Can Children Express Preference in South Dakota Custody Proceedings?

Can children decide which parent to live with in South Dakota custody cases? Find out below.

Separating parents often have different opinions on the best custody arrangement for their children. Additionally, children may have their own preferences regarding custody. In many states, family law judges presiding over custody cases must take a child’s custodial preference into account.

This article will explain how a child’s preference affects custody in South Dakota. If you have additional questions after reading this article, you should  contact a local family law attorney.

Overview of Child Custody Decisions in South Dakota

Many divorcing or separating parents are able to work out their own child custody arrangements and visitation schedules. But when parents can’t agree, a judge will make the custody decisions for them. The court’s primary consideration is what's in the child’s best interest. South Dakota courts must consider a number of factors when determining what is in the child’s best interest, including each of the following:

  • each parent’s stability
  • each parent’s fitness to care for the child
  • which parent has been the child's primary caretaker
  • each parent’s willingness to communicate with the other parent
  • whether either parent’s conduct would be harmful to the child
  • the child’s siblings and where they reside
  • the child’s preference, and
  • any other factors the court deems relevant.

To read more information about custody decisions in South Dakota, see  Child Custody in South Dakota: The Best Interests of the Child.

When Will the Court Consider a Child’s Preference?

Courts must take a child’s opinion into account when the child is of a sufficient age to form an intelligent preference. In South Dakota, there is no specific age after which judges must listen to a child's preference. Instead, the child must be old enough to state a well-reasoned and intelligent opinion. Courts have considered the opinions of children as young as 10 and may consider a child’s opinion who is younger than 10 if he or she is intelligent and mature.

When deciding how much weight to give the child's opinion, judges will also consider the reasons underlying the child’s preference. In one case, two children stated that they wanted to live with their father because they liked his fiancée and they preferred the school system near their father’s house. The court found that these were mature, valid reasons to prefer living with their father.

On the other hand, judges won’t give much weight to a child’s preference if it's based on immature reasons, like one parent being more lenient with discipline or buying more expensive gifts. Courts will reject a child’s preference if it appears to be based on temporary anger with one parent or a whim. Judges will also disregard a child’s preference if the child appears to have been coached to choose that parent.

At the end of the day, courts don’t have to follow a child’s custodial preference, even if it is a mature opinion. The judge only needs to consider the child’s opinion along with all the other factors relevant to custody. The court will decide against the child’s custodial preference if the selected parent having custody is not in the child’s best interest.

Do Children Have to Testify About Their Custodial Preferences in Court?

Judges are sensitive to the difficulty a child may have testifying about his or her custodial preference in court. The court will take steps to protect the child and avoid adding pressure to an already stressful situation. Most often, the judge will interview the child outside of the parents’ presence, in court chambers.

Typically, the parents’ attorneys will be present, but as observers, not to question the child. The court may allow the attorneys to submit questions that they would like the judge to ask the child, and the judge will do the questioning. Alternatively, if both parents agree, the judge may interview the child without the attorneys present. A court reporter must be present to make a record of the interview. The judge may choose not to allow the parents to read the transcript later, if it’s in the child’s best interest.

If you have additional questions about the effect of children’s custodial preferences, contact a South Dakota family law attorney for help.

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