Specific Evidence, Not Generalized Religious Fears: Jessop v. Combs and Unsupervised Parenting Time in the Shadow of Alleged FLDS Ties

I. Introduction

The South Dakota Supreme Court’s decision in Jessop v. Combs, 2025 S.D. 71, arises from a contentious custody and parenting-time dispute colored by allegations of religious extremism, sexual assault, and potential child abduction.

Brian Jessop (father) and Lisa Combs (mother) are the unmarried parents of one child, B.J.J. After their relationship ended, Lisa relocated with the child from Utah to South Dakota and limited Brian to supervised contact. Brian petitioned for parenting time under the South Dakota Parenting Guidelines, while Lisa sought sole legal and physical custody, limited contact for Brian, and strong restrictions grounded largely in:

Alleged ties between Brian and the Fundamentalist Church of Jesus Christ of Latter-Day Saints (FLDS), a group with a documented history of abusive practices and child abductions in some cases; and
An allegation that Brian raped Lisa, which, if found true, would trigger a statutory presumption against his visitation under SDCL 25-4A-20.

After a bench trial, the circuit court found Lisa not credible on the rape allegation, rejected the claim that Brian is a current FLDS member or follower, awarded joint legal custody, primary physical custody to Lisa, and unsupervised parenting time to Brian under the Parenting Guidelines, with a brief transition plan due to the child’s age. Lisa appealed.

The Supreme Court affirmed on all issues, addressing four key questions:

Whether the circuit court abused its discretion in denying Lisa’s last-minute motion to continue the trial to secure testimony from an unavailable FLDS investigator (Sam Brower).
Whether Amber (Brian’s wife) should have been barred from testifying as a rebuttal witness due to an alleged violation of a sequestration order.
Whether the findings that Brian is not a current FLDS follower and did not rape Lisa were clearly erroneous, thereby undermining the best-interests determination and the grant of unsupervised parenting time.
Whether the court abused its discretion in denying attorney fees at trial and on appeal.

The decision does not announce a brand-new doctrinal test; rather, it illustrates and refines several important principles:

Continuances based on unavailable witnesses require a concrete showing of materiality and diligence.
Violations of sequestration orders justify relief only if actual prejudice is demonstrated.
Custody and visitation restrictions must rest on specific, credible evidence about the individual parent’s conduct and beliefs, not generalized condemnation of a religious group.
The rape-based presumption against visitation in SDCL 25-4A-20 is triggered only when the court actually finds that a rape occurred.
Attorney fees in custody actions remain a narrow, discretionary remedy, both at trial and on appeal.

II. Summary of the Opinion

A. Factual Background

Brian and Lisa met online in 2019. Lisa moved from Rapid City to Brian’s home in Pleasant Grove, Utah, that June. Their child, B.J.J., was born in March 2020. The relationship deteriorated, and in January 2021 Lisa moved back to Rapid City with the child.

In August 2021, Brian filed an action seeking sole legal and physical custody but clarified that his real aim was regular parenting time consistent with the South Dakota Parenting Guidelines. Lisa resisted, limiting him to supervised contact (primarily video and brief supervised in-person visits) and ultimately sought:

Sole legal and physical custody of the child; and
Supervised-only or otherwise highly restricted visitation for Brian.

Lisa justified these restrictions by asserting:

Brian and his family were connected to the FLDS, which she claimed has a history of treating women and children as property, arranging underage marriages, and abducting children from non-FLDS parents; and
Brian had raped her, leading to the conception of the child, thereby invoking SDCL 25-4A-20’s presumption that visitation is not in the child’s best interests when conception results from rape.

A custody evaluator recommended primary physical custody for Lisa but parenting time for Brian consistent with the Parenting Guidelines, leaving supervision and overnights to the court.

B. Procedural Events at Trial

The two-day bench trial was set to begin June 4, 2024. The Friday before trial, Lisa moved for a continuance, citing the unavailability of “key” witness Sam Brower, a purported FLDS investigator with serious heart problems. She sought either:

A continuance; or
Permission to take a trial deposition and/or present remote testimony.

Lisa’s papers broadly asserted Brower’s testimony was “crucial” to prove FLDS-related risks, but did not:

Proffer specific anticipated testimony,
Provide a statement or report from Brower, or
Show he had been timely disclosed as an expert or that an expert report existed.

