The Fuerstenburg Factors and the Best Interest of the Child

By Casey Wilson

Currently in South Dakota, the term “best interest of the child” is the law of the land as far as child custody goes, as it should be. We all want to do what is truly in our child’s best interest, but what exactly does that mean?

Chances are I could ask 100 different people what the “best interest of the child” is – I would receive 100 different answers. The fact is we all have a skewed version of that due to our own individual biases. Whether our father or mother was important or uninvolved, whether dad or mom helped with active care duties or not. I honestly cannot recall if my father ever changed a diaper, but I know my mother did. What my father did teach me was how to have a strong work ethic, do what you say you are going to do, tell the truth, help other people and many things that have served me well. Does this mean that my mother was more important than my father since she would be considered primary caretaker by current standards if my parents had divorced? Absolutely not.

South Dakota’s current “best interest of the child” standard is not in codified law but in a piece of case law based in Fuerstenburg v Fuerstenburg . What is significant about this? The facts of this case show that one parent (mother) remarried and moved to Minnesota, the other parent (father) stayed in Sioux Falls. The father challenged custody. The South Dakota Supreme Court established a set of factors in determining the best interest of the child. These factors are: Fitness, Stability, Primary Caretaker, Child’s Preference, and Harmful Parental Misconduct. It is fair to point out that:

A shared or equal parenting arrangement which would give both parents maximum parenting time was not an option due to distance and was not established in these factors, YET WE ARE CURRENTLY USING THIS CASE TO DECIDE ALL CASES IN SOUTH DAKOTA .

This means one parent needed to be the winner with majority time and one parent the loser and be termed a “visitor”. I understand that this is a fact of the modern life of a divorced family when parents live a considerable distance from one another, but what about when parents living in close proximity? Why is this important?

BECAUSE THE FACTORS DO NOT ALLOW FOR THE POSSIBILTY OF A SHARED PARENTING (JOINT PHYSICAL CUSTODY) ARRANGEMENT WORKING.

It needs to be pointed out that nearly all research on post divorce outcomes for children say nearly equal involvement and time sharing by two fit parents in a child’s life is best for the child’s outcomes. So we can be safe to say if the factors DO NOT allow for maximum parenting time with both parents:

The Fuerstenburg factors are not research based, which needs to be the basis for ALL LEGISLATION. It would be safe to say if the Fuerstenburg factors are not research based that they are clearly not in “the best interest of the child”..

These factors established by a the South Dakota Supreme Court in the 1990’s should not apply to all custody cases, but only those cases where parents live too far apart to make a shared or equal parenting arrangement work. Even when parents do live a significant distance from one another, there are many ways to maximize parenting time, once again proven in the true best interest of the child.

It is important to point out that SB 74 most likely not change the fact that cases would be still be ruled upon using Fuerstenburg v Fuerstenburg, and the factors that do not encourage shared parenting. It is important our lawmakers devise a system that encourages cooperation between divorcing or separating parent. The current system and the winner take all Fuerstenburg factors do not encourage cooperation but conflict.

Our South Dakota Legislature should comprise a task force of child advocates, psychologists, and parenting experts to give true factors on the “best interest of the child” based on recent research, and be revisited every few years. These recommendations need to be adopted by our legislature if we plan on throwing around the term “BEST INTEREST OF THE CHILD” as haphazardly as these “professionals” in our family court system.

While I agree judges need some discretion and make the decision, they should not be defining the standards to make that decision. Our children are too important to let judges and attorneys define what is in the best interest of those children as these people are not trained in recent research, child psychology, family dynamics or even parental fitness, they are educated in the law. Why are we giving them this much control?

Why are we currently removing fit,capable parents from kids’ lives in South Dakota?

Having judges rule on these cases with the current factors under Fuerstenburg v Fuerstenburg would equate to having cancer and going to a mechanic to cure you rather than a doctor. Let judges interpret the law and unless true child advocates lay a framework for them and they be trained in that framework, they should not be given that much control over good people’s lives. That being said:

Until judges are given a clearcut set of guidelines that are based upon research by true professionals, please STOP terming it “the best interest of the child”.

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