(dissenting).
I would reverse.
If reasons ever existed for awarding the children to defendant-father, as this court held in Masek v. Masek, 89 S.D. 62, 228 N.W.2d 334, then as I read the instant record those reasons no longer exist.1
The requirement that a substantial or material change of circumstances be demonstrated before a court may modify a custody order is a judicially created rule of expediency rather than a statutory requirement. Huckfeldt v. Huckfeldt, 82 S.D. *8344, 146 N.W.2d 57.2 Although the rule is based upon pragmatic, practical reasons, well expressed in the majority opinion herein and in the Huckfeldt case, it should be applied to aid trial courts in carrying out their statutory duty to provide for the best interests of the child, SDCL 30-27-19(1), and should not be allowed to create a mechanistic barrier to fustrate the performance of that duty.
SDCL 30-27-19(2) provides that, other things being equal, the custody of a child of tender years should be given to the mother. Although “other things” may not have been equal at the time custody was awarded defendant-father, and I acknowledge that I am bound by the majority opinion in Masek v. Masek, supra, the conditions that caused that imbalance in the capacity of the parties to provide for the best interests of the children have, in my opinion at least, so ameliorated that plaintiff now stands on at least an equal plane with defendant-father with respect to her capacity to care for the children. I would apply the “substantial or material change” rule in the light of SDCL 30-27-19(2) by holding that when a mother has demonstrated that she is at least as capable of caring for her children as is the father she has satisfied our judicially created test. By so applying the rule, trial courts can honor both legislatively expressed concerns set forth in SDCL 30-27-19 and also effectuate the purposes which the rule was adopted to achieve. To attain a position of parity vis-a-vis the other parent is a substantial, material change in circumstances.
A number of factors must be considered in determining whether things are equal between the parties. Of course, minor children should not be subjected to a shuttlecock existence. Nor should the courts allow them to be used as pawns in a vindictive battle between the parties to a failed marriage. Certainly the trial court should consider the possible adverse effects a change of custody might have upon the child or children, taking into account whether the change will drastically upset established liv*9ing patterns of some duration or will entail relocation to new and unfamiliar surroundings.
In the instant case the evidence reveals that plaintiff spends a good deal of time with her children in their home while defendant is at work; plaintiff estimated that the hours she spends with them would total two-plus days a week. Indeed, it could be said that plaintiff spends more living time with the children than does defendant. There is nothing in the record to indicate that plaintiff would do anything but continue to reside in the city of Sioux Falls and continue her career as a mother and part-time college music instructor. Thus the specter of an interstate, Wellnitz v. Wellnitz, 71 S.D. 430, 25 N.W.2d 458, transcontinental, Warder v. Warder, 87 S.D. 133, 203 N.W.2d 531, or intercontinental, Bolenbaugh v. Bolenbaugh, 89 S.D. 639, 237 N.W.2d 12, disruption is not a consideration here.
Because the record convinces me that plaintiff desires custody for the sole purpose of providing for the welfare of her children and that she is at least as capable of caring for them as is defendant, I would reverse the order denying the petition for change of custody and would direct the trial court to award custody of the children to plaintiff.
I am authorized to state that COLER, J., joins in this dissent.. Perhaps it is time to reexamine our rule that findings of fact are not necessary to support an order issued in proceedings to modify the child custody provisions of a divorce decree, see SDCL 15-6-52(a) and , e.g., Millea v. Millea, — S.D. — , 229 N.W.2d 95; Christensen v. Christensen, 85 S.D. 653, 190 N.W.2d 62; Weins v. Weins, 70 S.D. 620, 20 N.W.2d 228; Foster v. Foster, 66 S.D. 395, 284 N.W. 54, and to impose a requirement that findings be made, at least in those cases where the trial court takes testimony in support of affidavits and exhibits.
. We have stated the rule in the disjunctive, Wellnitz v. Wellnitz, 71 S.D. 430, 25 N.W.2d 458; in the conjunctive, Hershey v. Hershey, 85 S.D. 85, 177 N.W.2d 267; and sometimes both ways in the same case. Huckfeldt v. Huckfeldt, supra. The words “substantial” and “material” may be tautological in the sense in which they are used in the rule.