The court denied the continuance, citing the long-scheduled trial date and concerns about judging a remote witness’s credibility.

At trial, Lisa presented evidence about:

Brian’s FLDS upbringing, his polygamous father, and general FLDS practices.
Brian’s alleged adherence to FLDS teachings (e.g., photo of Warren Jeffs in their home, playing FLDS-related recordings, refusal to explicitly condemn polygamy and underage marriage).
The alleged July 1, 2019 rape, including the claim that Brian drugged her and that she was otherwise avoiding sex during ovulation.
Alleged threats by Brian to kill her and molest or rape their child.

Brian denied the rape, abuse, and threats; testified he left FLDS as a teen; has since grown facial hair, had a child out of wedlock, does not tithe, and does not practice FLDS; and lives a mainstream life in Utah with his new wife, Amber, and their child. He admitted ongoing contact with FLDS family members, notably his father.

Lisa’s father, Kent, testified he financed Lisa and the litigation and that Lisa sought to protect the child from abduction by Brian and his allegedly FLDS-connected family. Utah attorney Roger Hoole, experienced in litigating against FLDS entities, testified to FLDS patterns of control and child abduction but admitted:

He had never met Brian,
Had not observed Brian with the child, and
Had no evidence that Brian is an FLDS member.

On the second day, Amber testified as a rebuttal witness. A sequestration order had been issued at the start of trial (“witnesses testifying” were sequestered). Amber admitted she had discussed “this case or any testimony that occurred yesterday” with Brian before testifying. Lisa moved to exclude Amber’s testimony based on alleged violation of the sequestration order. The court declined, and Amber testified that:

She had been LDS but stopped attending church; and
Brian had not forced FLDS practices on her and did not practice FLDS.

C. Circuit Court’s Decision

The circuit court:

Found Lisa not credible on the alleged rape:
"[It] did 'not find Lisa's testimony regarding the conception of BJJ to be credible given the totality of the circumstances.'"
Thus, SDCL 25-4A-20’s rape-conception presumption did not apply.
Made detailed findings acknowledging:
- The FLDS’s history of treating women and children as property,
- Underage marriages arranged by the FLDS,
- Warren Jeffs’s criminal convictions, and
- Testimony about missing children and potential abductions by FLDS adherents.
Nonetheless found Brian is not a current FLDS member or follower and that:
"Brians current and past relationships, including his relationship with Lisa, having a child out of wedlock with a non-FLDS member seems to this [c]ourt, contrary to the belief that he is a practicing member of the FLDS."
It held the evidence was not “sufficient to establish that Brian does, or would follow FLDS edict.”
Applied the Fuerstenberg best-interests factors and ordered:
- Joint legal custody;
- Primary physical custody to Lisa; and
- Parenting time to Brian in accordance with the South Dakota Parenting Guidelines, with a short transition plan (continued video contact and in-person unsupervised visits in Rapid City until the child turned five).
Denied both parties’ requests for attorney fees under SDCL 15-17-38.

D. Supreme Court’s Holdings

The Supreme Court affirmed on all issues:

Continuance: No abuse of discretion. Lisa failed to show materiality of Brower’s testimony or prejudice from proceeding without him, particularly given overlapping FLDS-related testimony from other witnesses.
Sequestration: Even assuming the order applied to Amber and was violated, Lisa showed no prejudice—no evidence Amber’s testimony was changed or influenced by what she heard.
Unsupervised Parenting Time:
- The findings that Brian was not a current FLDS follower and that no rape occurred were not clearly erroneous.
- Without those findings, neither Lisa’s FLDS-based concerns nor the SDCL 25-4A-20 presumption barred unsupervised parenting time.
- The overall best-interests analysis was within the circuit court’s broad discretion.
Attorney Fees: The denial of trial fees was not an abuse of discretion. Lisa’s separate challenge to discovery-motion fees failed due to an incomplete record (no transcript of the motion hearing). Lisa’s request for appellate fees was also denied because she did not prevail on any issue.

III. Analysis

A. Precedents and Authorities Cited

1. Continuances: VOR, Inc. v. Estate of O’Farrell, People ex rel. L.N., State v. Jackson, and State v. Karlen

The Court reaffirmed the well-settled abuse-of-discretion framework for continuances (¶¶30–31).

