Fuerstenberg v. Fuerstenberg

In Fuerstenberg v. Fuerstenberg, 1999 SD 35, P20, 591 N.W.2d 798, the Court upheld the circuit court's exercise of jurisdiction over a custody modification proceeding despite the fact that the child had lived in Minnesota with his mother for ten years after the divorce. The Court reached that result largely on the basis that the circuit court had entertained, without objection, many earlier legal proceedings concerning the child even though he was living in Minnesota with his mother. The standards for reviewing this argument were set forth in Fuerstenberg v. Fuerstenberg: 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." SDCL 26-5A-7. Ultimately, the question comes down to whether "it is in the interest of the child that another state assume jurisdiction." Id. In making this decision, a court should consider the following nonexclusive factors: (1) If another state is or recently was the child's home state; (2) If another state has a closer connection with the child and his family or with the child and one or more of the contestants; (3) If substantial evidence concerning the child's present or future care, protection, training, and personal relationships is more readily available in another state; (4) If the parties have agreed on another forum which is no less appropriate. The Court reviews decisions under SDCL 26-5A-7 under the abuse of discretion standard of review. See Fuerstenberg, 1999 SD 35 at P21, 591 N.W.2d at 806.