Splitting up with your spouse or partner is challenging, especially when you have minor children. You have to manage your emotions and divide your property while also figuring out where your children will live and who will make important decisions about their upbringing. Here's an overview of how South Dakota law deals with these issues.
There are two types of child custody in South Dakota: legal and physical custody.
Legal custody refers to the legal authority to make decisions for your children on issues like medical care, religious upbringing, and education. When parents have joint legal custody, they both have a right to be involved in this decision-making process. When one parent has sole legal custody, that parent may make decisions unilaterally, without the other parent's consent.
When parents share joint legal custody in South Dakota, that doesn't necessarily mean they'll each have an equal say in every decision. A judge may order, or the parents may agree, to assign either parent the "ultimate responsibility" in certain areas. For example, one parent may get to decide where the kids go to school, while the other parent is in charge of medical and dental care. (S.D. Codified Laws § 25-5-7.1 (2024).)
Physical custody (called "parenting time") refers to the time children spend in each parent's care.
When a parent has primary physical custody (called "sole physical custody" in some states), the children live with that parent (the custodial parent), while the noncustodial parent has visitation time.
If either parent asks, a judge must consider granting joint physical custody in South Dakota. But unlike some states, South Dakota law doesn't presume that joint physical custody is what's best for kids. (S.D. Codified Laws §§ 25-4A-21, 25-4A-26 (2024).)
When parents have joint physical custody, the children spend a substantial (but not necessarily equal) amount of time living with each parent. This arrangement typically works best when parents live close enough to each other that the children can travel between their homes without disrupting their attendance at school or extracurricular activities.
When children split their time between their parents (spending at least 180 nights per calendar year at each house), it's called shared parenting. Shared parenting requires the parents to share the duties and expenses of parenting their children in proportion to their incomes. (S.D. Codified Laws § 25-7-6-.27 (2024).)
When you file for divorce in South Dakota and have children, the custody issue will be resolved as part of the divorce. You can find forms for divorces involving minor children on the South Dakota Legal Self-Help website.
In South Dakota, when a child is born to parents who aren't married, the mother is entitled to custody. However, the other parent may ask the court for a new custody order, "considering the best interests of the child as to its temporal, mental, and moral welfare." (S.D. Codified Laws § 25-5-10 (2024).)
During a divorce or custody proceeding, children remain with the parent who has been the primary caregiver for the prior 12 months, and the standard guidelines for parenting time will apply, unless the parents agree otherwise (more below on those guidelines). (S.D. Codified Laws § 25-4A-11 (2024).)
In any case involving custody or parenting time, both parents have to participate in a court-approved parenting course. (S.D. Codified Laws § 25-4A-32 (2024).)
You may agree with your co-parent on how you'll handle legal custody and parenting time. You'll have to put the plan in writing, sign it, and submit it to the court for a judge to approve. (S.D. Codified Laws § 25-4A-12 (2024).)
Parents in South Dakota have a real incentive to work together to come up with a mutually agreeable plan. If they don't, a judge will use the South Dakota Parenting Guidelines as the legally enforceable parenting plan. The guidelines are very detailed schedules based on factors like the children's age, the parents' caregiving routines, how far away the parents live from each other, and existing school and childcare arrangements.
However, you may file a written objection to the use of the guidelines. The judge will then hold a hearing and decide what's best for the children (more on those decisions below). (S.D. Codified Laws §§ 25-4A-9, 25-4A-10, 25-4A-11, 25-4A-13 (2024).)
In any custody or visitation dispute, a judge may order, or either parent may request, the appointment of a parenting coordinator. The parenting coordinator's job is to help parents work together to develop and implement an effective parenting plan. Parents may agree on who to use as a parenting coordinator (subject to approval by a judge) or a judge may appoint one. (S.D. Codified Laws §§ 25-4-63, 25-4-64, 25-4-70 (2024).)
