591 N.W.2d 798 (S.D. 1999), 20300, Fuerstenberg v. Fuerstenberg

Docket Nº:20300.
Citation:591 N.W.2d 798, 1999 SD 35
Opinion Judge:KONENKAMP, Justice.
Party Name:Glenn FUERSTENBERG, Plaintiff and Appellee, v. Jill FUERSTENBERG, n/k/a Jill Harberts, Defendant and Appellant.
Attorney:Mary Ann Giebink, Gary W. Conklin of Galland Legal Clinic, Sioux Falls, South Dakota, for plaintiff and appellee. [4] Richard L. Johnson, Sioux Falls, South Dakota, for defendant and appellant.
Case Date:March 24, 1999
Court:Supreme Court of South Dakota
 
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Page 798

591 N.W.2d 798 (S.D. 1999)

1999 SD 35

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

Considered on Briefs Sept. 17, 1998.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Mary Ann Giebink, Gary W. Conklin of Galland Legal Clinic, Sioux Falls, South Dakota, for plaintiff and appellee.

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 contended

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that Jill was not allowing him his court-ordered visitation; Keith's grades were falling and his school attendance was "less than acceptable"; and Jill regularly took Keith to a bar to eat and, while there, let him play "pull-tabs." Glenn was concerned with Keith's unhealthy eating habits, lack of friends and absence of out-of-home activities. He claimed that Jill and her family believed they had "the power to cause evil" by casting a "hex" on persons, including Glenn. Glenn did not want his son raised in this "negative atmosphere." After a hearing the court denied a change in custody. Glenn asked for reconsideration and the court responded by ordering a psychological evaluation of Keith.

¶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

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submitted statements from Keith's Cub Scout den mother, his school "team room" supervisor and his math teacher. All indicated that he was not a disciplinary problem and that his homework was being completed. Jill did not oppose the request for a home study, but wanted it done by a licensed Minnesota professional, so the cost might be covered by her medical insurance.

¶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...

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