VOR, Inc. v. Estate of O’Farrell, 2025 S.D. 2, and People ex rel. L.N., 2022 S.D. 8, reiterate that granting or denying a continuance rests in the “sound discretion” of the trial court and will not be reversed “except for the most cogent reasons.”
State v. Jackson, 2020 S.D. 53, and State v. Karlen, 1999 S.D. 12, supply a three-part test when continuance is sought to secure an unavailable witness (¶31):
1. The testimony must be material;
2. The moving party must show due diligence to secure the witness; and
3. It must be reasonably certain the witness or testimony can be obtained by the new trial date.
Tosh v. Schwab, 2007 S.D. 132, relying on State v. Moeller, 2000 S.D. 122, adds that courts may also consider prejudice to the moving party (¶31).

These precedents give structure to the Court’s rejection of Lisa’s request: her submissions lacked a specific proffer of what Brower would say about Brian or the child, and there was overlapping evidence from Hoole and Lisa herself on the general dangers of the FLDS (¶¶32–36).

2. Sequestration Orders: State v. Randle, State v. Dixon, State v. Swillie (Nebraska), and Center of Life Church v. Nelson

On alleged violations of a witness sequestration order, the Court relied on:

State v. Randle, 2018 S.D. 61: exclusion of testimony for sequestration violations is discretionary; prejudice must be shown. Prejudice exists when the witness’s testimony is “changed or been influenced by what [they] heard from other witnesses” (¶37, quoting Swillie).
State v. Dixon, 419 N.W.2d 699 (S.D. 1988): a defendant is entitled to relief only if a sequestration violation prejudiced their rights (¶37).
State v. Swillie, 357 N.W.2d 212 (Neb. 1984): provides the definition of prejudice in this context.
Center of Life Church v. Nelson, 2018 S.D. 42: affirming denial of a new trial where a sequestration violation was not shown to affect the witness’s testimony (¶38).

These authorities collectively ground the Court’s conclusion that Amber’s testimony was properly allowed: Lisa failed to demonstrate any actual influence or change in Amber’s testimony from her contact with Brian (¶38–39).

3. Best Interests and Factual Review: Fuerstenberg, Harwood, Flint, and Dunham

The heart of the case—the best-interests determination and unsupervised parenting time—is guided by:

Fuerstenberg v. Fuerstenberg, 1999 S.D. 35, 591 N.W.2d 798:
- Articulates that custody decisions hinge on the child’s “temporal, mental and moral welfare” (¶40).
- Identifies seven frequently used—but not mandatory—factors: parental fitness, stability, primary caretaker, child’s preference, harmful parental misconduct, separating siblings, and substantial change of circumstances (¶41).
- Emphasizes that credibility assessments are for the trial court (¶40, ¶52).
Harwood v. Chamley, 2023 S.D. 35, and Flint v. Flint, 2022 S.D. 27: reaffirm that while courts are not strictly required to analyze the Fuerstenberg factors, they are an “eminently practical” framework for structuring best-interest analysis (¶41).
Dunham v. Sabers, 2022 S.D. 65: restates the “clearly erroneous” standard of review for factual findings—reversal is warranted only if the appellate court is left with a “definite and firm conviction” that a mistake has been made (¶40).

These cases underpin the Court’s deferential posture toward the circuit court’s factual findings regarding Brian’s present relationship to FLDS and the alleged rape.

4. Rape-Based Visitation Presumption: SDCL 25-4A-20

SDCL 25-4A-20 creates a:

"rebuttable presumption that it is not in the best interest of the child for the court . . . to grant visitation rights to a person that the court has found . . . to have committed an act of rape . . . against the other parent that resulted in the conception of the child." (¶50, emphasis added)

The key threshold element is that “the court has found” a rape occurred. Because the circuit court expressly rejected Lisa’s rape allegations as not credible, the Supreme Court treated SDCL 25-4A-20 as inapplicable, not merely rebutted (¶¶50–52). This is an important distinction: an allegation alone does not trigger the statutory presumption; an actual factual finding of rape is required.

5. Child Abduction Prevention: SDCL 26-18-4 (UCAPA)

Lisa implicitly invoked the Uniform Child Abduction Prevention Act (UCAPA), codified at SDCL 26-18-4, which allows abduction-prevention orders where the evidence shows a “credible risk of abduction of the child” (¶49 n.5).

The Court held UCAPA did not apply because the circuit court did not find a credible risk of abduction based on the evidence. The decision reinforces that UCAPA is fact-driven: generalized concerns about a religious group’s alleged behavior are insufficient without tie-in to the particular parent and child.

