dissenting.
And so — it is not by the fruits that you shall know them nor be judged — but rather — their words of promise in the future?
*306MOTHER
♦ Did not want the child baptized.
♦ Did not attend church.
♦ Wanted child to choose a religion, years hence.
♦ Arbitrarily, and repeatedly, denied visitation of the little girl.
♦ Had sexual relationship(s) at her abode, child in the home; expressed this was acceptable conduct.
♦ Has moved twice since the parties’ separation.
♦ Admitted to sexual liaisons, under oath, when child was in her custody.
♦ Admitted to lying to the child concerning her boyfriend sleeping with her overnight.
♦ Upon learning Judge found her conduct “completely and absolutely intolerable,” signed affidavit that she would comply with Judge’s directive to change her conduct and lifestyle.
FATHER
♦ Father did.
♦ Father did and took child to church.
♦ Father thought the little girl needed religious instruction now.
♦ Always allowed mother visitation when he had the child.
♦ Heartily took exception. Mother said “Fuck you, its none of your business” and hung up phone. Transcript, page 24.
♦ Lives in same home in city of Philip, where he is Chief of Police.
♦ Requested mother on several occasions to stop this conduct.
♦ Testified little girl saw partially clad man in A.M. brushing his teeth, eating breakfast.
♦ Lost case; took appeal to this Court.
Although the trial court was creative, and sought reformation of mother, this case should be decided on precedent in this Court. Mother’s reformation is not the issue. In determining child custody, we have historically taken the position that it is the best interests of the child which must be considered. Isaak v. Isaak, 278 N.W.2d 445 (S.D.1979). Child was aware of mother’s conduct. She complained that her “mommy locked the door all the time,” when a certain boyfriend spent the night with Mommy. (Mommy’s bedroom; child could not close out the day with her Mommy). Poor little child; bad mother!
This Court has seen fit to decry this type of conduct (where child is aware of parental misdeeds), resulting from the commission of indiscretions in child’s presence. See, Spaulding v. Spaulding, 278 N.W.2d 639 (S.D.1979) and Wolff v. Wolff, 349 N.W.2d 656 (S.D.1984). Here, child complained that she had to knock on the bedroom wall because Mommy locked the door (with boyfriend therein), to attract the mother’s attention, is indicative of mother’s improper behavior. Pathetical scenario!
We decried this conduct as early as Yager v. Yager, 83 S.D. 315, 159 N.W.2d 125 (1968). We particularly were concerned with the moral concepts of the mother plus “an unsuitable environment.” In trial court’s memorandum decision, this expression is noted: “Free sex is a detriment to family stability and is to be discouraged.” In point of procedural truth, trial court entered Findings of Fact and Conclusions of Law that the mother’s involvement with a certain male companion, under the same roof as the child, was not in the best interests of the child. Therefore, it appears to be an abuse of discretion by the trial court to not change the custody of the little girl from mother to father. Perforce, I must dissent. Heaven is about us in our infancy and, as infants, having no past or future, the present should be there to enjoy and experience. Life was anything but pleasure or wholesome for this little child.
Mother has been moving about; father stays rooted in his home and vocational calling. In Anderson v. Anderson, 472 N.W.2d 519 (S.D.1991) written by our im*307mediate past Chief Justice, a majority of this Court looked unkindly upon a transient lifestyle. In Anderson, mother was not permitted to have custody because, further, she permitted men to sleep at her residence while the children were in the household.
Old but true: like cases should be treated alike. I’m stare decisis all the way. Creative judgment? Yes, indeed. Compassionate treatment of mother? Very definitely. But in the best interests of this little girl? In my opinion, no.
If father were awarded custody, mother has an opportunity to concentrate upon, and to rectify, her inappropriate behavior. She could, in the future, come to the trial judge, and plead with His Honor: “Judge, I’ve changed.” Procedurally, she could proceed with an Order to Show Cause. But that is down the road to be seen and proven in a court of law. An affidavit that I will be a good Mommy at this juncture does not measure up against the pre-di-vorce performance and stability of the father. In essence, the case should be decided upon past deeds and conditions, not upon a promise to be good in an affidavit.
Father would be awarded $1,000.00 appellate attorney’s fees under my thesis. Mother would be awarded naught as she is the losing litigant.