Glenn FUERSTENBERG, Plaintiff and Appellee, v. Jill FUERSTENBERG, n/k/a Jill Harberts, Defendant and Appellant.
No. 20300.
Supreme Court of South Dakota.
March 24, 1999.
1999 SD 35 | 591 N.W.2d 798
Considered on Briefs Sept. 17, 1998.
Richard L. Johnson, Sioux Falls, South Dakota, for defendant and appellant.
KONENKAMP, Justice.
[¶ 1.] If a child has lived out-of-state with his mother for ten years following a divorce, may the court that granted the initial custody decree rule on a request for modification from the father who still lives in state? The mother appeals the circuit court‘s refusal to decline jurisdiction and its order changing physical custody. Because the circuit court entered the initial custody decree and thereafter continued to hear, without objection, custody and visitation disputes between the parents, even though the mother and child lived out-of-state, we conclude the court did not abuse its discretion in finding South Dakota a convenient forum to hear the present dispute. However, we reverse the court‘s decision to modify custody and remand for a more systematic consideration of the traditional factors relevant to the best interests of the child.
Facts
[¶ 2.] Jill (Fuerstenberg) Harberts and Glenn Fuerstenberg were married on August 31, 1984. They had one child, Keith, born February 27, 1986. The marriage ended in divorce on January 25, 1988. By agreement, Keith‘s custody went to Jill, with Glenn having reasonable visitation. Jill remarried in 1988 and moved to Minnesota. She and her new husband, Kevin Harberts, had one child, Allison. Kevin and Jill divorced in 1995 and she eventually settled in Mankato, Minnesota with her two children. Glenn remarried in 1993. He and his wife live in Sioux Falls, South Dakota. In the ten years following their divorce, Jill and Glenn frequently returned to circuit court in South Dakota with disputes over child support, visitation and custody. Glenn sought orders to show cause over visitation problems on March 18, 1988, January 27, 1989, and February 23, 1993. Jill petitioned for child support modification on September 12, 1989 and March 23, 1995.
[¶ 3.] In February 1995, Glenn moved to change Keith‘s physical custody. He con
[¶ 4.] Glenn took Keith to John Sivesind, Ed.D., who evaluated him in the summer of 1995. With his mother‘s recent move, Keith was about to enter the fourth grade at a new school in Mankato. Sivesind found Keith to be in the low-average range of intellectual functioning, with a history of academic difficulties. Sivesind thought the “divorce of [Keith‘s] parents is unsettling to the point that it set him back academically.” Adding to the disruption was Jill‘s recent divorce from Harberts. “It needs to be noted,” Sivesind wrote, “that his step-father was the primary male role model and caretaker in his life from 1987 to 1995.” Keith referred to Harberts as “Dad.” Sivesind apparently found it insignificant that in the third grade Keith had one incident of bad behavior, resulting in a visit to the principal‘s office. In the recommendation portion of his report, Sivesind concluded, “Keith has been loved and well taken care of.” His adjustment problems in response to his parents’ divorce “seems to have resolved.” Sivesind especially lauded “Keith‘s report that neither parent has said anything negative about the other.”
[¶ 5.] Then, without having been requested to do so, and concededly without having any firsthand knowledge of Jill, Sivesind offered a custody recommendation. “While it may go beyond the scope of this evaluation, this evaluator would like to make the recommendation that Keith be placed in the physical custody of his father.” Sivesind had two reasons: (1) Glenn had remarried and children of divorce benefit from their parents’ remarriage and (2) children “make a better psychological adjustment if they are in the custody of the same sex parent.” Nonetheless, at the end of his report Sivesind wrote, “In summary, Keith appears to be happy, healthy, and psychologically well functioning.” On August 16, 1995, based on this report, the court declined to reconsider its custody decision, stating:
After reviewing the report of the psychologist, I am satisfied that the child is not being damaged psychologically by either parent. The reasons the psychologist gives for recommending the custody change to the father does not justify a change of custody. The child is happy in both households and expresses concern about leaving his step-sister if he went to live with his father. The father must show a change of circumstances and that the best interests of the child require a change of custody. The facts do not justify a change.
