How Domestic Violence Affects Child Custody in South Dakota

Although life with an abusive partner sometimes plays out like a TV drama, it does not need to end tragically. Like many other states, South Dakota takes domestic violence seriously and provides resources and protections to victims and their families. Depending on the severity and frequency of domestic violence, an abusive parent may have restrictions placed on his or her visitation. A parent who is guilty of chronic abuse may even lose his or her parental rights altogether.

This article provides an overview of the impact of domestic violence on custody orders in South Dakota. If after reading this article you have questions, contact a local family law attorney for advice.

Domestic Violence Basics

Domestic violence can leave visible bruises or hidden emotional wounds. South Dakota law defines domestic violence (also called "domestic abuse") as the infliction of physical harm, bodily injury, or threats to harm or injure a household member. Under South Dakota's domestic abuse law, the following individuals are household members:

• current or former spouses
• relatives through blood, marriage, or adoption
• unrelated persons who live together or lived together in the same household, or
• persons who share a child together.

Protection orders

Some situations require a protection order to end the cycle of abuse. You can file for a protection order with or without the help of an attorney. Forms are available through the South Dakota Unified Judicial System. A judge will hold a hearing on your case and will determine if a protection order is needed to protect you or your child from future abuse. As part of the protection order, a judge may also establish temporary custody or visitation rights. In South Dakota, protection orders may last up to 5 years.

Resources for domestic violence victims

South Dakota offers numerous resources for victims of domestic violence and their families. Shelter and safety information is available through the South Dakota Network Against Family Violence and Sexual Assault. Additionally, South Dakota maintains a 24-hour domestic violence hotline at 1-800-430-SAFE (7233) for those in immediate danger.

Child Custody Orders in South Dakota

South Dakota takes a tough stance on domestic violence and abusive parents. The goal in a custody case is to provide the safest and most secure physical custody (where child lives) and legal custody (decision-making power on child's behalf) environment for the child involved. Before awarding custody, South Dakota requires a judge to consider any past domestic violence convictions or history of abuse and presumes that awarding custody to an abusive parent is not in a child's best interests. Learn more about Child Custody in South Dakota.

Effects of Domestic Violence on Custody in South Dakota

Before an abusive parent may receive custody, he or she must prove to a judge that the child would be safe in his or her care and that such an award would be in the child's best interests. A number of factors are evaluated by a judge including a parent's history of abuse and a child's safety in an abusive parent's care. Even a single incident of domestic violence resulting in a protective order presents an uphill battle for an abusive parent trying to obtain custody of his or her child.

Supervised visitation

A possible restriction for an abusive parent is a requirement that any visitation with his or her child be supervised by a designated third-party adult or agency. A supervised visitation restriction may be short-term with a definite end date or a long-term requirement. Nevertheless, unlike a termination of parental rights, supervised visitation restrictions are usually temporary and can be lifted with a demonstration of good behavior and proof that unsupervised, regular visitation would serve the best interests of the child.

Termination of parental rights

The termination of parental rights is a severe penalty that once ordered, cannot be undone. Parental rights will only be terminated in the most severe cases of abuse or neglect, and the termination must serve the best interests of the child. Situations that could lead to a termination of parental rights include:

• sexual abuse of any child
• severe child abuse or torture resulting in bodily injury to the child or sibling of the child
• parental rights to another child were terminated
• documented history of abuse or neglect due to chronic alcohol or drug abuse
• failure to protect or exposure of child to substantial harm, and
• criminal conduct resulting in long-term imprisonment and inability to care for the child.

If you have additional questions about the impact of domestic violence on custody rights in South Dakota, contact a local family law attorney for advice.