Clough v. Nez

#24675, #24677-a-SLZ

2008 SD 125

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

KEITH CLOUGH, Plaintiff and Appellee,

v.

LORRAINE NEZ, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA

* * * *

HONORABLE JOHN J. DELANEY
Judge

* * * *

STEPHEN C. HOFFMAN
PATRICIA A. MEYERS of
Costello, Porter, Hill, Heisterkamp,
Bushnell & Carpenter, LLP Attorneys for plaintiff
Rapid City, South Dakota and appellee.

DANA L. HANNA Attorney for defendant
Rapid City, South Dakota and appellant.

* * * *

ARGUED ON OCTOBER 1, 2008

OPINION FILED 12/23/08
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ZINTER, Justice

[¶1.] Lorraine Nez appeals the circuit court’s award of visitation to Keith

Clough, a nonparent. Because the circuit court found extraordinary circumstances

for an award of visitation to a nonparent, we affirm.

Facts and Procedural History

[¶2.] This case involves a visitation dispute regarding five-year-old C.C.,

who was born on May 26, 2003. Clough claimed that he had sexual intercourse with

Nez in August 2002. Clough further claimed that Nez subsequently told him she

was pregnant and he was the father. Nez denied that she had sexual intercourse

with Clough, but that in order to relieve a “big mental strain,” she wanted Clough

and his girlfriend Lee Ann Strenstrom (Nez’s half-sister) to raise C.C. until Nez was

“out of school, and stable.” According to Nez, she made an agreement with Clough

and Strenstrom that they would share the responsibility of raising C.C. According

to Clough, however, Strenstrom had little involvement as he and she were only

dating “on and off. She wasn’t living with me and what not. Basically, an on-and-

off girlfriend at that point[.]” Notwithstanding this dispute regarding the nature of

the Clough-Strenstrom relationship, there is no dispute that on June 10, 2003, Nez

and Clough executed a sworn acknowledgment of paternity expressly indicating

Clough was C.C.’s biological father. A birth certificate was thereafter issued

reflecting Clough’s surname.

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[¶3.] According to Clough, he took C.C. from Mission to live with him in

Sioux Falls two days after her birth. 1 Clough testified that when he took C.C. to

Sioux Falls, he and Strenstrom were not living together, and that he alone raised

C.C. He further testified that Strenstrom only “occasionally” saw C.C. Conversely,

Nez claimed that Strenstrom and Clough were living together “every day,” and that

they raised C.C. together until July 2004. The circuit court resolved this factual

dispute adversely to Nez. The circuit court’s finding, which has not been

challenged, treats Clough as the primary caretaker. And more importantly, it is not

disputed that during the first four years of C.C.’s life, Nez provided no support, and

Nez’s contact with C.C. was limited and infrequent.

[¶4.] In 2004, Clough was charged with simple assault involving

Strenstrom. 2 Upon his arrest, Clough’s mother took C.C. from Sioux Falls to

temporarily care for her in Mission. Although Nez then started two tribal court

proceedings to obtain custody, both actions were dismissed for lack of jurisdiction.

C.C. was subsequently returned to Sioux Falls to again live with Clough.3 In

January of 2005, Clough and C.C. moved to Rapid City. Although the circuit court

1. This point is also in dispute. Clough testified “from that point on basically I
would be taking care of her and raising her the best way I could.” Nez,
however, claimed that she kept C.C. in Mission for nearly three months.

2. This matter was resolved by Clough’s plea to disorderly conduct and the
entry of a protection order.

3. During the time Clough’s mother was caring for C.C. in Mission, Clough
obtained a protection order prohibiting Strenstrom from having any contact
with Clough or C.C.

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found that Nez knew or could have determined Clough’s new location, Nez had no

contact with C.C. from December 2004 through March 2006.

[¶5.] On September 21, 2006, Clough commenced this suit seeking legal and

physical custody of C.C. Nez objected, denying that Clough was C.C.’s father. Nez

also sought custody and requested court-ordered DNA tests to determine whether

Clough was the biological father. Clough objected to the DNA test because the time

for contesting paternity had expired under the statute of limitations. The circuit

court ruled that this Court declared the statute of limitations unconstitutional 4 and

ordered Clough to take a DNA test. The test indicated that Clough was not C.C.’s

biological father.