[¶ 6.] In April 1997, Glenn again moved to change physical custody and requested home studies. Glenn alleged Keith‘s grades had seriously declined; he had behavioral problems at school; his friends exerted a “bad influence” over him; he suffered a considerable weight gain in a short time caused by improper nutrition; Jill would not allow Keith to participate in after-school sports, even though Keith had expressed an interest in playing basketball and hockey; Jill took both Allison and Keith to Jim‘s (her boyfriend) and stayed overnight at his house more than once; Jim had stayed overnight at Jill‘s home on more than one occasion; and Keith told Glenn that Keith thought Jill and Jim “sleep naked.”
[¶ 7.] Jill denied Glenn‘s allegations, claiming Keith‘s grades and behavior had improved, and that she met with Keith‘s teachers and developed a plan for Keith‘s continued academic success. Jill also averred that Keith‘s doctor was not concerned about his weight gain, and that Keith participated in Cub Scouts and played soccer in Minnesota. She admitted that she and Jim were in a romantic relationship, but denied that Keith or Allison had ever been in a position to observe any behavior detrimental to their moral upbringing. She
[¶ 8.] Asserting that collateral references and all information on Keith‘s well-being were in Minnesota, Jill moved the court to decline jurisdiction in South Dakota as an inconvenient forum, to allow a court in Blue Earth, Minnesota to hear the matter. The court denied Jill‘s request, finding that South Dakota was not an inconvenient forum. Recurrent disputes concerning Keith had been heard in circuit court over the years, even though he lived in Minnesota. The court deemed itself far more familiar with Keith‘s circumstances than any Minnesota court would have been in hearing the matter anew. In addition, Keith‘s Minnesota school and medical records could be easily obtained.
[¶ 9.] At the custody hearing, Dr. Sivesind‘s second report was entered into evidence. This assessment was similar to the one he conducted in 1995, but, as requested by the court, its express purpose was to determine “if there has been a substantial and material change that would warrant a change in custody.” Sivesind noted that, although there were differences between his 1995 and 1997 evaluations, there were no “substantial and material changes in Keith‘s situation.” He found that “the most significant changes” in Keith were his aggressive behavior, withdrawal and social problems. Sivesind characterized Keith as sometimes shy, withdrawn and secretive. Keith reported that he was often teased about his weight and he expressed concern about his withdrawal and social problems, but he would not acknowledge any increased aggressiveness. From Sivesind‘s perspective, although Keith had some behavior problems in school, he behaved better there than he did at home, at least as that behavior was reported by Glenn. From examining Keith‘s school records and psychological testing, Sivesind deduced that Keith was “working to his ability,” but “could be more focused and extend more effort.” Sivesind believed Keith needed help to improve his reading skills, but “he would not qualify for any formal academic remediation programs.” Keith was enthused about playing sports, and Sivesind agreed that Keith needed more opportunity to make and maintain peer relationships. On a disquieting note, Sivesind observed that to improve his chances of obtaining custody Glenn had become “invested in making Keith appear more symptomatic.”
[¶ 10.] Keith consistently told Sivesind that he wished to stay with his mother. He wanted his father to “back off in court,” and for Kevin Harberts, his former step-father, to “stop making trouble” for him and his sister, Allison. Unlike his first report, Sivesind made no final recommendation, but he reiterated Keith‘s desire to remain with his mother, affirming that it was in the court‘s discretion to decide if Keith‘s wishes should be followed. In sum, Sivesind stated, “this evaluator finds that academically, behaviorally, and socially there have not been substantial and material changes in Keith‘s situation.”
