).
James Madson (appellant) appeals from a judgment and decree of divorce which awarded to Lois Madson (appellee) custody of the parties’ son. We reverse and remand.
The parties were married on September 5, 1970 and a decree of divorce was entered by the trial court on January 28, 1980. Their son was born on September 30, 1975. [43]*43The trial court granted both parties a divorce on the grounds of extreme cruelty and found that both parties were fit and proper persons to have custody of their son. The trial court found that the best interests of the child would be protected by placing the child in the custody of appellee, subject to appellant’s 'reasonable rights of visitation. Appellant contends that the trial court abused its discretion in finding that appellee was fit to have custody of the parties’ child.
The trial court has broad discretionary powers in determining the custody of minor children and this court will not interfere with that discretion unless there is a clear case of abuse presented by the record. O’Connor v. O’Connor, 307 N.W.2d 132 (S.D.1981); Martin v. Martin, 306 N.W.2d 648 (S.D.1981); Engels v. Engels, 297 N.W.2d 489 (S.D.1980); Isaak v. Isaak, 278 N.W.2d 445 (S.D.1979). “This exercise of judicial discretion, however, must have sound and substantial basis in the testimony.” Aulner v. Aulner, 296 N.W.2d 533, 535 (S.D.1980); Haskell v. Haskell, 279 N.W.2d 903 (S.D.1979). The best interests of the child relative to its temporal, mental and moral welfare are the primary criterion to be considered by the trial court in custody determinations. SDCL 30-27-19; Haskell v. Haskell, supra; Yager v. Yager, 83 S.D. 315, 159 N.W.2d 125 (S.D.1968). We conclude that the trial court’s determination does not have a sound and substantial basis in the testimony.
The record indicates that during the first seven years of the marriage appellant engaged in extra-marital sexual relationships, while appellee did not. In the spring of 1977, the parties agreed to experiment with the concept of an open marriage. Both parties participated in a number of liaisons between the spring of 1977 and the commencement of this divorce action in March of 1979.
During their marriage, both parties used marijuana and had experimented with other drugs. The child was allowed to pass a marijuana cigarette, but he was not allowed to smoke marijuana.
During one of appellee’s liaisons, appellee engaged in sexual intercourse with one of her paramours on the ground in a public park with the child observing. Later the child was able to relate the intimate details of this sexual act to appellant. On other occasions, appellee would stay out all night with her paramours and arranged one weekend-long encounter.
In February of 1979, appellee and the child moved out of the marital home and in March of 1979, they moved into the home of another of her paramours in Gayville, South Dakota. This household consisted of the man’s former wife, their daughter, and his teenage brother. While living with this paramour, the child again observed appellee while she was engaging in the act of sexual intercourse. The child was then four years old, and appellee testified that she “made no big deal of it” because she did not want the boy to think “it was bad or naughty.” At trial, appellee admitted that she regularly had intercourse with this paramour.
Appellee and her son left the residence in Gayville in September of 1979 and established a home in Yankton, South Dakota. She obtained employment at the Yankton Community Day Care Center, where her son was enrolled. The divorce trial was held on October 3, 1979. At the end of October, appellee quit her job and she and her son returned to the Gayville residence.
The record indicates instances of marital misconduct on the part of both parties. “We must remember that marital responsibilities must not be confused with parental responsibilities.” Holforty v. Holforty, 272 N.W.2d 810, 811 (S.D.1978). Fault for the purposes of divorce is not to be considered with regard to awarding custody of children except as fault may be relevant to the fitness of either parent. SDCL 25-4-45.1; Holforty v. Holforty, supra.
This court has held that where there is no evidence of a demonstrable effect of a parent’s marital misconduct upon the child, it does not follow that the parent is an unfit person to have custody and that an award [44]*44of custody to that parent is not in the best interest and welfare of the child. Haskell v. Haskell, supra; Holforty v. Holforty, supra; Spaulding v. Spaulding, 278 N.W.2d 639 (S.D.1979); Kester v. Kester, 257 N.W.2d 731 (S.D.1977). The harmful effect of marital misconduct is self-evident, however, if it is committed in the presence of a child old enough to see and recognize the improprieties. Haskell v. Haskell, supra; Spaulding v. Spaulding, supra.
