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