[¶ 11.] Another psychological assessment was performed in Minnesota by Dr. Allen Coursol, Ph.D., as requested by the agency Jill hired to complete a home study. This evaluation concluded Keith did not show any clinical symptoms of depression or anxiety. Nonetheless, Coursol detected an “adjustment disorder,” characterized by dysphoria, agitated moods, and mild sleep disturbance associated with worry. He suggested that Keith‘s increased behavioral problems at school resulted from two sources of stress: (1) his poor school performance and (2) this custody dispute with its potential for removal from his home. Keith proclaimed his wish to stay with his mother in Minnesota and the evaluator noted that Keith was “emotionally distraught” over the possibility of having to live with his father. Keith said he was more comfortable at his mother‘s home and did not feel “safe” at his father‘s. He also wanted to remain close to his sister. On Jill‘s ability as a parent, the psychologist observed that she had “good listening skills,” was “highly involved with facilitating Keith‘s academic functioning,” and she appeared to present a
[¶ 12.] Jill presented testimony from one of the home study evaluators, Sharon Fruechte. She recommended that Keith remain in the care of his mother. The court, however, discounted the recommendation as biased. Jill paid for the study and the counselor readily admitted that more time had been spent with Jill than with Glenn. The court also found the home study incomplete because the counselor had spoken to Jill‘s family, but not to Glenn‘s.
[¶ 13.] One of Glenn‘s most persistent complaints was that Jill had continually failed to sign releases to allow him access to Keith‘s medical and school records. Nonetheless, Glenn obtained a copy of one of Keith‘s homework logs on which Keith had drawn a swastika. Glenn also produced a homework assignment in which Keith had characterized himself as a child of divorce when asked to describe his family. Glenn felt these things reflected Keith‘s growing behavior problems and a poor self-image. Jill denied withholding medical releases and stated she had a talk with Keith about the swastika and what it represented.
[¶ 14.] After considering the testimony and the psychological reports, the court granted Glenn‘s motion to change physical custody, finding that: (1) Jill refused to sign releases allowing Glenn access to Keith‘s medical and school records, despite numerous court orders over the years to do so; (2) she constantly “badmouth[ed]” Glenn to Keith; (3) she had several different relationships and one marriage since she divorced Glenn; (4) she allowed men to sleep at her house overnight while Keith was present; (5) she was court-ordered in the past to properly feed Keith; (6) Keith‘s “school paper showing a drawing of a swastika signals that a problem is manifesting itself;” (7) Jill consistently signed Keith‘s homework logs, even though Keith did not finish his school work; (8) Jill had been given repeated chances to be a conscientious parent to Keith but was unsuccessful; and (9) Jill exhibited a negative attitude toward Glenn, consistently failed to be a conscientious parent to Keith, and her living situation was unhealthy for him and had a negative influence on him. The court concluded, therefore, that Keith‘s best interests required a change of physical custody to Glenn, with Jill receiving visitation. Keith now lives with Glenn and his wife in Sioux Falls.
[¶ 15.] Jill appeals on the following issues: (1) Whether the trial court erred in denying Jill‘s motion to decline jurisdiction in South Dakota as an inconvenient forum; and, (2) whether the trial court erred in changing Keith‘s physical custody.
Standard of Review
[¶ 16.] We review factual determinations under the clearly erroneous standard. Therkildsen v. Fisher Bev., 1996 SD 39, ¶ 8, 545 N.W.2d 834, 836; Lindquist v. Bisch, 1996 SD 4, ¶ 16, 542 N.W.2d 138, 141. Questions of law, including statutory construction, we decide without deference to the circuit court‘s conclusions. West Two Rivers Ranch v. Pennington County, 1996 SD 70, ¶ 6, 549 N.W.2d 683, 685. Whether a court is a convenient forum under the Uniform Child Custody Jurisdiction Act (UCCJA) is a decision we review under the abuse of discretion standard. Lustig v. Lustig, 1997 SD 24, ¶ 5, 560 N.W.2d 239, 241 (citing 1 Homer H. Clark, Jr., The Law of Domestic Relations in the United States § 13.5, at 795 (2d ed 1987) (citing cases)); see generally Winkelman v. Moses, 279 N.W.2d 897 (S.D.1979).
