A judge's goal in a custody dispute is to make a “balanced and methodical” assessment of a child's best interests. The court will consider several factors to determine what is best for the child mentally, physically, and emotionally. Your family's unique circumstances will determine the outcome of your case.
This article provides an overview of custody and the best interests of the child factors in South Dakota. If you have questions after reading this article, contact a local family law attorney for advice.
Parents can reach custody agreements on their own or with a mediator's help. In either case, a judge will review the agreement to ensure it meets the child's needs before entering it as an order of the court. When parents are unable to reach a compromise on custody, their case will have to go to trial and a judge will decide both legal and physical 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.
Parents can share legal custody (called “joint legal custody”) or one parent may have sole decision-making rights over a child. In most cases, it's appropriate for both parents to have an active role in a child's upbringing through shared legal custody.
“Physical custody” refers where the child lives. A parent with primary physical custody (also called the “custodial parent”) will spend most of the time with the child.
The other parent (called the “noncustodial parent”) is entitled to regular visits including weeknights, alternating weekends, and school and summer holidays. Like legal custody, parents may share physical custody or one parent may be awarded sole physical custody rights over the child.
Parents can create their own visitation plans or let a judge decide. Even when parents can't agree on a custody and visitation plan, each parent should submit a parenting plan to the court.
A parenting plan will outline each parent's child-related responsibilities, identify where the child will live, and set a visitation schedule, which should describe how transportation costs (if any) will be paid. A parenting plan may also establish where the child will attend school and who will be the child's dentist and doctor.
Your visitation schedule contained in the parenting plan will address visitation on weekends, midweek, holidays, and school vacations. For example, the child may visit the noncustodial parent on alternate weekends, for two nights during the week, or for one week each month.
Your visitation order will govern all child exchanges and neither parent can withhold visitation set forth in the court order. Your holiday visitation schedule will establish where the child spends major holidays like Thanksgiving and Christmas or Hanukkah.
Parents typically alternate holidays in even and odd years. As long as the proposed plan is in the best interests of the child, the judge will likely approve it an adopt as an order of the court.
A child's needs are central to any custody decision. When parents can't agree, a judge will decide the arrangement best suited to the child's emotional, educational, and physical needs.
The court will consider your family's overall circumstances and each parent's ability to provide a stable environment for the child. Specifically, a judge may examine the following:
Additional factors include each parent's fitness and stability, which parent has been the primary caretaker, the quality of communication between the parents, and which parent is more likely to encourage a relationship between the child and the other parent.
When deciding joint custody, a judge will also examine the parents' relationship, the parents' geographical proximity, and the child's emotional well-being. See S. D. Codified Laws § 25-4A-24 (2020).
Separating parents may wonder how old a child must be before the child can decide to live with another parent. In South Dakota, a court may consider a child's opinion on custody if the child is old enough and mature enough to state a custodial preference.
South Dakota child custody laws don't prescribe a certain age when a child's preference may be considered. Judges have broad discretion when deciding how much weight to give the child's preference.
In some South Dakota custody cases, judges have considered the well-reasoned preferences of children as young as 10. Children under 10 are generally considered too immature to form a parental preference.
While a judge may consider the preference of a mature, older child, even then, the child's preference isn't binding on the outcome of your case. Ultimately, a child's best interests—not his or her custody wishes—will determine what kind of custody arrangement is appropriate.
Following a custody trial and after reviewing all information relevant to the child's best interests, a judge will make an order for physical custody and legal custody of the child. Once the judge issues a custody order, the custody and visitation order stays in place until its modified or the child turns 18 or is emancipated.
Either parent can seek a custody modification by showing there's been a “substantial change in circumstances” affecting the child's best interests. Generally, a parent's relocation across town or a new baby isn't enough to justify a change in custody.
However, major, permanent changes like a parent's cancer diagnosis, international relocation, or constant work travel, are likely enough to show that a change in custody is necessary.