[¶6.] At the beginning of trial, Clough conceded that he was not the

biological father and he withdrew his claim for custody. He did, however, request

that the court award him visitation. After hearing the evidence, the circuit court

awarded Nez custody. The court ruled that even though Clough did not dispute

Nez’s fitness, and even though Clough was not the biological father, visitation

would be allowed because extraordinary circumstances justified visitation, namely:

(1) Clough was C.C.’s primary caretaker since the time of her birth, (2) Clough and

C.C. were closely bonded, (3) rupturing the connection between Clough and C.C.

4. In 2004, a majority of this Court declared the statute of limitations in SDCL
25-8-59 unconstitutional. Dep’t of Soc. Serv. ex rel. Wright v. Byer, 2004 SD
41, 678 NW2d 586 (Byer I). On rehearing, a majority held that declaration in
abeyance until paternity tests were completed and the majority could better
assess the statute’s constitutionality. Dep’t of Soc. Serv. ex rel. Wright v.
Byer, 2005 SD 37, 694 NW2d 705 (Byer II). Because the Byer II dispute
never returned to the Court, this Court’s suspension of its unconstitutionality
declaration is our last ruling on this issue.

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would be extremely harmful and detrimental to C.C.’s welfare, and (4) Clough had

provided for C.C.’s physical, emotional and other needs her entire life. The court

concluded that “[p]ursuant to SDCL 25-5-29 and 25-5-30, extraordinary

circumstances exist [that] require the relationship between [Clough] and [C.C.] be

continued.” The court awarded Clough visitation that included a full weekend each

month, summer visitation, and alternate holidays.

[¶7.] Nez does not appeal the nature or extent of the visitation ordered.

Instead, she appeals the award of any visitation, arguing that Clough failed to show

the extraordinary circumstances required for a nonparent to obtain visitation. Nez

also argues that the circuit court erred by failing to give deference to her wishes as

the biological parent and by failing to apply the correct burden of proof. By notice of

review, Clough appeals the circuit court’s award of custody to Nez.

Decision

[¶8.] These arguments require our review of the statutes and decisional law

governing a nonparent’s right to custody and visitation of children. The arguments

also require our review of the circuit court’s extraordinary circumstances findings.

We “review the trial court’s findings of fact under the clearly erroneous standard

[and] will overturn . . . findings of fact on appeal only when a complete review of the

evidence leaves the Court with a definite and firm conviction that a mistake has

been made.” Miller v. Jacobsen, 2006 SD 33, ¶19, 714 NW2d 69, 76. “Statutory

interpretation is a question of law, reviewed de novo.” Scheller v. Faulkton Area

Sch. Dist. No. 24-3, 2007 SD 42, ¶5, 731 NW2d 914, 916.

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[¶9.] The Due Process Clause of the United States Constitution protects

parents’ rights to generally raise their children as they wish. Medearis v. Whiting,

2005 SD 42, ¶17, 695 NW2d 226, 230-31 (citing Troxel v. Granville, 530 US 57, 66,

120 SCt 2054, 2060, 147 LEd2d 49 (2000)) (noting, “it cannot now be doubted that

the Due Process Clause of the Fourteenth Amendment protects the fundamental

right of parents to make decisions concerning the care, custody, and control of their

children”). Accordingly, a court may not presume that visitation with a nonparent

is in the best interests of a fit parent’s child. Id. ¶18, 695 NW2d at 231 (citing

Troxel, 530 US at 69, 120 SCt at 2062). Further, the burden of disproving that a

nonparent’s visitation would be in the best interests of the child may not be placed

upon a fit parent. Id. Ultimately, “[i]n order to grant a nonparent visitation rights

with a minor child over the objections of a parent, a clear showing of gross

misconduct, unfitness, or other extraordinary circumstances affecting the welfare of

the child is required.” D.G. v. D.M.K., 1996 SD 144, ¶46, 557 NW2d 235, 243 (citing

Cooper v. Merkel, 470 NW2d 253, 255-56 (SD 1991)).

[¶10.] “‘Extraordinary circumstances’ denotes more than a simple showing

that visitation would be in the child’s best interest.” Id. (citing Quinn v. Mouw-

Quinn, 1996 SD 103, ¶13, 552 NW2d 843, 846). Although discussed in the

analogous area of custody disputes, courts have identified a number of

extraordinary circumstances that are sufficient to rebut the constitutional

presumption of deference due parents.

