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How are child custody and parenting time disputes decided in South Dakota?

South Dakota courts apply the “best interests of the child” standard to determine a custody arrangement between the parents. This standard examines what will be best for the children’s temporal, mental, and moral welfare by asking the following questions:

  • Do both parties display parental fitness?
  • Will one home provide a greater amount of stability?
  • Who is the primary caretaker?
  • What is the child’s preference?
  • Has either party displayed harmful parental misconduct?
  • Are there multiple siblings that the child should not be separated from?
  • Will giving one parent custody over the children pose a substantial change of circumstance?

When evaluating parental fitness, the courts may consider each parent’s:

  • Mental and physical health and wellbeing
  • Capacity and disposition to provide the children with basic needs such as food, protection, clothing, and medical care
  • Ability to give the children love, affection, guidance, education, and religious upbringing, if applicable
  • Willingness to maturely encourage and provide frequent, meaningful contact with the other parent
  • Commitment to prepare the children for a responsible adulthood while also providing a fulfilling childhood
  • Ability to model so that the children may experience firsthand what a good parent, loving spouse, and responsible citizen looks like

A court will not favor one of the factors above as the “ultimate factor” in making a child custody determination. Instead, a court will take a balanced and systematic approach to achieve what is truly best for the children involved in the divorce proceeding. Additionally, it is important to note that the judge hearing the case is not likely to consider a child’s preference unless the judge determines that the child is mature enough to make a well-reasoned decision.

The parents may share joint custody (both physical and legal), or one parent may be identified as the primary custodian. If this is the case, the parties will create a visitation schedule either by themselves or with the court’s assistance to ensure that the noncustodial parent still has an opportunity to spend time with their children.

In most circumstances, the parenting plan will allow for the children to have frequent and meaningful contacts with both parents and generally follow the South Dakota Parenting Guidelines.. Beginning this year, the South Dakota Supreme Court established a Commission on Parenting Guidelines tasked with reviewing the standard parenting guidelines set forward in SDCL §25-4A-10. The Commission will evaluate the parenting guidelines and then report recommendations and updates to the South Dakota Supreme Court, the Governor, and the Legislature every four years.

Custody decisions are greatly dependent on the unique facts of each family. If you have questions regarding what custody and parenting time orders may be ordered with respect to your family, consult with the family law attorneys at Woods Fuller, who will help you navigate these issues.

June 28, 2021

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