IN CIRCUIT COURT SECOND JUDICIAL CIRCUIT

Civil Action No. 16-1234

IN RE MARRIAGE OF
SALLEY BRIGHT PETITIONER
V. MEMORANDUM
JOHN BRIGHT RESPONDENT
Comes by Petitioner, by counsel, and for her Memorandum states as follows:
I. FACTS
The Petitioner, Sally Bright, after asking her husband, Respondent John Bright, to temporarily move out of the shared residence due to marital difficulties and after a brief separation initiated this divorce action. The Petitioner was awarded temporary custody of the former couple’s fourteen-year-old minor daughter Chastity and now seeks primary custody. The Petitioner will soon be moving out of the jurisdiction to another state and a joint custody arrangement will prove to be impractical and disruptive …show more content…
Codified Laws § 25-4-45 says that in awarding custody of a child, the court shall be guided by consideration of what appears to be the best interests of the child in respect to the child’s temporal, mental, and moral welfare. If the child is of sufficient age to form an intelligent preference, the court may consider that preference in determining the question. South Dakota courts must consider a number of factors when determining what is in the child’s best interest, including each of the following: 1) each parent’s stability; 2) each parent’s fitness to care for the child; 3) which parent has been the child's primary caretaker; 4) each parent’s willingness to communicate with the other parent; 5) whether either parent’s conduct would be harmful to the child; 6) the child’s siblings and where they reside; 7) the child’s preference; and 8) any other factors the court deems relevant. In the present case the minor child has expressed desire to stay with Respondent as to not have to transfer schools or leave friends, but has also expressed hesitancy dealing with Respondents homosexual lifestyle and male companion. Therefore, given the incidents of domestic violence against Petitioner by Respondent, the child’s potential embarrassment and uncomfortableness with Respondent’s homosexual lifestyle and Respondent’s alcohol abuse the court should be persuaded to award custody to the Petitioner over the desires of the minor …show more content…
The court will always do what is in the best interest of the child, no matter what they desire or wish. In the present case the Respondent on several occasions abused the Petitioner. In most of the jurisdictions only a single incident of domestic violence is sufficient to create the rebuttable presumption. In persuasive precedence from the New Jersey Supreme Court even threats of physical violence were enough to create the rebuttable presumption (Cesare v. Cesare, 713 A. 2d 390, 1998). Thus as the Respondent has a history of domestic violence, even though never witnessed by the minor child or directed at her, the court should award custody to the