6. Attorney Fees: SDCL 15-17-38, Evens, Green, Nickles, Brosnan, and Graff

The Court reaffirmed the two-step test for attorney fee awards in custody actions (¶54–55), drawing on:

Evens v. Evens, 2020 S.D. 62, and Green v. Green, 2019 S.D. 5:
1. Determine a reasonable fee based on eight factors (amount and value of property, intricacy and importance, time and labor, skill, discovery, legal complexity, trial time, and briefing).
2. Determine the necessity of a fee shift, considering parties’ relative financial circumstances and whether either unreasonably increased litigation time.
Nickles v. Nickles, 2015 S.D. 40: requires specific findings on these factors (¶54).
SDCL 15-17-38: authorizes fee awards in custody cases “if appropriate, in the interests of justice.”
Brosnan v. Brosnan, 2013 S.D. 81: for appellate fees, the Court examines whether the party’s appellate arguments “carried any merit” (¶57).
Graff v. Children’s Care Hospital and School, 2020 S.D. 26: where the record is incomplete (e.g., missing transcripts), appellate courts presume the circuit court acted properly (¶56 n.6).

These authorities support:

The denial of trial fees, based on lack of novel issues and Brian’s modest income versus Lisa’s support by her father (¶55–56).
The refusal to disturb the denial of discovery-motion fees where no transcript was provided (¶56 n.6).
The denial of appellate fees where Lisa did not prevail on any issue (¶57–58).

7. Record on Appeal and Supplemental Briefing: SDCL 15-26A-47 and 15-26A-73

Lisa attempted, via supplemental briefing under SDCL 15-26A-73, to introduce post-appeal developments—namely, Brian’s motion in the circuit court to restrain disparagement of the FLDS in parenting communications—as evidence of his alleged FLDS allegiance (¶49 n.4).

The Court declined to consider this, explaining:

SDCL 15-26A-73 is limited to “late authorities, newly enacted legislation, or other intervening matters,” not new factual assertions.
SDCL 15-26A-47 defines the appellate record as the original pleadings, papers, exhibits, and transcripts, and does not include later factual developments (¶49 n.4).

This reinforces South Dakota’s firm rule that the Supreme Court reviews the record as it existed in the trial court, not post-judgment factual developments.

B. The Court’s Legal Reasoning

1. Denial of Continuance for the Unavailable FLDS Investigator

Lisa’s continuance motion rested on the medical unavailability of Sam Brower, whom she labeled a “key witness” on FLDS issues. The Court applied the Jackson/Karlen test:

Materiality: Lisa never specified what Brower would say about Brian personally or about specific risk to the child. There was no expert report, affidavit, or detailed proffer—only conclusory statements of importance and general references to his knowledge of FLDS structure and Brian’s father (¶¶32–33).
Overlap with other evidence: Hoole’s testimony and Lisa’s own account thoroughly painted a critical picture of the FLDS. The circuit court accepted much of this, making “harsh” findings about FLDS practices (¶26, ¶34). Brower’s testimony would likely have been cumulative as to the general character of the FLDS, not uniquely material to Brian’s current practice or risk profile.
Prejudice: Given this overlap and the absence of a specific proffer, Lisa could not show she was prejudiced by proceeding without Brower (¶36). Her case against Brian’s unsupervised contact was fully presented through other witnesses.

The Supreme Court therefore found no abuse of discretion in denying a continuance requested days before trial. The ruling underscores that:

Last-minute continuances require more than assertions that a witness is “crucial”; and
Cumulative testimony about a group’s general reputation or history does not automatically satisfy materiality where the dispositive questions center on the individual parent’s current conduct and beliefs.

2. Alleged Sequestration Violation and Rebuttal Witness Testimony

The trial court had issued an oral sequestration order for “witnesses testifying.” Amber, called in rebuttal, admitted speaking with Brian about the prior day’s proceedings. Lisa sought to exclude her testimony.

The Supreme Court reasoned:

It was unclear whether the generic sequestration order even applied to rebuttal witnesses, but the Court assumed it did for argument’s sake (¶38).
Under Randle, Dixon, and Swillie, the remedy for a violation depends on demonstrated prejudice—i.e., whether the testimony was actually influenced or altered by exposure to other testimony (¶37–38).
Lisa pointed to no portion of Amber’s testimony that appeared shaped by what she had heard; she merely argued the testimony bolstered Brian’s credibility and minimized FLDS involvement (¶39).