These circumstances must be only those that result in serious
detriment to the child. They include the abandonment or
persistent neglect of the child by the parent; the likelihood of
serious physical or emotional harm to the child if placed in the

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parent’s custody; the extended, unjustifiable absence of parental
custody; the abdication of parental responsibilities; the
provision of the child’s physical, emotional, and other needs by
persons other than the parent over a significant period of time;
the existence of a bonded relationship between the child and the
nonparent custodian sufficient to cause significant emotional
harm to the child in the event of a change in custody; the
substantial enhancement of the child’s well-being while under
the care of the nonparent; the extent of the parent’s delay in
seeking to reacquire custody of the child; the demonstrated
quality of the parent’s commitment to raising the child; the
likely degree of stability and security in the child’s future with
the parent; the extent to which the child's right to an education
would be impaired while in the custody of the parent; and any
other circumstances that would substantially and adversely
impact the welfare of the child.

Meldrum v. Novotny, 2002 SD 15, ¶58, 640 NW2d 460, 470-71 (Konenkamp, J.

concurring in part) (citations omitted).

[¶11.] Following Meldrum, these rebutting circumstances were codified in

SDCL 25-5-29 and 25-5-30. SDCL 25-5-29 expressly authorizes nonparents to

petition for custody or visitation if they have served as the child’s primary

caretaker, are closely bonded as a parental figure, or have otherwise formed a

significant and substantial relationship. Even then, however, they may petition for

custody or visitation only when the constitutional presumptions due parents are

rebutted. The statute finally identifies a number of those rebutting circumstances.

Except for proceedings under chapter 26-7A, 26-8A, 26-8B, or
26-8C, the court may allow any person other than the parent of
a child to intervene or petition a court of competent jurisdiction
for custody or visitation of any child with whom he or she has
served as a primary caretaker, has closely bonded as a parental
figure, or has otherwise formed a significant and substantial
relationship. It is presumed to be in the best interest of a child
to be in the care, custody, and control of the child’s parent, and
the parent shall be afforded the constitutional protections as
determined by the United States Supreme Court and the South

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Dakota Supreme Court. A parent’s presumptive right to custody
of his or her child may be rebutted by proof:
(1) That the parent has abandoned or persistently neglected the child;
(2) That the parent has forfeited or surrendered his or her parental
rights over the child to any person other than the parent;
(3) That the parent has abdicated his or her parental rights and
responsibilities; or
(4) That other extraordinary circumstances exist which, if
custody is awarded to the parent, would result in serious
detriment to the child.

SDCL 25-5-29. In this case, the circuit court relied on rebutting presumption (4),

which involves any extraordinary circumstance resulting in serious detriment to

the child.

[¶12.] SDCL 25-5-30 defines that “serious detriment” element of subdivision

(4). It identifies ten extraordinary circumstances that constitute the serious

detriment necessary to interfere in parents’ decisions regarding their children.

Circumstances (3) and (4) are at issue in this case.

Serious detriment to a child may exist whenever there is proof
of one or more of the following extraordinary circumstances:

(1) The likelihood of serious physical or emotional harm to the
child if placed in the parent’s custody;
(2) The extended, unjustifiable absence of parental custody;
(3) The provision of the child’s physical, emotional, and other
needs by persons other than the parent over a significant period
of time;
(4) The existence of a bonded relationship between the child
and the person other than the parent sufficient to cause
significant emotional harm to the child in the event of a change
in custody;
(5) The substantial enhancement of the child’s well-being while
under the care of a person other than the parent;
(6) The extent of the parent’s delay in seeking to reacquire
custody of the child;
(7) The demonstrated quality of the parent’s commitment to
raising the child;
(8) The likely degree of stability and security in the child’s
future with the parent;
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(9) The extent to which the child’s right to an education would
be impaired while in the custody of the parent; or
(10) Any other extraordinary circumstance that would
substantially and adversely impact the welfare of the child.

SDCL 25-5-30.

