South Dakota Child Custody Laws

South Dakota Child Custody

Here’s what to know if you’re engaged in a child custody action in South Dakota.

What are the Types of Child Custody in South Dakota?

South Dakota recognizes two types of custody.

Legal custody is a parent’s right to make medical, educational, and legal decisions on a child’s behalf. A parent with legal custody can decide where a child attends school, what kinds of medical care the child receives, and whether the child should be raised in a particular religious faith, among other important life decisions.

When parents share legal custody, it is called joint legal custody.  Sometimes, one parent may have sole decision-making rights over a child, but courts prefer both parents are actively involved in making decisions about their children.  Sole legal custody may be awarded in cases with a history of domestic violence, substance abuse, or criminal activity.

Physical custody refers to where the child lives. A parent with primary physical custody is called the custodial parent.  This is the parent where a child will live most of the time.

The other parent is called the noncustodial parent, and unless there are extenuating circumstances, they are entitled to regular visits, including weeknights, alternating weekends, and school and summer holidays. Parents can share physical custody, or one parent may be awarded sole physical custody rights over the child.

Custodial parent responsibilities may include the child’s primary physical residence, child care, education, extracurricular activities, medical and dental care, religious instruction, the child’s use of motor vehicles, and any other responsibilities which a court finds unique to a particular family or in the child’s best interests.  However, joint physical custody agreements will split these decisions.

Regardless of the agreement, South Dakota child custody laws require parents to allow their child to communicate reasonably with their other parent while they are away from that parent. This could be by phone, email, text, or other means of electronic communication.

Parents can reach custody agreements in a South Dakota divorce independently or with a family law attorney or a mediator’s help. A judge will review the resulting parent plan to ensure it meets the child’s needs before entering it as an order of the court. When parents can’t reach an agreement, their case will go to trial, and a judge will decide on both legal and physical custody.

When more than one child is involved, split custody can take place.  This means each parent will take primary custody of one or more children.  Courts don’t like this arrangement and normally want to keep all siblings together, but in some cases, the child’s best interests are to keep them separate.

Because divorces can take months to finalize, judges will also grant temporary custody orders at the beginning of a case.  These are often referred to as pendente lite orders and expire when the divorce is finalized.  They are often replaced with new orders.

The laws governing child custody and visitation in South Dakota are found in the South Dakota Codified Laws, Title 25, Domestic Relations.

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Determining Child Custody in South Dakota

South Dakota does not have a defined list of factors for the court to consider when determining a custody order.

Judges have significant flexibility on a case-by-case basis when determining a custody arrangement between two parents.

In all instances, the overriding factor is to create a custody plan that is fair and just and serves the child’s best interests.  A child’s interests are placed above the parents’ needs.

Judges will look at the relationship between the parent and the children, which parent is more fit and capable of providing the best environment for the child, whether there are harmful aspects present in either home and other similar factors.

Detailed South Dakota Parenting Guidelines can be found in Chapter 25-4A in the South Dakota Codified Laws Appendix. They discuss all aspects of custody and parenting issues, including detailed schedules created for children of various ages and circumstances.

Some examples of schedules from the Guidelines include:

Newborns (birth to 3 months): The non-residential parent can have three 2-hour custodial periods per week. One weekend custodial period for six hours at the custodial parent’s house or another agreed location.

Infants (3 to 6 months): Alternative Parenting Plans: (1) Three, 3-hour custodial periods per week, with one weekend day for six hours. Breastfeeding must be accommodated. Or (2) Three three-hour custodial periods per week. One overnight on a weekend for no longer than a twelve-hour period if the child is not breastfeeding and the noncustodial parent can personally provide primary care.

Babies (6 to 12 months): Alternative Parenting Plans: (1) Three custodial periods per week of up to four hours each with one weekend day for six hours; or (2) Three custodial periods per week of up to four hours each with one weekend day for six hours, but with one overnight not to exceed twelve hours, if the child is not breastfeeding, and the noncustodial parent is can provide personal primary care; or (3) Child spends time in alternate homes, but spends significantly more time in one parent’s home and no more than one to two overnights spaced regularly throughout the week at the other parent’s home if the child is not breastfeeding.

Toddlers (12 to 36 months): Alternative Parenting Plans: (1) Three custodial periods per week of up to eight hours each on a predictable schedule; or (2) Three custodial periods per week of up to eight hours each on a predictable schedule and also one overnight per week; or (3) Child spends time in alternate homes, but with significantly more time in one parent’s home with one or two overnights spaced regularly throughout the week. Arrangement (3) requires an adaptable child and cooperative parents.

