Custody

Updated:

December 21, 2022

What is custody (custodial responsibility)?

Custody, also called “custodial responsibility,” is defined by South Dakota law as all powers and responsibilities related to taking care of your child, known as caretaking authority, and making decisions on his/her behalf, known as decision-making authority. This includes physical and legal custody.¹

Generally speaking, these terms mean the following:

Caretaking authority is the actual physical care and supervision of your child. This includes the right to make day-to-day decisions about your child. .
Decision-making authority is the right and responsibility to make major decisions about your child. These decisions include the child’s education, religious training, health care, extracurricular activities, and travel.²

¹ SDCL § 25-4B-102(5)
²SDCL § 25-4B-102(6)

What is joint legal custody?

Joint legal custody means both you and the other parent have full parental rights and responsibilities over your child. This also means both parents will need to discuss and participate in big decisions related to the wellbeing of your child, such as:

the child’s primary residence;
child care, education, and extracurricular activities;
medical and dental care;
religious upbringing;
the child’s use of motor vehicles; and
any other responsibilities that the judge finds unique to a particular family or in the best interest of the child.¹

The judge can order joint legal custody after considering the desires of the parents and deciding it is in the best interest of your child. As part of the order, the judge could divide “ultimate decision-making power” between the parents or give it to just one of you.¹ Ultimate decision-making power means that if parents cannot agree on a particular issue, one of you will be able to have the final say on that matter.

If joint legal custody is awarded, it is expected that both parents have to foster the other parent’s relationship with the child.²

¹ SDCL § 25-5-7.1
² SDCL § 25-5-7.6

How is paternity established?

Paternity, also known as legal fatherhood, can be established at any time before the 18^th birthday of your child in the following ways:

Presumed- if the parents are married or your child is born within 10 months of the divorce, the husband is automatically assumed (“presumed”) to be the legal father.¹However, if the biological father is not the husband, then a three-way paternity affidavit can be signed by the mother, the biological father, and the husband.²
Voluntarily- both parents sign a paternity affidavit under oath. This could be done at the hospital/clinic when your child is born or later on at the South Dakota Department of Social Services, Department of Health, or the local Register of Deeds Office.
Involuntarily- either parent may start administrative or legal proceedings to establish paternity. This will usually include genetic testing.²

¹ SDCL § 25-5-3
² “Voluntary Paternity Establishment,” South Dakota Department of Social Services.

What are the standard parenting guidelines and how do they affect my case?

The South Dakota Supreme Court has established standard parenting guidelines, which generally apply to custody cases in the state.¹ These Guidelines try to solve some of the most common issues faced by separated parents, including:

parental communication,
schooling,
daycare,
social media,
communication with children, and
visitation.²

However, the Guidelines cannot overrule the provisions included in:

a domestic violence protection order;
an order arising out of an abuse or neglect proceeding;
a bond condition arising out of a criminal case; or
an order in any other proceeding affecting child custody or support.²

If you and the other parent reach a visitation agreement that does not follow these Guidelines, you should do so in writing. The agreed plan has to be signed by both parents and approved by the court to replace the standard parenting guidelines or any plan filed previously.³ If parents are unable to agree on a parenting plan and there is no other order regarding custody, the parenting guidelines become an order of the court once one party serves the other with papers for divorce or custody.⁴

¹ SDCL § 25-4A-9
² SDCL § 25-4A-14
³SDCL § 25-4A-12
⁴ SDCL § 25-4A-11

What is mediation? Is it ordered for victims of abuse?

If there’s an issue concerning custody or visitation between you and the other parent, the judge may order mediation to help you create, carry out, or change a plan for custody or visitation.

Mediation should not be ordered if:

there is a domestic abuse conviction;
there is an assault conviction, except if it’s against a person related by blood but not living in the same household;
there is a history of domestic abuse;
mediation is not readily available; or
the judge determines that mediation is not appropriate based on the specific circumstances of the case.¹

If mediation is ordered:

the cost of mediation will be distributed between you and the other parent;¹
the process will be private;
the mediator could exclude attorneys from participating in the proceedings;² and
any communication that is part of the proceeding, oral or written, is confidential and cannot be entered into evidence in any proceeding.³

If you and the other parent reach an agreement through mediation, the mediator will put it in writing and you and your attorney can review it before signing. Once an agreement is signed by both parents, it will be presented to the judge. The agreement will be binding once it is approved by order of the court.⁴

If no agreement is reached through mediation, the mediator will report this to the judge and may recommend that a full hearing about custody and visitation be held within 30 days.⁵

¹ SDCL § 25-4-56
² SDCL § 25-4-59
³ SDCL § 25-4-60
⁴ SDCL § 25-4-61
⁵ SDCL § 25-4-62

What does a parenting coordinator do?

If there is a custody or visitation dispute, the judge may appoint a parenting coordinator to help you resolve it.¹ You or the other parent can specifically request that a parenting coordinator is appointed or the judge can decide on his/her own. Who is appointed for this role can be decided by the parents and approved by the judge or the judge can decide who the parenting coordinator will be.²

The judge can order that the parenting coordinator do the following:

inform both parents of their role in the process;
monitor that the parenting plan is followed and resolve any minor issues that arise as long as they don’t involve a substantial change to the court order;
recommend strategies for putting the parenting plan in place or resolving parenting issues that are impacting the plan;
help you and the other parent develop better communication and cooperation so that you can effectively co-parent your child;
help you and the other parent to better foster ongoing relationships with your child;
help follow court orders and make recommendations to the judge regarding changing, clarifying, or enforcing a parenting time order;
not allow the parties’ attorneys to participate in parenting coordinator sessions;
put safeguards in place during the process when there are domestic violence concerns, such as no direct communication or no joint meetings, for example;
recommend community resources to you and the other parent;
make recommendations on day-to-day issues experienced by you and the other parent; and
other tasks specific to your case.³

However, even if there is a parenting coordinator appointed, the judge continues to be in charge of the case and is the only one with the legal power to make decisions related to child support, custody, or visitation.⁴

The fees and costs associated with a parenting coordinator will be covered by you and the other parent.⁵ It’s also important to know that these services are not confidential and the judge can order the parenting coordinator to testify as part of the court process.⁶

¹ SDCL § 25-4-63
² SDCL § 25-4-64
³ SDCL § 25-4-70
⁴SDCL § 25-4-72
⁵ SDCL § 25-4-69
⁶ SDCL § 25-4-74

Legal Information: South Dakota

South Dakota Custody