Analysis and Decision
1. Interstate Custody Disputes under the UCCJA and PKPA
[¶ 17.] To determine initial, modification and enforcement jurisdiction in interstate child custody disputes we examine both the UCCJA and the Parental Kidnapping Prevention Act (PKPA). First, we decide if the court has jurisdiction under the UCCJA; then, we review the prohibitions of the PKPA.1 The policy underlying these laws is
[¶ 18.] Because the rules controlling modification jurisdiction differ from those governing initial jurisdiction, it is important to note that this case does not involve deciding initial jurisdiction.2 The question here centers on jurisdiction to modify an existing divorce decree. Under the UCCJA, the state that granted the initial custody decree maintains exclusive continuing jurisdiction over later custody questions until all the litigants have moved from the state or the initial decree state declines to further exercise jurisdiction.
[¶ 19.] With interstate custody disputes, the PKPA plays a superintending role.
[¶ 20.] A court may nonetheless decline its jurisdiction “if it finds that it is an inconvenient forum to make a custody determination . . . and that a court of another state is a more appropriate forum.”
- If another state is or recently was the child‘s home state;
- If another state has a closer connection with the child and his family or with the child and one or more of the contestants;
- If substantial evidence concerning the child‘s present or future care, protection, training, and personal relationships is more readily available in another state;
- If the parties have agreed on another forum which is no less appropriate.
[¶ 21.] On the other hand, we recognize that this is a close question, considering that Keith‘s home state for a decade was Minnesota, and that much of the dispute in this case converged around Keith‘s care and education there. Several countervailing indicators point to Minnesota as a more convenient forum. Problems Glenn claimed Keith experienced in school were directly contradicted in reports written by Keith‘s teachers and his “team room” supervisor. Glenn related in an affidavit, for example, conversations he had with Mary Mortier, one of Keith‘s teachers, about problems Keith was having in class. In a point-by-point written statement, Mortier disputed some of the more controversial remarks Glenn attributed to her. In its findings, the court apparently accepted Glenn‘s version over Mortier‘s; specifically, the court found that Jill had “consistently” signed off on Keith‘s uncompleted homework assignments. According to Mortier, however, “there were a few times when Keith did not fill in his assignment log and Mrs. Harberts signed it anyway, but it only happened two or three weeks.” Glenn made much of Keith‘s weight gain, even claiming that Mortier expressed concern about it. Yet she denied in her written statement ever having mentioned it and even disclaimed having thought of it as a concern. When the obesity question was brought to Keith‘s Minnesota medical doctor, his report in the record shows no concern about Keith‘s weight. These matters suggest that Minnesota would have been a convenient forum to litigate these intensely contested facts. Nonetheless, there is also evidence in the record to support the court‘s decision and we review judgments on whether to decline jurisdiction under
2. Change of Custody
[¶ 22.] In deciding the best interests of a child in a custody dispute, the court must consider the child‘s temporal, mental and moral welfare.
[¶ 23.] Discretion imports wide latitude, but it also imposes solemn responsibility. Michelson v. United States, 335 U.S. 469, 480, 69 S.Ct. 213, 221, 93 L.Ed. 168 (1948). Established principles governing child custody decisions cannot be disregarded. Here, the trial court scarcely addressed the traditional factors bearing on the best interests of the child.5 Instead, it reproached the mother for what the court perceived as inadequate parenting and lack of cooperation. The court made no findings of fact on the father‘s fitness, stability, or his parenting assets and liabilities. Indeed, the court made no findings about the father whatsoever, except to note that he was “an involved, concerned parent who exercises his visitation and pays his child support.” We encourage trial courts to take a balanced and systematic approach in these cases. Child custody disputes should not be decided solely on a listing of faults ascribed to one parent or on the petty and often extraneous quarrels between former spouses. A few of the guiding principles, pursuant to the “best interests” standard, a court may use in adjudging the facts to determine who will have the primary care of a child are set out below.