[¶13.] Although both parties agreed at trial that SDCL 25-5-29 and 25-5-30

governed these proceedings, a number of Nez’s appellate arguments implicitly

question whether these extraordinary circumstances statutes apply in a visitation

dispute. Nez argues that the reference to “visitation” in SDCL 25-5-29 only relates

to standing, suggesting that the remaining language in SDCL 25-5-29 and 30 does

not govern the proof necessary to award visitation. If applicable, these statutes

dispose of a number of Nez’s arguments. We therefore first consider whether the

statutes apply to a visitation dispute.

[¶14.] SDCL 25-5-29 and SDCL 25-5-30 were enacted in 2002, as a part of

2002 Sess Laws ch 126, “An Act to revise and modify certain provisions relating to

the award of child custody and to declare an emergency.” Although this title only

mentions the word “custody,” three of the Act’s five substantive sections reflect that

it was intended to govern both custody and visitation. See SDCL 25-5-29 (SL 2002,

ch 126, §1) (providing that a nonparent may petition any court of competent

jurisdiction “for custody or visitation” under certain enumerated circumstances);

SDCL 25-5-31 (SL 2002, ch 126, §3) (providing that nothing in SDCL 25-5-29

creates any right on behalf of a stepparent to seek “custody or visitation” with

certain stepchildren); and SDCL 25-5-32 (SL 2002, ch 126, §4) (providing that if a

court determines a person other than a parent should be awarded “custody or

visitation,” the court need not terminate either parent’s parental rights over the

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child). There are also obvious reasons why the three remaining provisions of the

Act did not expressly refer to visitation. 5 Because the relevant substantive

provisions expressly contemplate an award of custody or visitation, we conclude

that the Legislature intended this Act to cover both.

[¶15.] Moreover, even if the statutes were not expressly intended to govern

visitation, we see no reason why the common law regarding extraordinary

circumstances, as expressed in Meldrum, supra, and later codified in these statutes,

should not apply to both custody and visitation. As we have previously noted, “[t]he

right of visitation derives from the right of custody and is controlled by the same

legal principles.” Cooper, 470 NW2d at 255. Therefore, even if the statutes did not

expressly apply, the common-law legal principles codified therein are the type of

extraordinary circumstances necessary to satisfy due process concerns.

Consequently, we review the circuit court’s decision under SDCL 25-5-29 and 25-5-

30 to determine whether Clough proved one or more of those extraordinary

circumstances necessary for a nonparent to obtain visitation.

5. Although the three remaining provisions do not expressly mention visitation,
they either implicitly reference visitation or that subject is not relevant to
that specific section’s purpose. See SDCL 25-5-30 (SL 2002, ch 126, §2)
defining the serious detriment referred to in SDCL 25-5-29, which expressly
refers to both custody and visitation; SDCL 25-5-33 (SL 2002, ch 126, §5),
which only deals with the issue of child support should custody be given to a
nonparent, a subject not at issue in a visitation dispute. Finally, based upon
the language and time of enactment, it is obvious that this Act was adopted
in response to this Court’s custody decision in Meldrum. See supra ¶11.
Because the Legislature apparently wished the Act to apply to that pending
custody proceeding, the Legislature adopted SDCL 25-5-34 (SL 2002, ch 126,
§6), which provided for the Act’s immediate application to pending custody
proceedings.

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[¶16.] The circuit court’s decision was predicated on findings of fact all

emanating from the undisputed circumstance that Nez had never supported or been

the caretaker of her child. Thus, there can be no substantial dispute with the

court’s finding that Clough “served as the primary caretaker for the minor child

since the time of her birth until the time of hearing regarding custody and visitation

on May 1, 2007,” a period of four years. This finding alone was sufficient to rebut

Nez’s presumptive rights as a parent under SDCL 25-5-29(4) and 25-5-30(3)

(extraordinary circumstances causing serious detriment to a child exist when the

child’s needs have been provided by a nonparent over a significant period of time).

As Justice Konenkamp observed in Meldrum, “extraordinary circumstances . . .

include . . . the provision of the child’s physical, emotional, and other needs by

persons other than the parent over a significant period of time[.]” 2002 SD 15, ¶58,

640 NW2d 460, 470-71 (Konenkamp, J., concurring in part).6

[¶17.] There is also no real dispute with the court’s finding that Clough “has

closely bonded as a parental figure with [C.C.] and has otherwise formed a

significant and substantial relationship with [C.C.]. More importantly, the child

has bonded with [Clough].” Clough testified that C.C. calls him “dad,” and he and

6. A similar factual situation was presented in Meldrum, wherein Justice
Konenkamp noted:

The child ha[d] been in [the nonparent’s] custody for more than eight
years. Much of that time the [parent] acquiesced in the situation.
There were many years where there was no contact between [parent]
and [child].

