(dissenting).
The majority writer states: “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.” Supra at page 233. And yet, the majority writing totally fails to identify even one of the trial court’s sixteen findings of fact which it believes to be clearly erroneous. In the absence of clearly erroneous findings, it is inappropriate to find that the trial court has abused its discretion. Therefore, I dissent.
The parties agree that a trial court must consider the best interests of the child in granting or denying his removal from South Dakota and they refer this court to In re Ehlen, 303 N.W.2d 808 (S.D.1981). Stephanie argues, and would have this court adopt, a presumption that removal of the child is in the child’s best interests unless it is proven by the noncustodial parent that removal is not in the child’s best interest. See Auge v. Auge, 334 N.W.2d 393, 397 (Minn.1983). Stephanie’s cleverly written brief has apparently fooled, or at least confused, the majority writer, for in this state, it is not Lee’s burden to show it is in Trevor’s best interests to remain in South Dakota.
In Ehlen, we adopted the view of a majority of the states 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. Clearly, under our settled law, *234the burden is on the custodial parent, Stephanie, to show that a proposed move is “consistent with the best interests of the child.” *
The trial court found in Finding of Fact XVI that “Stephanie may have compelling reasons to move from South Dakota, but there is absolutely no evidence that such a move is consistent with the best interests of Trevor and, in fact, such a move would disrupt the continuity, stability and good home environment which the law demands for children.” As noted earlier, the majority writer has not determined this finding to be clearly erroneous. Further, a review of the record convinces me that, other than Stephanie’s repeated assertions, there is no evidence to support Stephanie’s assertion that this proposed move is in the best interests of Trevor. Finding XVI, and the others as well, are not clearly erroneous.
I also dissent from the majority writing which finds it “telling” that the party contesting a removal of a child by the custodial parent did not seek a change in custody, and goes on to see in this “an indication that he lacks concern that a move would prejudice his son’s welfare.” This language in effect tells a contesting noncustodial parent that he must seek a change in custody if he wishes to effectively contest removal by the custodial parent. Such a requirement unnecessarily complicates and aggravates an already emotional issue.
The trial court did not abuse its discretion and should be affirmed. ■
The Ehlen court was called upon to interpret SDCL 25-5-13, which stated then, as it does now, that “[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.” This statute has never been interpreted to place the burden of proof on the non-custodial parent. Indeed, when a child is concerned, regardless of the context of the proceeding, the one seeking a change from the status quo has the burden to show the change is in the best interests of the child. See e.g. SDCL 26-11-4 (juvenile proceedings not conducted in adult court unless party seeking change justifies the transfer); SDCL ch. 26-8A-2 (children are best left with parents unless party seeking change justifies termination of parental rights); SDCL 25-7A-22 (child support payments not modified unless party seeking change justifies modification) and SDCL 25-4-45 (in non-stipulated custody agreements, custody of child not changed unless party seeking change justifies modification).