Because Lisa failed to show Amber’s testimony had been changed or tailored as a result of the alleged violation, the Court found no prejudice, and thus no abuse of discretion in allowing the testimony (¶39).

3. FLDS Allegations and Unsupervised Parenting Time

The central substantive issue was whether Brian’s background and alleged continuing ties to the FLDS posed a sufficient risk to justify limiting his contact to supervised visitation or triggering UCAPA protections.

The circuit court’s findings present a nuanced picture:

It accepted the general evidence that the FLDS, as a group or institution, has:
- A history of treating women and children as property (¶53);
- Arranged marriages between underage girls and older men (¶54);
- A leader (Warren Jeffs) now imprisoned for abusing underage girls (¶55); and
- Allegations of missing children and potential abduction from non-FLDS parents (¶56).
It also found that Brian:
- Was raised in an FLDS family (¶59);
- Has a father who practices plural marriage and remains an FLDS member (¶58); and
- Maintains contact with FLDS family members (¶60).
However, it found that Brian:
- Left FLDS practices as a teenager (¶67);
- Lives in a mainstream environment, with a non-FLDS spouse who works full-time (¶14, ¶24);
- Has grown facial hair, had a child out of wedlock with a non-FLDS partner, and does not tithe, all of which are inconsistent with FLDS norms (¶48, with support from Lisa’s own testimony in footnote 3); and
- Expressed no desire to engage in polygamy or FLDS religious observance (¶47–48).

Critically, the Supreme Court underscored that:

This case is not a “referendum” on the FLDS’s beliefs or practices (¶45).
It is insufficient to say: because FLDS has troubling practices and Brian’s family is FLDS, Brian should be denied unsupervised parenting time (¶45–46).
Instead, custody and visitation must be decided on individualized evidence showing that this parent’s conduct, beliefs, or affiliations presently pose a concrete risk to this child (¶46–48).

Lisa’s evidence, much of it via Hoole, consisted largely of generalized stories about FLDS-induced abductions and abuse, not specific conduct by Brian. Hoole expressly lacked “independent knowledge” about any Brian-FLDS ties (¶47). The Court concluded that:

"the evidence presented did not tie Brian to the allegations relating to the FLDS." (¶48)

Given the deferential clearly-erroneous standard, the Supreme Court refused to reweigh the evidence or reassess witness credibility (¶49). The net effect is a strong reaffirmation that:

Religious background or family affiliation, even with a controversial or abusive sect, is not by itself a basis to restrict parenting time; and
Restrictions must follow from specific, credible findings about the parent’s current conduct, beliefs, and risks to the child.

4. Rape Allegation and SDCL 25-4A-20

Lisa’s rape allegation had two potential impacts:

On the merits: suggesting Brian is dangerous and supervision is necessary; and
Statutorily: invoking SDCL 25-4A-20’s presumption against visitation when a child is conceived through rape.

The circuit court rejected Lisa’s rape testimony as not credible “given the totality of the circumstances” (¶25, ¶51). It relied on:

Lisa’s failure to report the rape or seek medical care;
Her own acknowledgment of consensual sexual activity with Brian both before and after the alleged incident (¶51); and
Brian’s testimony that at the purported time of the rape they were “frequently engaging in sexual relations” (¶51).

Because credibility is within the trial court’s purview, and no clear error was shown, the Supreme Court held SDCL 25-4A-20 was never triggered:

"Here, however, the factual premise underlying the statutory presumption is not satisfied." (¶50)

In other words, absent a finding that rape actually occurred, there is no statutory presumption to apply or rebut (¶52).

This is doctrinally significant: the statute does not convert uncorroborated allegations into a presumption against visitation; courts must first make an express finding that rape occurred and that the child was conceived as a result.

5. Best-Interests Determination and Unsupervised Parenting Time

After rejecting Lisa’s two central factual predicates (ongoing FLDS adherence and rape), the Court turned to whether the overall best-interests analysis nonetheless supported unsupervised visitation.

The circuit court had:

Applied the Fuerstenberg factors (¶28);
Granted joint legal custody and primary physical custody to Lisa; and
Provided for unsupervised parenting time under the Parenting Guidelines, with a short age-based transition (¶28).