2002 SD 15, ¶59, 640 NW2d at 471.

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C.C. “have a very good father/daughter relationship. We love doing things. . . .

We’re real close.” Clough further testified that “if she were to lose me, I don’t know

what her reaction would be. I think she would probably be pretty pained. It would

be pretty detrimental to her[.]” Thus, this finding further, independently rebutted

Nez’s presumptive rights under SDCL 25-5-29(4) and 25-5-30(4) (extraordinary

circumstances exist when there is “[t]he existence of a bonded relationship between

the child and the person other than the parent sufficient to cause significant

emotional harm to the child”).

[¶18.] Although Nez points out that no expert testified that C.C. would

actually suffer a serious detriment without visitation, expert testimony is not

required to establish the probability of emotional harm to a child. That “assessment

can be made within ordinary experience, no expert is necessary.” Laurie S. v.

Superior Court, 31 CalRptr2d 506, 510 (CalCtApp 1994). Nez’s argument also fails

to acknowledge that the circuit court gave her legal and physical custody, and she

conceded at trial that forbidding visitation “would put [C.C.] through . . . mental

stress.” Under these circumstances, we affirm the circuit court’s finding that

rupturing the connection between Clough and C.C. would be extremely harmful and

detrimental to C.C.’s welfare.

[¶19.] Nez next contends that a number of the circuit court’s statements

reflect that it did not place the burden on Clough to prove that a denial of visitation

would result in serious detriment to C.C.; rather, the court incorrectly assumed that

visitation would be in C.C.’s best interest. For example, Nez points out that at the

beginning of trial, the court stated:

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And the question is, can somebody establish to me that the child
will not be harmed by the sudden and arbitrary—seemingly
arbitrary decision that you can never see the person you have
regarded as your father for three (sic) years?

We note, however, that the court’s question was rhetorical and clearly linked to the

undisputed factual circumstance that the child had formed a parental relationship

with Clough because he, rather than Nez, had provided the child’s care and support

for her entire life. Consequently, when viewed in context, it is apparent that the

court did not make improper assumptions or apply improper burdens. Indeed,

immediately after making this statement, the circuit court clearly expressed its

correct understanding of the proper allocation of burdens of proof that it was going

to apply at trial. Immediately after the foregoing statement, the following exchange

occurred:

Nez’s counsel: “Clough . . . has the burden of showing extraordinary
circumstances[.]”
The court: “I agree.”
Nez’s counsel: “That’s where we’re at.”
The court: “I agree absolutely.”

[¶20.] Nez also notes that after Clough testified (and before Nez testified), the

court stated: “And the question is, she’s grown up with [Clough as] her daddy. And

you know, you got a mountain to climb to get me to cold terminate any contact that

he’s going to have with the child under those circumstances.” The court further

stated before Nez testified: “Somebody is going to have to show me, given the

history we have, as to why I should terminate his relationship with the child. And I

can’t think of a reason at this point.” Again, however, these statements were

expressly qualified by the “history” and “circumstances” of Clough’s bonded

relationship and Nez’s undisputed failure to support or care for her child, which

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rebutted the presumption of parental fitness. See SDCL 19-11-1 (Rule 301)

(providing that when substantial, credible evidence has been introduced to rebut a

presumption, it shall disappear from the action or proceeding). Therefore, under

the undisputed circumstances and history of this case, Clough had satisfied his

burden of rebutting the parental presumption, and the circuit court appropriately

began to focus on the best interests of the child. For the same reason, the circuit

court’s statements do not indicate that it failed to follow the constitutional and

statutory presumptions and burden of proof applicable in such cases. 7

[¶21.] Nez next argues the circuit court gave no deference or special weight to

her determination that it was in C.C.’s best interests to deny or limit Clough’s

visitation. See Troxel, 530 US 57, 120 SCt at 2062, in which the Supreme Court

required that a trial court “must accord at least some special weight to the parent’s

7. Nez argues the circuit court made other statements indicating that it
misplaced the burden when it ruled from the bench. When ruling, the court
stated:

We come to the position . . . that for virtually four years, [C.C] is
raised by the person she believes to be her father . . . . [H]e
filled the role and that is the factor that is of concern to me. I
cannot conceive of any way that terminating that role is of
benefit to [C.C.].

