Should have called Lorie
In 1890, South Dakota rejected the women’s suffrage campaign and women’s rights did not pass in South Dakota for twenty-seven more years until 1917 by State Constitution. Yet, the above tender years doctrine remained the law in the State of South Dakota for sixty-two (62) years. Finally, in 1979, the tender years’ doctrine was repealed with changes to gender neutral laws, however, primary caretaker role remained paramount.
The 1877 Revised Codes of the Territory of Dakota rendered custody of a minor to the mother (if the child(ren) were of tender years) and to the father (if the child(ren) were of an age to require education and preparation for labor or business). This made a custody determination straight forward. If custody were disputed in a divorce action, children age six (6) and under would remain with the mother and over age six (6) would be placed with father. The presumption, at that time, was that Fathers could better prepare a child for intellect and earning potential and mothers could better prepare a child for love.
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Twenty years later, in 1999, the South Dakota Supreme Court in Fuerstenberg v. Fuerstenberg, 1999 SD 35 (SCt 1999) determined fitness and stability factors to consider in awarding custody. These factors were in addition to the primary caretaker role, such as: mental and physical health; capacity and disposition to provide the child with protection, food, clothing, medical care, and other basic needs; ability to give the child love, affection, guidance, education and to impart the family’s religion or creed; willingness to maturely encourage and provide frequent and meaningful contact between the child and the other parent; commitment to prepare the child for reasonable adulthood, as well as to insure that the child experiences a fulfilling childhood; and exemplary modeling so that the child witnesses firsthand what it means to be a good parent, a loving spouse, and a responsible citizen.
In addition to those factors, who can provide a stable and consistent home environment? What is the relationship and interaction of the child with the parents, step-parents, siblings and extended families? What is the child’s adjustment to home, school and community? Which parent has the child formed a closer attachment, as attachment between parent and child is an important developmental phenomena and breaking a healthy attachment can cause detriment; and 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.
Census bureau statistics for South Dakota in 2014 indicated that 75% of children under six (6) years and 81% of children between six (6) – seventeen (17) have both parents working outside of the home. So, it is logical that South Dakota put into place the updated shared parenting statute, SDCL 25-4A-24 July 1, 2014. In addition to the above questions, if you are divorcing or separating as unwed persons, consider the following questions before stepping up to joint custody: (1) Are both of you suitable physical custodians? (2) Do you both have appropriate dwellings? (3) Do you understand you both remain financially obligated and child support may still be required? (4) Can you mutually respect and effectively communicate with each other about daily child rearing matters? (5) How close do you live to one another?
Separation and Divorce is as unique as the relationships and the children involved. A full reflection of the above is essential to determine what will work for you and your family.
It is no surprise that since lawyers represent people, hot topics in the field of law correlate with social trends. The current hot topic in family law (in addition to grandparents raising their grandchildren) is the grey divorce (persons over age sixty (60) divorcing.) Why are persons divorcing later in life? Is it because they are raising their grandchildren at a time they thought they would be retiring?
Is it because we live longer? Is it because people can better qualify for Medicaid to pay for medical expenses or senior homes if they are single? Is it to protect their asset from future senior care facilities or medical debt? Viagra? Social acceptance?
1. Is your spouse suffering from any illness or disease in which he/she could be considered incompetent or lacking in capacity? Courts around the nation are dealing with the following issues:
A. A spouse attempting to conceal incapacity in an effort to procure a divorce.
B. Adult children or relatives attempting to get a party to file for divorce to have access and control of that party’s half of the marital estate,
benefits, personal property or control of the social security check.
C. Obtaining mental health records under HIPPA to show that a spouse lacks capacity.
D. Appointing a temporary conservator/payee while a person is married without notice to the spouse.
E. More than one Power of Attorney and which takes priority.
2. If your marriage lasted 10 years or longer, you may be able to receive benefits on your ex-spouse's record (even if he or she has remarried) if you are unmarried, 62+, your ex-spouse is entitled to social security benefits and your benefit is less than your ex-spouse.
3. Can you can revoke beneficiary designations of former spouses? Except as provided by the express terms
of a governing instrument, a court order, or a contract relating to the division of the marital estate made between the divorced individuals before or after the marriage ... Divorce revokes any revocable (i) disposition
or appointment of property made by a divorced individual to a former spouse in a governing instrument ... The statute defines "[g]overning instrument" as "a will, trust, or other governing instrument executed by
the divorced individual before the divorce or annulment of the individual's marriage to the former spouse.
Divorce at any age should include an analysis with a financial planner and amendments to important papers such as wills or codicils to a will. Certainly, check with a lawyer prior to filing for divorce.