Determining custody is a fact-intensive and complex exercise. The courts, custody evaluators, and the lawyers involved in custody issues try to answer a number of questions -- questions that were first outlined by the South Dakota Supreme Court in a case called "Fuerstenberg v. Fuerstenberg." Hence the title "Fuerstenberg Factors." To give you a general idea of what is important in custody cases, the Fuerstenberg Factors are described below. Please keep in mind, however, that this is just a general discussion – call our office at 606-390-0999 to get advice and guidance specific to your unique situation.

(1) Who is the more "fit" parent? To answer this question, courts will look at:

  • The parent's mental and physical health;
  • Which parent is better able to provide basic needs (clothing, food, medical care, etc?)
  • Which parent can best give love, guidance, affection, and education;
  • Who will better impart religious or spiritual values;
  • Which parent will best encourage the child's relationship with the other parent;
  • Who will be a better role model, as a good parent, loving spouse, or good citizen?


(2) Who is the more "stable" parent?

  • Who provides a more stable home?
  • Who has the best interaction with parents and extended family?
  • Who can best ensure that the child is adjusted to home, school and community?
  • Who has a closer attachment with the child?
  • Who can provide "continuity" best?

(3) Who is the "primary caretaker"?
  • Who is the more involved parent?
  • Who is the more devoted parent?
  • Who has invested more time in parenting duties, such as:
    • Preparing meals
    • Playing with child
    • Attending to medical care/keeping up on doctor and dental appointments
    • Shopping for clothing and items for child
    • Involved in school, like parent/teacher conferences
    • Attending child's extracurricular activities
    • Arranging daycare and transportation
  • Who has more time available to spend with the child?

(4) Who does the child prefer?
  • Important where the child is old enough to "form an intelligent preference"

(5) Are there half-siblings involved? If so, the child has a right:
  • To remain with his/her half-brothers and sisters;
  • To share in each other's lives;
  • To grow up together.

(6) Is there "misconduct" by the other parent?
  • Must be evidence that child was "harmed" by the misconduct
  • For "moral" misconduct, must also show that it
    • Was committed in the presence of the child, and
    • Child is old enough to perceive the wrongfulness

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