Child Custody and Relocation in South Dakota

It's common for a divorced parent to relocate, but this can create problems for the other parent, including decreased parenting time and increased visitation costs. In South Dakota, when custodial parents want to move with their minor children, they must give specific notice to the noncustodial parent. If the other parent objects to the relocation, the court will hold a hearing to determine if the move is in the child's best interests.

What Constitutes a Relocation?

South Dakota law presumes that custodial parents have a right to relocate with their minor children unless the children's welfare is at risk. This doesn't mean that the custodial parent has the right to move whenever they want, which is why the noncustodial parent has the right to object to a proposed move.

A custodial parent is free to relocate with the minor child without court approval if it's closer to the other parent or if the new address is within the child's current school district. The parent is also able to move if there is an existing, valid protection order for the child or custodial parent against the noncustodial parent, or if the nonmoving parent has a conviction in the past 12 months for criminal assault, child abuse, or domestic violence.

If a custodial parent wants to move further away from the other parent, he or she will need to give the other parent written notice, which must meet specific requirements. The notice must be sent via certified mail to the other parent's last-known address no later than 45 days before the date of the proposed move. In some situations, the court may allow shorter notice if the parent can show a reason for the delay.

Unless the court has given the custodial parent permission to restrict personal information from the noncustodial parent (which can happen in some instances of domestic violence), the notice must contain the following information:

• the address and telephone number of the new residence
• the parent's purpose for relocating
• the reasons why a relocation is in the child's best interest, and
• the relocating parent's proposed visitation plan for the nonmoving parent.

If the notice doesn't meet the above requirements, the court may deny the relocation. If the notice is acceptable, and the other parent doesn't file an objection, the parent can relocate after 30 days. The court can and will grant the relocation without a hearing, so it's important for a noncustodial parent to file an objection within 30 days. The objection should include the reasons why it is not in the child's best interest to move.

What Does the Court Consider During a Relocation Hearing?

A noncustodial parent is always free to move despite the child staying in the same residence. The court understands that relocation should also be an option for a custodial parent and child. If the court finds that the move is in the child's best interest, it will approve the relocation. In one 1993 case, a custodial parent asked the court permission to relocate from South Dakota to Ohio. Although the move was going to interfere with the father's visitation with the child, the mother could provide a schedule to ensure that the father would have liberal visitation with the child in the summers, and on holidays, and she was willing to share all transportation costs for the visitation.

If the nonmoving parent doesn't agree with the relocation, they can ask the court to modify custody.

What Does the Court Consider Before Changing Custody?

If a parent wants the court to modify custody, they must show that there has been a substantial and material change in circumstances since the entry of the last custody order and that the change in custody is in the child's best interest.

A proposed relocation is generally not enough to prove a change in circumstances. In a 1996 case, a custodial mother moved 70 miles from the child's father. The father asked the court to modify custody and argued that the change of residence amounted to a substantial and material change in circumstances. The court disagreed and denied the change in custody.

If the court finds a proper change in circumstances, it will then evaluate a set of factors—called best interest factors—to determine if the change in custody is proper. The court will give both parents the same consideration regardless of the sex or age of the parent. In addition to the child's mental and moral welfare, the court will consider:

• the parent's mental and physical health
• the parent's ability to provide the child with protection, food, clothing, medical care, and other basic needs
• the parent's ability to give the child love, affection, guidance, and education
• the willingness of each parent to provide frequent and meaningful contact between the child and the other parent
• the relationship and interaction of the child with the parents, step-parents, and siblings
• the child's home, school, and community record
• the child's preference, if the child is mature and/or old enough to express an intelligent opinion
• any history of parental misconduct, and
• any other relevant factors.

There is no official test for the court to follow when determining a child's best interest, so the objecting parent must use the above factors to prove that it's not in the child's best interest to move. Parents can present documents and/or witness testimony to support their claims, and the court will gauge the credibility of each witness or piece of evidence presented at the hearing before making its final decision.

Relocation cases are legally and emotionally complicated. Not only do these situations involve changing residences and visitation schedules, you may also need to address modification of custody, which is difficult. If you want to relocate, or you object to a move, you should speak to an experienced family law attorney.