Best-Interests Check Required for No-Contact Provisions in Domestic Abuse Protection Orders Involving Children; Laser Targeting Can Establish “Fear of Imminent Harm” under SDCL 25-10

Best-Interests Check Required for No-Contact Provisions in Domestic Abuse Protection Orders Involving Children; Laser Targeting Can Establish “Fear of Imminent Harm” under SDCL 25-10

Case: Wagner v. Tovar, 2025 S.D. 44 (S.D. Aug. 6, 2025)

Court: Supreme Court of South Dakota

Disposition: Affirmed in part and reversed in part; remanded with directions

Introduction

In Wagner v. Tovar, the Supreme Court of South Dakota clarified two important points at the intersection of domestic protection orders and parent–child contact. First, it affirmed that directing a laser onto a partner and child—even when the firearm itself is not visible—can constitute “domestic abuse” by inflicting a reasonable fear of imminent physical harm under SDCL 25-10-1. Second, when a protection order includes minor children, a trial court may not impose a blanket no-contact provision for the full term without analyzing and making findings on the best interests of the children and considering viable supervised visitation; failure to do so is an abuse of discretion.

The case arose from a tumultuous domestic relationship between petitioner-appellee, Kylea Wagner, and respondent-appellant, Rigo Tovar. After a series of incidents culminating in a January 2024 “laser targeting” episode and a May 2024 confrontation at a park, the circuit court issued a five-year permanent domestic protection order covering Wagner and the parties’ two minor children, with no contact permitted. On appeal, the Supreme Court upheld the finding of domestic abuse and the five-year duration but reversed the no-contact provision as to the children, directing the court to craft appropriate, workable supervised visitation consistent with the children’s best interests.

Summary of the Opinion

  • Domestic abuse finding affirmed: The Court held that, by a preponderance of the evidence, Tovar’s conduct on January 14, 2024—projecting a red laser through the family’s front window onto his son’s chest and then onto Wagner’s chest and forehead—inflicted fear of imminent physical harm on Wagner and the child, constituting “domestic abuse” under SDCL 25-10-1. It was reasonable for Wagner to believe the laser was associated with Tovar’s firearm, given the known presence of a pistol equipped with a laser sight and prior handling of sighting equipment.
  • Five-year duration upheld: The Court held that the five-year term was within the statutory limit of SDCL 25-10-5 and not an abuse of discretion, given the nature of the conduct and the contextual history presented.
  • No-contact with children reversed: The Court found an abuse of discretion where the circuit court imposed a five-year no-contact prohibition with the children without conducting a best-interests analysis, especially when both parties sought supervised visitation and asked for a workable solution. The case was remanded with instructions to amend the protection order to provide appropriate contact or visitation consistent with the children’s best interests.
  • Context evidence permitted: The Court approved the trial court’s consideration of earlier incidents as contextual background to assess imminence and reasonableness of fear, while clarifying that the order rested on the incidents alleged in the petition.

Analysis

Statutory Framework and Standards

  • Domestic abuse definition (SDCL 25-10-1): Includes “physical harm, bodily injury, or attempts to cause physical harm or bodily injury, or the infliction of fear of imminent physical harm or bodily injury” in qualifying domestic relationships under SDCL 25-10-3.1.
  • Eligibility and relief: Persons in qualifying relationships (e.g., significant romantic partners within 12 months; parents of common children) may seek protection orders. Relief must be for a fixed period not exceeding five years (SDCL 25-10-5).
  • Burden and review: The petitioner must prove domestic abuse by a preponderance of the evidence (SDCL 25-10-5). Appellate review follows injunction standards: factual findings are reviewed for clear error; ultimate grant/denial and scope for abuse of discretion.

Precedents Cited and Their Influence

  • White v. Bain, 2008 S.D. 52; Schaefer v. Liechti, 2006 S.D. 19: Establish the standard that protection orders are reviewed akin to injunctions—first for clearly erroneous findings, then for abuse of discretion. This framework guided the Court’s two-step analysis here.
  • Altman v. Rumbolz, 2002 S.D. 79; Sjomeling v. Stuber, 2000 S.D. 103: Clarify that an abuse of discretion can be a legal error or a decision against reason and evidence. The Court used this to characterize the lower court’s blanket no-contact ruling as an abuse of discretion.
  • Wolt v. Wolt, 778 N.W.2d 802 (N.D. 2010): Persuasive authority recognizing that past abusive behavior and the relationship’s context are relevant in evaluating whether domestic violence is actual or imminent. This supported using the December 2023 and May 2024 incidents to contextualize the January 2024 laser incident.
  • Wasilk v. Wasilk, 2024 S.D. 79: Reiterates that the best interests of the child are the “unremitting principle” in visitation decisions. This precedent underpinned the reversal of the five-year no-contact provision that lacked a best-interests analysis and ignored both parties’ willingness to pursue supervised visitation.

Legal Reasoning

The Supreme Court anchored its affirmance on the credibility determinations and factual findings of the circuit court. The trial judge expressly found Wagner to be credible and detailed; those findings are entitled to deference unless clearly erroneous. From that vantage point:

  • Laser targeting as domestic abuse: The circuit court credited Wagner’s account that a red laser was projected onto her child and then onto her person. Given Tovar’s admitted possession of a pistol equipped with a laser sight, and his recent handling of sighting equipment for an AR-15, the court concluded it was reasonable for Wagner to experience imminent fear of physical harm. The Supreme Court held that these findings were supported by the record and were not clearly erroneous.
    • Significantly, the Court did not require that a firearm be visibly present or brandished. The projection of the laser, in context, sufficed to inflict reasonable fear of imminent harm.
  • Contextual evidence: While the circuit court limited its ultimate ruling to incidents alleged in the petition, it permissibly considered earlier events (December 2023 alcohol use and sighting equipment; May 2024 park confrontation) to assess the reasonableness of the perceived threat. Reliance on Wolt v. Wolt underscores that context and relationship history inform imminence and fear.
  • Including children within the order: The circuit court believed it did not need separate, individualized threats against each protected party when the conduct reasonably threatened the family unit. The Supreme Court did not disturb this approach, effectively recognizing that a single course of conduct can justify extending protection to minor children in the household when the conduct implicates their safety or inflicts fear upon them.
  • Duration: The five-year duration is expressly permitted by SDCL 25-10-5 and was supported by the evidence. The Court found no abuse of discretion in the length of the order.
  • No-contact with children and the best-interests mandate: The central reversible error was the trial court’s failure to conduct any best-interests analysis before imposing a five-year, absolute no-contact bar between Tovar and his children, despite both parties’ requests for supervised visitation and the trial court’s own recognition that a modification could be crafted. The Supreme Court emphasized:
    • Visitation decisions must be guided by the best interests of the child (Wasilk).
    • A protection order cannot be used to institute a de facto termination or five-year suspension of parent–child contact without the requisite best-interests findings and consideration of practical, viable supervision arrangements.
    • Practical obstacles (e.g., a chosen facility’s policy) cannot substitute for judicial tailoring of appropriate supervised contact. The court must explore viable alternatives or craft conditions that permit safe contact consistent with the children’s welfare.

Impact and Practical Implications

Wagner v. Tovar will likely shape domestic protection order practice across South Dakota in several concrete ways:

  • Laser targeting recognized as actionable abuse: The decision confirms that laser projection—especially where associated with known firearm optics—can reasonably inflict fear of imminent harm under SDCL 25-10-1. Petitioners need not show a gun was visible; context and reasonable inference matter. Respondents should be aware that even non-visible weaponization tactics can support protection orders.
  • Mandatory best-interests analysis for child no-contact: Trial courts must explicitly address the best interests of minor children before imposing no-contact provisions that disrupt parent–child relationships. Orders should:
    • Evaluate whether supervised contact can safely preserve the parent–child bond;
    • Consider parties’ proposals for supervision and problems of availability (and avoid allowing facility policies to dictate judicial outcomes);
    • Document findings showing why lesser restrictions (e.g., supervised visitation, monitored exchanges, third-party supervisors, or detailed safety conditions) are insufficient before imposing complete no-contact.
  • Tailoring and flexibility: Protection orders involving children should be crafted to include workable visitation modalities—such as third-party supervision, professional supervisors other than a single facility, remote/video contact when in-person contact is temporarily unworkable, and conditions addressing safety concerns (e.g., firearm relinquishment, no weapons at visits, public locations, time/place limits).
  • Deference to credibility; context matters: Appellate courts will continue to defer to trial courts on credibility and factual inferences. Practitioners should build a record with detailed incident descriptions, corroborating exhibits (photos, recordings), and context to meet the preponderance standard.
  • Five-year orders remain viable: Where the evidence supports an ongoing risk, courts retain discretion to issue protection orders for the full statutory period, even while separately accommodating supervised parent–child contact consistent with child welfare.

Complex Concepts Simplified

  • Preponderance of the evidence: The petitioner must show it is more likely than not that domestic abuse occurred. This is a lower threshold than “beyond a reasonable doubt.”
  • Domestic abuse under SDCL 25-10-1: Includes not only physical harm but also making someone reasonably fear they are about to be harmed (imminent physical harm). Threats inferred from conduct (e.g., laser targeting) can qualify.
  • Clearly erroneous standard: Appellate courts accept the trial court’s factual findings unless, after reviewing the record, the appellate court is left with a firm conviction a mistake was made. Credibility determinations are given great deference.
  • Abuse of discretion: Occurs when a court makes a legal error or renders a decision lacking a sound basis in fact or reason—such as imposing a sweeping no-contact rule without analyzing a child’s best interests or viable alternatives.
  • Best interests of the child: The governing principle for visitation decisions. Courts consider safety, emotional and developmental needs, the importance of maintaining parental bonds when safe, and whether conditions (like supervision) can mitigate risks.
  • Injunctive nature of protection orders: Protection orders are a form of injunction; they restrain conduct and can exclude a person from contact or premises for a set period. This is why appellate review uses injunction standards.

Conclusion

Wagner v. Tovar is a significant refinement of South Dakota protection-order jurisprudence. It confirms that the infliction of a reasonable fear of imminent harm can be established by laser targeting in the domestic context, even absent a visible firearm, and it underscores that lengthy protection orders (up to five years) are permissible when supported by the record.

Crucially, however, the decision erects a clear guardrail when minor children are included: trial courts must conduct a best-interests analysis before imposing no-contact provisions that sever parent–child contact, and they must consider and tailor feasible supervised visitation or other conditions that protect safety while preserving familial bonds when appropriate. The Supreme Court’s remand directive to provide “appropriate contact and visitation” consistent with the children’s best interests signals that protection orders and visitation rights are not mutually exclusive; rather, they must be harmonized through careful, reasoned tailoring responsive to the facts, risks, and developmental needs of the children.

The key takeaways are straightforward:

  • Laser-based threats can satisfy SDCL 25-10-1’s “fear of imminent physical harm.”
  • Context and relationship history are relevant to assessing imminence and fear.
  • Five-year protection orders are within statutory discretion when supported by evidence.
  • Blanket no-contact with children, without best-interests findings and consideration of supervised visitation, is an abuse of discretion.

Going forward, South Dakota courts and practitioners should ensure the record addresses child welfare factors and feasible safety conditions whenever minor children are encompassed within domestic protection orders.

Case Details

Year: 2025
Court: Supreme Court of South Dakota

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