A. Fitness
[¶ 24.] Which parent is better equipped to provide for the child‘s temporal, mental and moral welfare?
[¶ 25.] The trial court made few findings on these vital issues. It found that the mother had to be ordered in the past not to provide meals in bars to Keith. Yet apparently this had not been a problem since the last custody decision in 1995. It found that the mother had “consistently” signed off on Keith‘s uncompleted homework assignments. The mother conceded she had mistakenly signed Keith‘s homework logs, but there was no substantiation in the record to establish that she had “consistently” done this. In fact, information supplied by the school indicated that Keith was completing his homework assignments. The court also found that Jill had not provided releases to the school and Keith‘s doctors, so that Glenn could have the same information about Keith that Jill had.
B. Stability
[¶ 26.] Who can provide a stable and consistent home environment? Jasper v. Jasper, 351 N.W.2d 114, 117-18 (S.D.1984); Langerman v. Langerman, 336 N.W.2d 669, 671-72 (S.D.1983); Haskell v. Haskell, 279 N.W.2d 903, 906 (S.D.1979); Wright v. Stahl, 73 S.D. 157, 39 N.W.2d 875, 876-77 (S.D.1949). Factors to be considered in this category include: (1) the relationship and interaction of the child with the parents, stepparents, siblings and extended families, Hansen v. Hansen, 327 N.W.2d 47, 48-49 (S.D.1982); (2) the child‘s adjustment to home, school and community, Jasper, 351 N.W.2d at 117-18; (3) the parent with whom the child has formed a closer attachment, as attachment between parent and child is an important developmental phenomena and breaking a healthy attachment can cause detriment;6 and (4) continuity, because when a child has been in one custodial setting for a long time pursuant to court order or by agreement, a court ought to be reluctant to make a change if only a theoretical or slight advantage for the child might be gained. Otherwise, the child‘s sense of sustainment and belonging may be unnecessarily impaired.7 In these circumstances, the court should discern a distinct need to remove a child from one setting and a reason to place the child in a new one.
[¶ 27.] The trial court made no findings on these important considerations. Yet, according to Dr. Sivesind, while in the custody of his mother, “Keith has been loved and well taken care of.” Also, according to Sivesind‘s first report, Keith was “happy, healthy, and psychologically well functioning.” In his second report, Sivesind saw little change in Keith‘s situation.
C. Primary Caretaker
[¶ 28.] Who is more committed and involved in parenting the child? Saint-Pierre v. Saint-Pierre, 357 N.W.2d 250, 255 (S.D.1984). In some jurisdictions the “primary caretaker” parent is given preference in custody disputes either by statute or case authority. See Garska v. McCoy, 167 W.Va. 59, 278 S.E.2d 357 (W.Va.1981). Here, this factor is important not by reason of any preference it might accord, but because it is a fair indicator of which parent has been more responsible to the child in the past. See generally Voelker v. Voelker, 520 N.W.2d 903, 907 (S.D.1994) (mother, as primary caretaker, was proper custodial parent); Kost, 515 N.W.2d at 212 (custody award to father of handicapped child upheld as father was parent primarily responsible for care and mental development of child). After a custody dispute begins, some contestants try to make themselves appear as good as possible. But the trial court must consider who was more devoted to the child when there was no court to impress. The primary caretaker can be identified by determining which parent invested predominant time, care and consistency in raising the child. It is evidenced in such matters as spending time with the child, preparing meals, playing, attending to medical care, choosing clothing, involvement in school, attending the child‘s extracurricular activities, reading to the child, preparing birthday parties, knowing the pediatrician, consistent disciplining, arranging transportation, and providing appropriate clothing,
[¶ 29.] Identifying the primary caretaker becomes less important as the child grows older and more independent. A maturing child will probably need more guidance and discipline than the nurturing required in younger years. A person who was the primary caretaker during the child‘s early youth may still be the best person to care for the older child, but this is not universally true, because different parenting skills are required. Jeff Atkinson, Criteria for Deciding Child Custody in the Trial and Appellate Courts, 18 FamLQ 1, 18 (1983). The trial court made no findings in this area, although it is obvious from the record that Jill had been Keith‘s primary caretaker all his life. It is also disturbing that Dr. Sivesind reported that Keith‘s former step-father was his “primary male role model and caretaker in his life from 1987 to 1995.” (emphasis added).