The court also stated:

My findings of fact are this: number one, that [Nez] [is] the
mother. Number two [Clough] [is] not the father. Number
three, [Clough] [has] acted in the parental role for virtually all of
the child’s life. There is no evidence before me that that role
was harmful to the child[.]”

(continued . . .)

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own determination.” See also Medearis, 2005 SD 42, ¶22, 695 NW2d at 232, in

which this Court acknowledged Troxel’s holding that “some ‘special weight’ must be

given the parent’s own determination.” Nez points out there was no contention that

she was an unfit parent, and therefore, her determination concerning Clough’s

visitation should have been given deference and special weight.

[¶22.] Nez’s argument is misplaced under the facts of this case. Although

the special weight and presumption discussed in Troxel and Medearis is applicable

in situations involving a fit parent, the presumption disappears in situations where

there are also extraordinary circumstances rebutting that parent’s presumptive

right to make custody/visitation decisions with respect to his or her child. The

language of Troxel clearly reflects that a fit parent is entitled to that deference only

when there are no extraordinary circumstances. When, however, as in this case, a

parent fails to care for his or her child, extraordinary circumstances exist and the

presumption disappears:

The law’s concept of the family rests on a presumption that
parents possess what a child lacks in maturity, experience, and
capacity for judgment required for making life’s difficult
decisions. More important, historically it has recognized that
natural bonds of affection lead parents to act in the best
interests of their children.

Accordingly, so long as a parent adequately cares for his or her
children (i.e., is fit), there will normally be no reason for the
State to inject itself into the private realm of the family to
further question the ability of that parent to make the best

_____________________
(. . . continued)
Like the statements discussed above, Clough’s burden of rebutting the
parental presumption had been satisfied, and when viewed in context, the
circuit court was correctly focusing on the best interests of the child.

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decisions concerning the rearing of that parent’s children.

Troxel, 530 US at 68-69, 120 SCt at 2061 (citing Parnham v. J.R., 442 US 584, 602,

99 SCt 2493, 2504, 61 LE2d 101 (alternations in original)). Therefore, deference

and special weight must be given only when a fit parent has adequately cared for

his or her children, i.e., when no extraordinary circumstances apply. When

extraordinary circumstances have been shown, the presumption disappears. See

SDCL 19-11-1 (Rule 301).

[¶23.] We have recognized this qualification in both visitation and custody

contexts. After discussing the usual prerequisite of unfitness required to rebut the

presumption in custody proceedings, we explicitly noted that “extraordinary

circumstances affecting the welfare of the children can . . . operate to defeat the

custody preference of a parent.” In re Guardianship of Sedelmeier, 491 NW2d 86,

88 (SD 1992). And, in the visitation context, we have noted that “[i]n order to grant

a nonparent visitation rights with a minor child over the objections of a parent, a

clear showing of gross misconduct, unfitness, or other extraordinary circumstances

affecting the welfare of the child is required.” D.M.K., 1996 SD 144, ¶46, 557 NW2d

at 243 (emphasis added). Therefore, although Nez started with a parental

presumption requiring deference and special weight to her decisions, that deference

disappeared once Clough established the extraordinary circumstance that Nez had

effectively never cared for or supported her child. Under those circumstances, Nez

was no longer entitled to the special deference normally afforded a fit parent, and

the circuit court’s focus on the best interests of the child was appropriate.

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[¶24.] Nez also fails to acknowledge that the circuit court had serious

questions about Nez’s credibility. Although her testimony about Clough’s fitness

and Nez’s wishes regarding visitation would ordinarily raise concerns, the circuit

court rejected these concerns expressly finding that Nez’s assertions regarding

Clough “raise serious questions about [Nez’s] credibility and clearly indicate a

willingness to ‘stretch the truth’ if necessary.” Nez argues that this finding is

erroneous because the court based its finding on counsel’s cross-examination of

Clough regarding Clough’s alleged criminal history -- allegations Nez could not

prove at trial. 8 Nez argues that “questions by counsel are certainly no evidence at

all as to his client’s credibility as a witness.” Counsel’s questions are not, however,

the extent of the record regarding Nez’s lack of credibility.