Preschoolers (3 to 5 years): The noncustodial parent can have one overnight visit on alternate weekends and one-midweek visit.

Parents can create their own schedules, but when they cannot agree on their own Parenting Plan, these Guidelines become mandatory and will be used as their Parenting Plan.

What is South Dakota’s Best Interests of the Child Standard?

State law requires that a child’s needs are primary to any custody decision in South Dakota.  When parents can’t agree on custody issues, a judge will make decisions based on South Dakota’s “best interests of the child” standard.

Courts have broad discretion to decide the child’s best interests and will base each case on individual circumstances.  However, several factors will help guide the judge to this best-interest decision.  Those factors are:

  • The child’s relationship with each parent
  • The child’s age and physical and emotional health
  • The child’s relationship with siblings and extended family members
  • The child’s ties to home, school, and the community
  • Each parent’s physical and mental health
  • The quality of communication between the parents
  • Which parent is more likely to encourage a relationship between the child and the other parent?
  • Each parent’s fitness and stability
  • Each parent’s willingness to foster a relationship between the child and the other parent
  • Either parent’s history of domestic violence
  • Either parent’s history of neglect, if any
  • The child’s preference if they are of sufficient age and maturity
  • Each parent’s role in the child’s caretaking,
  • Each parent’s work schedule.

The court will also look at the parents’ geographical proximity in a joint custody situation.

South Dakota courts also have statutory authority to appoint a guardian ad litem or attorney to represent the child in a custody case. This person advocates for the best interest of the child.  They will investigate the family situation and advise the court of their findings.

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What to Know About Parenting Plans

Parenting plans lay out how custody is handled for each child.  Courts prefer that parents develop a plan on their own but will step in and make decisions if needed. All input and evidence are used to create a parenting plan that meets the best interests standard.

In some cases, parents retain a mediator or a family law attorney to help them draft a plan, increasing the chances that a judge will approve the agreement.

A parenting plan should contain the following elements:

  • Physical custody details, including the number of overnight visits for each parent.
  • Legal custody and how those responsibilities are allocated between parents.
  • Holiday and school break schedules
  • Vacation and travel approval and advance notifications
  • Transporting children for visitation and other necessary movements
  • Access to records and information
  • How will a child communicate with both parents
  • How is communication between parents handled?
  • Contact with other family members and friends
  • How are tuition, medical costs, school activities, hobbies, and recreational activities expenses handled?
  • Child support payment amounts and recourse if a parent falls behind.
  • The manner of exchanging children, including when, where, and time of day
  • Transporting children for visitation and other necessary movements
  • Access to records and information
  • Children’s use of technology and online activities
  • How to address child discipline and mental health issues
  • Guidelines when a new partner is involved
  • Grooming and dress guidelines (extreme haircuts, make-up, etc.)
  • Drinking or drug use in the presence of the children

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How Do I Modify a South Dakota Custody or Visitation Order?

Custody and visitation orders stay in place until they are modified, the child turns 18, or is emancipated.

If a parent wants to modify a child custody decision, they can petition the court and make the request.  Petitions must demonstrate the substantial and material change in circumstances since the initial custody decision, and the child’s welfare and best interests warrant the modification.

Substantial changes can include a job change, a move to a distant location, health issues, or other similar events.  The judge will use the same best interest standards to create the original order.

Also, until the judge approves a modification, it is essential that both parents follow the plan that is in place.  Failure to do so can create legal challenges and may result in penalties, fines, court costs, and other similar actions.

South Dakota Child Custody FAQs

When will a South Dakota judge consider a child’s custody preferences?

A court may consider a child’s opinion on custody if the child is old enough and mature enough to state a custodial preference.  There is no specific age that this happens.  It is based on the individual child, whether or not they’ve been coached or coerced, and if the preference is in their best interests.

Also, the child’s input is advisory only.  Judges have the final say in all decisions.

In South Dakota, does the mother usually get custody of the child?

No.  Custody law does not discriminate or favor one parent over the other based on gender. Mothers and fathers are equally entitled to seek and be awarded custody.  Both are considered to be their children’s natural guardians and have equal rights and responsibilities.

How is the process different for unmarried parents?

When parents are unmarried, the mother is legally considered to be the sole custodian of the child until paternity is established.  This can be accomplished through acknowledgment or DNA testing.

However, the father of a child born out of wedlock can still obtain custody of the child as long as the court finds it would be in the child’s best interests.

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