The Supreme Court, emphasizing the broad discretion of trial courts in custody matters, concluded:

There was no clear error in the findings of fact underpinning the best-interests analysis.
The decision to permit unsupervised parenting time fell “within the range of permissible choices” (¶53).

The key doctrinal point is that, where:

No credible evidence of ongoing dangerous religious practice is found; and
No finding of rape is made;

the default presumption of the Parenting Guidelines—that regular, and ultimately unsupervised, time with both parents is in the child’s best interests—will usually hold. Speculative or generalized fears will not suffice to override this framework.

6. Attorney Fees at Trial and on Appeal

Lisa argued her fees were necessary due to the case’s complexity, the FLDS issues, and Brian’s alleged “intransigence.” The Court disagreed, noting:

The dispute did not involve a novel legal issue (¶56).
The record showed Brian’s modest income and Lisa’s financial support from her father (¶56).
The trial court’s denial of fees under SDCL 15-17-38 fell within its discretion (¶56).

As to discovery-motion fees, the circuit court had summarily denied Lisa’s request after granting in part a motion to compel. Lisa argued the lack of detailed findings warranted reversal, but the Supreme Court invoked Graff:

Because the record lacked a transcript of the motion hearing, appellate review was incomplete.
In such circumstances, courts presume the trial court acted correctly (¶56 n.6).

On appeal, Lisa sought over $56,000 in appellate attorney fees. Under SDCL 15-26A-87.3 and Brosnan, the Court looks to whether appellate arguments have merit (¶57). Lisa prevailed on none of her issues, and the Court found no other basis to award fees (¶58).

C. Impact and Broader Significance

1. Custody and Religious Affiliation: Generalized Critiques vs. Specific Risk

The most important practical takeaway from Jessop v. Combs is the Court’s insistence on individualized evidence in custody cases involving allegations tied to religious groups—especially controversial or high-control communities like the FLDS.

The Court carefully:

Recognized and was willing to credit evidence that the FLDS, as an organization, has a troubling history; yet
Refused to treat that history as dispositive of Brian’s parenting unless and until credible evidence tied him personally to those practices.

This approach:

Protects against discrimination based on mere religious label or family origin; and
Ensures that constitutional values (religious neutrality) and best-interests analysis coexist: religion may be relevant only to the extent it concretely affects the child’s welfare.

Future litigants alleging risk from religious affiliation must therefore:

Produce evidence that the parent actively adheres to harmful practices;
Show that these practices realistically threaten the child’s safety or development; and
Not rely solely on general expert testimony about a faith community’s broader history or reputation.

2. Application of UCAPA in Religious-Context Disputes

By rejecting UCAPA’s application absent a “credible risk of abduction,” the Court signaled that:

UCAPA is reserved for evidence-based fears of abduction (e.g., specific threats, prior attempts, concrete flight plans), not generalized concerns from group affiliation.
Merely pointing to historical instances of abduction by other group members is insufficient without evidence this parent is inclined or able to do so.

This will shape future attempts to invoke UCAPA in cases involving communities alleged to encourage or facilitate child concealment.

3. Rape Allegations and SDCL 25-4A-20

The decision also clarifies the operation of South Dakota’s rape-based visitation presumption:

It stresses that the presumption arises only “when the court has found” that the alleged parent committed rape leading to conception (¶50).
Thus, litigants cannot rely on bare allegations to shift the burden; they must persuade the court that rape actually occurred.

This protects the seriousness of the presumption—aimed at preventing contact between a child and a parent who conceived the child through sexual violence—while ensuring basic procedural fairness and careful credibility assessment.

4. Procedural Lessons: Continuances and Sequestration

The Court’s procedural rulings send clear signals to practitioners:

Continuances for Unavailable Witnesses:
- Always make a detailed proffer of expected testimony (who, what, how it connects to dispositive issues).
- Demonstrate due diligence: timely identification, efforts to secure attendance or deposition, and why postponement will likely cure the problem.
- Explain concretely why other evidence cannot substitute, to establish materiality and prejudice.
Sequestration Orders:
- Clarify on the record whether rebuttal witnesses, experts, or party-spouses are exempt or included.
- Assume inclusion unless carved out and minimize case discussion with future witnesses.
- On appeal, be prepared to point to specific passages of testimony that appear tailored based on improper access; mere posturing or general “credibility bolstering” is not enough.