In this instance, the evidence is clear that the child observed appellee’s indiscretions on two occasions. Even though the child was only two years old at the time of the first occurrence and four years old when the second indiscretion occurred, the child was able to relate the details of the sexual act to appellant. This indicates that the child was old enough to see and recognize the improprieties of appellee’s acts. Furthermore, appellee continued her pattern of marital misconduct right up to the time of the divorce hearing and resumed it shortly after the hearing. As this court noted in Yager v. Yager, 83 S.D. at 319, 159 N.W.2d at 127: “The record here is not one of a single or occasional indiscretion, but a course of serious marital misconduct.” See also Hines v. Hines, 78 S.D. 464, 104 N.W.2d 375 (1960).
In addition to the evidence that appellee associated with other men, the record also indicates that appellee frequently stayed away from her child until the early hours of the morning and planned a weekend-long rendezvous with one of her paramours. The home environment which appellee established for herself and her child in Gay-ville after separating from appellant was less than desirable. In this environment, in the presence of her son, appellee openly carried on an adulterous affair with her paramour, who was still living with his ex-wife and child. Appellant testified that this paramour threatened his life in front of his son and tried to belittle him in his son’s eyes.
In conclusion, appellee’s admitted conduct is more than sufficient to reverse the finding that she is a fit parent to have custody of the child.
Free access — add to your briefcase to read the full text and ask questions with AI
DUNN, Justice (on reassignment).
James Madson (appellant) appeals from a judgment and decree of divorce which awarded to Lois Madson (appellee) custody of the parties’ son. We reverse and remand.
The parties were married on September 5, 1970 and a decree of divorce was entered by the trial court on January 28, 1980. Their son was born on September 30, 1975. [43]*43The trial court granted both parties a divorce on the grounds of extreme cruelty and found that both parties were fit and proper persons to have custody of their son. The trial court found that the best interests of the child would be protected by placing the child in the custody of appellee, subject to appellant’s 'reasonable rights of visitation. Appellant contends that the trial court abused its discretion in finding that appellee was fit to have custody of the parties’ child.
The trial court has broad discretionary powers in determining the custody of minor children and this court will not interfere with that discretion unless there is a clear case of abuse presented by the record. O’Connor v. O’Connor, 307 N.W.2d 132 (S.D.1981); Martin v. Martin, 306 N.W.2d 648 (S.D.1981); Engels v. Engels, 297 N.W.2d 489 (S.D.1980); Isaak v. Isaak, 278 N.W.2d 445 (S.D.1979). “This exercise of judicial discretion, however, must have sound and substantial basis in the testimony.” Aulner v. Aulner, 296 N.W.2d 533, 535 (S.D.1980); Haskell v. Haskell, 279 N.W.2d 903 (S.D.1979). The best interests of the child relative to its temporal, mental and moral welfare are the primary criterion to be considered by the trial court in custody determinations. SDCL 30-27-19; Haskell v. Haskell, supra; Yager v. Yager, 83 S.D. 315, 159 N.W.2d 125 (S.D.1968). We conclude that the trial court’s determination does not have a sound and substantial basis in the testimony.
The record indicates that during the first seven years of the marriage appellant engaged in extra-marital sexual relationships, while appellee did not. In the spring of 1977, the parties agreed to experiment with the concept of an open marriage. Both parties participated in a number of liaisons between the spring of 1977 and the commencement of this divorce action in March of 1979.
During their marriage, both parties used marijuana and had experimented with other drugs. The child was allowed to pass a marijuana cigarette, but he was not allowed to smoke marijuana.
During one of appellee’s liaisons, appellee engaged in sexual intercourse with one of her paramours on the ground in a public park with the child observing. Later the child was able to relate the intimate details of this sexual act to appellant. On other occasions, appellee would stay out all night with her paramours and arranged one weekend-long encounter.
In February of 1979, appellee and the child moved out of the marital home and in March of 1979, they moved into the home of another of her paramours in Gayville, South Dakota. This household consisted of the man’s former wife, their daughter, and his teenage brother. While living with this paramour, the child again observed appellee while she was engaging in the act of sexual intercourse. The child was then four years old, and appellee testified that she “made no big deal of it” because she did not want the boy to think “it was bad or naughty.” At trial, appellee admitted that she regularly had intercourse with this paramour.
Appellee and her son left the residence in Gayville in September of 1979 and established a home in Yankton, South Dakota. She obtained employment at the Yankton Community Day Care Center, where her son was enrolled. The divorce trial was held on October 3, 1979. At the end of October, appellee quit her job and she and her son returned to the Gayville residence.