Parents who can't agree on a parenting plan may also participate in custody mediation. In fact, South Dakota law requires court-ordered mediation in all custody disputes, unless it isn't readily available or the judge decides it isn't appropriate under the circumstances. A judge may not order mediation in any case where a parent has a history of, or certain prior convictions related to, domestic violence. (S.D. Codified Laws § 25-4-56 (2024).)
Before ruling on a joint physical custody request, a judge may require both parents to participate in a home study or custody evaluation. (S.D. Codified Laws § 25-4A-23 (2024).)
When parents can't agree on custody and parenting time, a judge will have to resolve the dispute. In South Dakota, as in all states, judges make custody decisions based on what's in the best interests of the child. (S.D. Codified Laws §§ 25-4-45 (2024).)
Unlike many other states, South Dakota's laws don't include a specific list of "best interest factors" that judges must consider when making any custody decisions (except when one parent has requested joint physical custody, as discussed below). However, the South Dakota Supreme Court has outlined several "guiding principles," including:
Not all factors will apply in all cases, and judges may need to consider other relevant circumstances in some cases. (Fuerstenberg v. Fuerstenberg, 591 N.W.2d 798 (S.D. 1999).)
In South Dakota, a judge must consider joint physical custody if either parent requests it. When the parents can't agree, the judge must decide what would be in the child's best interests after considering several factors, including:
South Dakota judges may take consider a child's custody preference, as long as the child is old enough to have an "intelligent" opinion on the issue. (S.D. Codified Laws § 25-4-45 (2024).)
However, judges don't have to follow a child's custody wishes, and they'll always be on alert for signs that a parent has coached the child.
In South Dakota, visitation is called "noncustodial parenting time." Using the state's parenting guidelines as a minimum jumping-off point, parents are encouraged to come up with a parenting plan that's reasonable, in the children's best interests, and includes a detailed schedule of when the children will spend time with each parent, including holidays and vacations.
The guidelines don't cover shared parenting (when children stay with each parent for at least 180 nights per year). But the court publishes a sample schedule parents can use to create a shared parenting plan.
If you can't agree on a visitation schedule, the judge will decide the schedule for you, probably based on the guidelines.
South Dakota takes a tough stance on domestic violence and abusive parents. Before awarding custody, a judge must consider any past domestic violence convictions or history of abuse and presume that awarding the abusive parent custody or joint custody isn't in the child's best interests. (S.D. Codified Laws § 25-4-45.5, 25-4A-22 (2024).)
South Dakota judges must also consider whether a person seeking custody has ever made a false or unsupported accusation of abuse in an attempt to influence a custody decision. (S.D. Codified Laws § 25-4-45.8 (2024).)
As your kids get older and schedules change, you may need to make changes to your parenting plan.
As always, you and your child's other parent are free to agree on a new custody and parenting plan, but the existing orders will remain in effect until a judge approves your modified plan. To make the change official, you'll have to file a petition with the court asking for a modification, along with your agreement.
Without an agreement, the requirements for a custody modification are different, depending on the circumstances:
Both parents have a legal obligation to follow custody and visitation orders. A parent who fails to abide by the court order risks being found in contempt of court. (S.D. Laws § 25-4A-1 (2024).)
Potential penalties for violating custody and visitation orders include:
In cases involving multiple or aggravating violations, a judge may modify the existing custody and visitation situation. (S.D. Laws § 25-4A-5 (2024).)
A parent who's been held in contempt of court for violating a custody or visitation order may also be placed on probation for up to five years. (S.D. Laws § 25-4A-6 (2024).)
Learn more about parenting time enforcement in South Dakota, including how to ask the court to enforce an order and what to expect at a hearing in front of the judge.
If you can, try to avoid a court battle over child custody. Drawn-out legal cases can cost a lot of time and money and cause anxiety for parents and children. In most cases, the best approach is to work with your child's other parent to agree on a parenting plan. You can work with a parenting coordinator or mediator if you need help reaching an agreement.
If you can't agree on what's best for your child or need help enforcing or modifying an existing custody order, you should consider talking with a family law attorney. An attorney can help you understand your rights and responsibilities under South Dakota law, so that you can figure out the best way forward for you and your child.