5. Attorney Fees and Access to Justice in Custody Litigation

The Court’s conservative approach to fee-shifting—both at trial and on appeal—has practical implications:

Even in emotionally complex cases with expert testimony and religious-context issues, fees will not automatically shift.
Parties with third-party financial backing (like Lisa’s father here) may be less likely to receive fee awards, especially where the opposing party has modest means.
On appeal, unsuccessful challenges to fact-intensive custody determinations will often not justify fee awards, reinforcing the importance of a realistic assessment of appellate prospects.

This stance promotes careful consideration before launching appeals that primarily attack credibility or fact findings, which are notoriously difficult to overturn.

D. Complex Concepts Simplified

1. Abuse of Discretion

A court “abuses its discretion” only when its decision:

Is based on an error of law;
Relies on clearly erroneous facts; or
Falls outside the “range of permissible choices” given the circumstances.

In Jessop, the Supreme Court repeatedly emphasized that as long as the trial court’s choices were reasonable and grounded in evidence, it would not substitute its judgment.

2. Clearly Erroneous Standard

When reviewing factual findings, appellate courts ask:

Does the record support the finding?
Are we left with a “definite and firm conviction” that a mistake occurred?

If not, the finding stands—even if another judge might have weighed the evidence differently. This is why the Court upheld the findings that Brian is not a current FLDS follower and that no rape occurred; the evidence supported the trial court, and credibility determinations belong to that court, not the appellate bench.

3. Rebuttable Presumption (SDCL 25-4A-20)

A “rebuttable presumption” is a legal rule that:

Assumes a certain conclusion once a basic fact is found (here, that visitation is not in a child’s best interests if the child was conceived via rape);
But allows the affected party to offer evidence to counter or “rebut” that assumed conclusion.

Crucially, in SDCL 25-4A-20, the presumption only starts if the court finds that rape occurred and resulted in conception. Without that factual finding, the default best-interests analysis applies.

4. Witness Sequestration

A sequestration order requires witnesses to stay out of the courtroom (or otherwise avoid hearing testimony) until after they testify. This:

Reduces the risk of witnesses tailoring their stories to match others’; and
Helps preserve independent recollection.

However, a violation does not automatically exclude testimony. The complaining party must show that the testimony was actually changed or influenced by the violation.

5. Materiality (in Continuances)

“Material” testimony is evidence that:

Is important to a central issue in the case; and
Could reasonably affect the outcome if presented.

In Jessop, the Court found Lisa had not shown Brower’s testimony was material, because she did not specify what he would say about Brian personally, and other witnesses already covered the general FLDS concerns.

6. The South Dakota Parenting Guidelines

The Parenting Guidelines provide a standard framework for parenting time, often reflecting a progression from more limited to more extensive contact (including overnights) as children age. Courts can adopt, modify, or deviate from the Guidelines in the child’s best interests.

Here, the circuit court adopted the Guidelines with a short transitional period for a very young child, signaling that absent compelling evidence, ongoing, unsupervised contact with both parents is the default.

IV. Conclusion

Jessop v. Combs is an important application of established custody principles to a sensitive modern problem: allegations that a parent’s association with a controversial religious group and a disputed sexual assault render unsupervised contact unsafe.

The South Dakota Supreme Court’s decision underscores several core points:

Trial courts are given wide latitude in custody and visitation decisions, especially on questions of witness credibility and fact-finding.
Continuances and sequestration orders are procedural tools, not automatic grounds for reversal; the moving party must show concrete materiality and prejudice.
Religious background, even in a group with a documented record of abuse and abduction, does not justify parenting-time restrictions without specific, credible evidence that the individual parent actively adheres to dangerous practices.
The rape-based presumption against visitation in SDCL 25-4A-20 is a powerful but carefully cabined tool, triggered only when a court actually finds rape occurred and resulted in conception.
Attorney fees in custody litigation remain exceptional, not routine, and appellate review is especially deferential when records are incomplete or when litigants lose on all issues.

Overall, Jessop v. Combs reinforces that South Dakota custody law remains anchored in individualized best-interest determinations grounded in specific evidence about the child and the parents—rather than fear, stereotype, or generalized condemnation of religious or cultural communities. It will serve as a significant reference point in future disputes where allegations of religious extremism, sexual violence, or potential abduction intersect with the fundamental question of how to structure a child’s relationship with both parents.