The record indicates instances of marital misconduct on the part of both parties. “We must remember that marital responsibilities must not be confused with parental responsibilities.” Holforty v. Holforty, 272 N.W.2d 810, 811 (S.D.1978). Fault for the purposes of divorce is not to be considered with regard to awarding custody of children except as fault may be relevant to the fitness of either parent. SDCL 25-4-45.1; Holforty v. Holforty, supra.
This court has held that where there is no evidence of a demonstrable effect of a parent’s marital misconduct upon the child, it does not follow that the parent is an unfit person to have custody and that an award [44]*44of custody to that parent is not in the best interest and welfare of the child. Haskell v. Haskell, supra; Holforty v. Holforty, supra; Spaulding v. Spaulding, 278 N.W.2d 639 (S.D.1979); Kester v. Kester, 257 N.W.2d 731 (S.D.1977). The harmful effect of marital misconduct is self-evident, however, if it is committed in the presence of a child old enough to see and recognize the improprieties. Haskell v. Haskell, supra; Spaulding v. Spaulding, supra.
In this instance, the evidence is clear that the child observed appellee’s indiscretions on two occasions. Even though the child was only two years old at the time of the first occurrence and four years old when the second indiscretion occurred, the child was able to relate the details of the sexual act to appellant. This indicates that the child was old enough to see and recognize the improprieties of appellee’s acts. Furthermore, appellee continued her pattern of marital misconduct right up to the time of the divorce hearing and resumed it shortly after the hearing. As this court noted in Yager v. Yager, 83 S.D. at 319, 159 N.W.2d at 127: “The record here is not one of a single or occasional indiscretion, but a course of serious marital misconduct.” See also Hines v. Hines, 78 S.D. 464, 104 N.W.2d 375 (1960).
In addition to the evidence that appellee associated with other men, the record also indicates that appellee frequently stayed away from her child until the early hours of the morning and planned a weekend-long rendezvous with one of her paramours. The home environment which appellee established for herself and her child in Gay-ville after separating from appellant was less than desirable. In this environment, in the presence of her son, appellee openly carried on an adulterous affair with her paramour, who was still living with his ex-wife and child. Appellant testified that this paramour threatened his life in front of his son and tried to belittle him in his son’s eyes.
In conclusion, appellee’s admitted conduct is more than sufficient to reverse the finding that she is a fit parent to have custody of the child.
The testimony regarding appellant’s fitness to have custody of the child is unclear. The testimony conflicts as to whether the child also observed appellant having sexual intercourse with other women. Evidence was also introduced indicating that the child was underweight for his age when in appellant’s care. Appellee testified that the child often suffered from diarrhea when she picked him up after visitations with appellant, that the child frequently was ill with fever after those visits, and that he vomited during the nighttime on several occasions after returning to appellee’s home.
This court has recognized that where the mother by irresponsible conduct indicates that her care and custody would be detrimental to the welfare of the child as was shown here, custody may be awarded to the father or in extreme cases to someone else. Septka v. Septka, 80 S.D. 299, 122 N.W.2d 766 (1963). Other courts have recognized that even though a parent is fit to have custody, he may be denied custody if this is clearly inimical to the best interests of the child. In re Marriage of Smith, 269 N.W.2d 406 (Iowa 1978); 24 Am.Jur.2d Divorce § 789 (1966). “Neither parent is entitled to custody as a matter of right. The consideration paramount to all others is the welfare and best interests of the children.” Yager v. Yager, 83 S.D. at 317, 159 N.W.2d at 127.
In light of our finding that appellee is an unfit parent to have custody of the child and in view of the over one and one-half years that have passed since the trial court granted custody to appellee, we remand this matter to the trial court for a redetermi-nation of the custody of the child. The interests of the child are too important to be determined by a record that may be quite stale. Edel v. Edel, 97 Mich.App. 266, 293 N.W.2d 792 (1980); Roudabush v. Roudabush, 62 Mich.App. 391, 233 N.W.2d 596 (1975). The trial court should determine whether the welfare and best interests of the child will be served by granting custody to appellant or to a third party.
We reverse and remand for proceedings not inconsistent with this opinion.
[45]*45MORGAN, HENDERSON and FOSH-EIM, JJ., concur.
WOLLMAN, C. J., dissents.