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TERRY M. BERENS,
Plaintiff and Appellee,
v.
CRISTI J. BERENS,

Defendant and Appellant.

[2004 SD 121]
South Dakota Supreme Court
Appeal from the Circuit Court of
The Second Judicial Circuit
Lincoln County, South Dakota

Hon. Stuart L. Tiede, Judge

THOMAS H. FRIEBERG
DREW C. DUNCAN of
Frieberg, Zimmer, Duncan & Nelson
Beresford, South Dakota
Attorneys for plaintiff and appellee.

CAITLIN F. COLLIER
Vermillion, South Dakota
Attorney for defendant and appellant.

Argued on August 25, 2004
Opinion Filed 11/3/2004

#23063
MEIERHENRY, Justice
[¶ 1.] This case involves a custody dispute. The trial court awarded joint legal custody to both parents and physical custody to the father. Mother appeals. She claims the trial court abused its discretion by not appropriately considering the factors previously required by this Court. Specifically, she claims the trial court erred (1) by not considering father’s alleged domestic violence against mother and daughter, (2) by not giving greater weight to father’s mental and physical health and illiteracy, (3) by giving too much weight to the children’s need for access to extended family. She also claims the trial court erred by conditionally awarding custody to mother if she returns to South Dakota.
FACTS
[¶ 2.] The parties, Cristi and Terry Berens, were married in 1993 and have two children, a son age eleven and a daughter age seven. Cristi decided to start divorce proceedings in December of 2001. Upon learning of Cristi’s intentions, Terry became very emotionally upset and threatened suicide. Cristi called the police and Terry was placed on a 24 hour psychiatric hold. After the parties separated in late December, Cristi retained physical custody of the children; Terry had visitation rights. Shortly thereafter, Cristi sought protection orders against Terry. The first protection order was issued ex parte and later dismissed by Cristi in early January 2002. Cristi sought a second protection order in March of 2002, which the court heard and denied. In April of 2002, Cristi sought a third protection order. The trial court granted an ex parte temporary order. This time she alleged Terry had sexually abused the daughter. Cristi claimed that the daughter had told her that Terry had been touching her “privates.

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