## Facts

- James Mark Van Driel and Lori Ann Van Driel divorced in 1991 after about ten years of marriage and had two minor children.
- The divorce judgment adopted an agreement providing joint legal and joint physical custody on an alternating weekly schedule.
- During separation and after divorce, Lori entered a committed same-sex relationship and lived with her partner.
- James petitioned to modify custody, asserting Lori’s relationship was immoral and predicting future peer ridicule and negative effects on the children.
- A jointly retained clinical psychologist conducted a custody evaluation and recommended that primary physical custody be placed with Lori.
- The trial court found both parents fit and awarded Lori primary physical custody with liberal visitation for James.
- While the modification proceedings were pending, James remarried; his household included a stepson and later twins (the children’s half-siblings).
- After the custody award, Lori sought to move from South Dakota to Minnesota due to the closure of her workplace; James sought reconsideration based on the move and Lori’s sexual orientation.
- The trial court denied reconsideration, and James appealed.

## Issues

1. Whether the trial court erred in awarding Lori primary physical custody despite her same-sex cohabiting relationship, absent evidence of harm to the children.
2. Whether the trial court reversibly erred by placing the children with Lori, thereby separating them from a stepbrother and later half-siblings in James’s household, without explicit written findings of “exceptional circumstances” and “clear and compelling reasons.”
3. Whether Lori’s relocation to Minnesota constituted a substantial change in circumstances requiring a transfer of primary physical custody to James.

## Decision

- The Supreme Court affirmed the award of primary physical custody to Lori.
- The Court held that Lori’s sexual orientation and cohabitation were not grounds to deny custody without evidence that the children’s welfare was adversely affected.
- The Court found no reversible error in the children’s separation from a step-sibling and half-siblings, notwithstanding the lack of formulaic written findings using “exceptional circumstances” language.
- The Court affirmed the denial of reconsideration, concluding that the move prompted by employment closure did not require changing custody.
- The Court deferred to the trial court’s custody findings and determinations, finding no abuse of discretion or clearly erroneous factual findings.

## Legal Principles

- Child-custody determinations turn on the best interests of the child; modification requires a substantial change in circumstances and a showing that change is necessary for the child’s best interests.
- A parent’s sexual orientation may be considered only to the extent it bears on the child’s welfare; it is not a per se basis to find unfitness or to change custody.
- Speculative or moral objections, without concrete evidence of present or likely harm to the child, do not justify modifying custody.
- Trial courts receive substantial deference in custody matters because they assess credibility and evidence firsthand; appellate courts will not disturb custody decisions absent clear error or abuse of discretion.
- Although courts generally disfavor separating siblings absent exceptional circumstances and clear and compelling reasons, the principle is not absolute and must yield to the best-interests analysis; it applies most strongly to full siblings and less rigidly to step- and half-siblings.

## Conclusion

The court upheld primary physical custody with the mother because the evidence supported the children’s best interests and showed no harm from her same-sex relationship or relocation; the custody decision, including any resulting separation from step- and half-siblings, was within the trial court’s discretion.


Van Driel v. Van Driel, 525 N.W.2d 37 (S.D. 1994)