[¶25.] In Nez’s pro-se answer to Clough’s complaint, which she signed, she

made the same or equivalent allegations as those involved in cross-examination.

Those allegations seriously and adversely reflected on Nez’s credibility.

Furthermore, regardless of Nez’s credibility, the circuit court effectively deferred to

Nez’s determination of appropriate visitation because the court awarded Clough the

8. The court found:

During the course of the trial, [Clough] was repeatedly questioned
about voluntary commitments, criminal offenses in other states,
protection orders against him, and the like. Those questions, upon
review of medical and criminal records, were without meaningful
factual basis and [Clough’s] responses to those questions were candid
and proven correct. There is no reason to seriously question his
credibility, though the court must always be alert for the warping of
memory and observations by the emotional prism associated with
domestic/custody disputes.

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roughly equivalent amount of visitation that Nez deemed appropriate absent a

court order.

[¶26.] Nez finally argues that the circuit court erred in considering the effect

of the termination of contact between Clough and C.C., claiming that she never

testified she would completely terminate all visitations between C.C. and Clough.

At the beginning of the trial, however, Nez’s counsel specifically informed the court

that Nez objected to “any legally enforceable rights of visitation.” Concededly,

during trial, Nez testified:

Q: If the court does not give [Clough] legal enforceable
visitation rights, would you do it – do you intend to allow
[Clough] to have some contact and visitations with [C.C.]?
A: Yes.
Q: Under what circumstances?
A: Nothing a lot. I was just thinking like one weekend a
month. That type of deal. One week in the summer.

But, Nez ultimately clarified:

Q: You want to make that decision rather than the court?
A: Yes.

And, at oral argument Nez’s counsel reiterated, “[t]he issue here is who’s going to

make the decision, a fit parent or the court?” Counsel was then asked by this Court:

“So . . . she’d be coming to the South Dakota Supreme Court even if the judge had

awarded him one day a year, she’d still be here on principal saying, I want to decide

when . . . .” Counsel replied, “That very well may be the case.” Thus, the record

does not support Nez’s argument that no court order was necessary to facilitate

visitation with the only parent C.C. has ever known. We affirm the circuit court's

order of visitation.

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#24675, #24677

Notice of Review: Clough’s Request for Custody

[¶27.] By notice of review, Clough appeals the circuit court’s award of custody

to Nez. Clough argues that under the best interest test, he should be awarded

custody. Clough points out that under the paternity acknowledgment signed by

both parties, he is the presumptive father. Because Nez did not challenge paternity

within the time allowed by the statute of limitations,9 and because Clough contends

the statute is constitutional, he argues the DNA test was improper. Absent the

DNA test, Clough argues he is the presumptive father who, under the

acknowledgment of paternity, is entitled to seek custody under the lesser best

interest test. Clough requests a remand for a new custody determination in his

favor based solely on C.C.’s best interests.

[¶28.] At the beginning of trial, however, Clough expressly withdrew his

request for custody of C.C. And, at the conclusion of the trial, he neither requested

the circuit court to award custody nor proposed findings and conclusions requesting

such an award. Because Clough did not seek custody at trial, he may not raise the

issue for the first time on appeal. See Action Mech., Inc. v. Deadwood Historic Pres.

9. SDCL 25-8-59 provides in relevant part:

Any action contesting a rebuttable presumption of paternity . . . shall
be commenced in circuit court either sixty days after the creation of the
presumption of paternity or the date of any administrative or judicial
proceedings relating to the child including proceedings to establish a
support obligation[.]

(Emphasis added.) Therefore, in this case, Nez was required to commence
an action to challenge Clough’s paternity within sixty days of June 10, 2003.

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#24675, #24677

Comm’n, 2002 SD 121, ¶50, 652 NW2d 742, 755 (providing, “[a]n issue not raised at

the trial court level cannot be raised for the first time on appeal”).

[¶29.] Affirmed.

[¶30.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and

MEIERHENRY, Justices, concur.

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