D. Child‘s Preference
[¶ 30.] “If the child is of a sufficient age to form an intelligent preference, the court may consider that preference” in deciding custody.
E. Harmful Parental Misconduct
[¶ 31.] Where there is no evidence that a parent‘s marital misconduct has a harmful effect on a child, it should not be taken into account in awarding custody. Hanks, 296 N.W.2d at 525;
F. Separating Siblings
[¶ 32.] Siblings should not be separated absent compelling circumstances. Mayer v. Mayer, 397 N.W.2d 638, 642 (S.D. 1986) (citation omitted). This is no less significant when children are half-siblings. Id. at 644 (citation omitted). “Justice requires that society exercise its moral duty to insure that children in a family enjoy the right to remain together, to share each other‘s lives, and to grow up together, until such time as necessity and the welfare of the children, itself, requires their separation.” Id. Keith and Allison are only three years apart. A court ought to be especially concerned about keeping together siblings who are at or near the same age. Of course, maintaining children in the same household should never “override the controlling question of their best interests.” Crouse v. Crouse, 1996 SD 95, ¶ 21, 552 N.W.2d 413, 419. By all accounts, Keith had a close relationship with
G. Substantial Change in Circumstances
[¶ 33.] It has long been the rule in South Dakota that, to modify a custody decree rendered after a contested hearing, the moving party must show a substantial change in circumstances.
[¶ 34.] To prevail, Glenn had to show a substantial change in circumstances from the time of the court‘s denial of his request for reconsideration in August 1995. Although the court rendered fact findings adverse to the mother, it made no findings on what substantial changes occurred between the custody hearings of 1995 and 1997. Sivesind‘s report indicated no substantial change. A trial judge, of course, is not bound to accept an expert‘s opinion. Yet the court, after taking some testimony, adjourned the hearing and recommended that Glenn take Keith back to Sivesind for a second evaluation because his earlier report indicated that Keith, in the court‘s words, was “perfectly psychologically well adjusted.” The court reasoned, “If Dr. Sivesind would say he‘s perfectly adjusted like he was two years ago, I would like to see that.” Sivesind‘s second report effectively confirmed exactly what the court asked to see.
Conclusion
[¶ 35.] The guidelines outlined above are, in most instances, merely consultative. A court is not bound to make a finding on every one. Yet in important matters of child custody, a court‘s decision should be balanced and methodical. After examining the record and the court‘s findings, we believe the trial court abused its discretion in failing to assess both Glenn and Jill as parents and in overlooking the traditional legal factors in deciding the best interests of the child in custody disputes. On remand, the court will have the opportunity to reconsider the evidence in light of these factors and to compare Keith‘s circumstances while living with his father.
[¶ 36.] Affirmed in part, reversed in part, and remanded.
[¶ 37.] MILLER, Chief Justice, and AMUNDSON and GILBERTSON, Justices, concur.
[¶ 38.] SABERS, Justice, concurs in result.
SABERS, Justice (concurring in result).
[¶ 39.] I concur in result of a reversal and remand for a new hearing because siblings, even half siblings, should not be separated absent compelling reasons. Here, it appears that there are no compelling reasons to separate these half siblings. Mayer v. Mayer, 397 N.W.2d 638, 642 (S.D.1986) (citations omitted).