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Legal Information: South Dakota


November 28, 2023

Who has custody rights if parents are not living together?

Usually, parents can decide on any type of custody agreement that works for the family and benefits their child. However, if parents cannot agree on custody (custodial responsibilities), it’s possible that a custody case will need to be filed. 

The time leading up to when a custody order is issued is covered under South Dakota law. Generally speaking, if your child was born while you were married to the other parent, then you both are equally entitled to custody.1 However, if your child is born out of wedlock, the law says the mother is entitled to custody unless and until a court order says otherwise, based on the child’s best interest.This initial right to custody does not mean the judge will assume this arrangement is in the best interest of the child when making a custody order.3

SDCL § 25-5-7
2 SDCL § 25-5-10
3 SDCL § 25-5-10.1

What are some advantages and disadvantages of getting a custody order?

Some people decide not to get a custody order because they don’t want to get the courts involved. They may have an informal agreement that works well for them or may think going to court will provoke the other parent. 

However, getting a custody order can give you:

  1. the right to make decisions about your child; and
  2. the right to have your child live with you.

If you decide not to get a custody order, then you and the other parent likely have equal rights to making decisions and living arrangements. The exception to this is when paternity has not been legally established. To consider if paternity has been established in your specific case, you can see the information in How is paternity established?

How will a judge make a decision about custody?

To make a decision about custody, the judge will consider what is called the “best interest of the child.” There are six categories the judge should consider within that best interest standard: 

  1. Child’s preference- if your child is old enough to form an intelligent decision;1
  2. Fitness- which parent is better equipped to provide for your child’s temporal, mental, and moral welfare.1Some factors include: 
    1. mental and physical health of each parent;
    2. capacity and willingness to provide for the child’s basic needs, including protection, food, clothing, and medical care; 
    3. ability to give the child love, affection, guidance, education, and religion;
    4. willingness to maturely encourage and provide frequent and meaningful contact between your child and the other parent; 
    5. commitment to prepare your child for responsible adulthood; and
    6. which parent would be an example to your child so that s/he can witness what it means to be a good parent, a loving spouse, and a responsible citizen;
  3. Stability- which parent can provide a stable and consistent home environment. This includes: 
    1. the relationship and interaction of your child with his/her parents, step-parents, siblings, and extended family;
    2. your child’s adjustment to home, school, and the community;
    3. the parent with whom your child has formed a closer attachment; and
    4. the continuity of your child’s custodial setting;
  4. Primary caretaker- who is more committed and involved in parenting your child. The primary caretaker can be identified by determining which parent consistently spends more time taking care of your child;
  5. Siblings- assuming that siblings should not be separated unless there are convincing (compelling) circumstances to do so; and
  6. Harmful parental misconduct- only if the parental misconduct is specifically harmful to the child.2

The judge can also order an investigation to help him/her decide on custody and visitation. The cost of this investigation will be divided between the parents.3

SDCL § 25-4-45
Fuerstenberg v. Fuerstenberg, 591 N.W.2d 798, 807, 1999 S.D. 35
3 SDCL § 25-4-56

How will the judge decide whether to grant joint physical custody?

At the request of either parent, the judge will consider awarding joint physical custody.1 If you and the other parent agree on joint physical custody, the judge doesn’t need to consider the factors included below.2 However, if one parent does not agree to joint physical custody, the judge may consider the following factors to make his/her ruling:

  1. whether each of you is suited for physical custody of your child and has an appropriate home for the child;
  2. if your child will suffer psychologically, emotionally, or developmentally if s/he doesn’t have active contact and attention from you and the other parent through joint custody; 
  3. if one parent has denied the other parent the opportunity of continuing contact with your child without a good reason to do so, legally referred to as “just cause”;
  4. whether you and the other parent can communicate effectively with each other regarding your child and can show respect for each other; 
  5. the extent to which both parents actively care for the child;
  6. whether you and the other parent can support your child’s relationship with each other;
  7. considering your child’s age, maturity, and reasoning, what are your child’s wishes or feelings regarding joint physical custody;
  8. if you or the other parent has intentionally alienated or interfered with the other parent’s relationship with the child;
  9. if one of the parents doesn’t agree with joint custody;
  10. how close the parents live to each other;
  11. if the safety of you, your child who is the subject of the case, or your other children will be at risk if joint physical custody is awarded;
  12. if you or the other parent allows a registered sex offender to have custody or control over your child;
  13. if you or the other parent tried to influence the custody process by falsely or without reason alleging that your child or his/her sibling has been the victim of physical or sexual abuse or neglect;
  14. each parent’s physical and mental ability to provide mental and moral wellness for your child;
  15. the ability and readiness of the parent to protect your child and provide food, clothing, medical care, and other basic needs; 
  16. the ability and willingness of the parent to provide love, affection, guidance, and education in order to nurture the family’s religion or faith;
  17. if the parent is committed to prepare the child for responsible adulthood, as well as to ensure that s/he experiences a fulfilling childhood; 
  18. if the parent can be a good model for the child as to what it means to be a good parent, loving spouse, and a responsible citizen;
  19. whether a parent can provide a stable and consistent home environment, including the relationship and interaction of the child with the parents, step-parents, siblings, and extended family;
  20. how well adjusted your child is to the home, school, and community; 
  21. if a break in attachment with the parent to whom the child has form a closer bond would be harmful because of the break in continuity for the child; and
  22. if the parent is guilty of misconduct that might have a harmful effect on the child.3

There is not a presumption of joint physical custody, which means the judge will not automatically assume that it is the best option. The judge will decide based on the best interests of the child.4 Before deciding on joint custody, the judge can require a home study or custody evaluation for the parents. Either parent may also request mediation prior to the judge ruling on joint physical custody.5

1 SDCL § 25-4A-21
2 SDCL § 25-4A-25
3 SDCL § 25-4A-24
4 SDCL § 25-4A-26
5 SDCL § 25-4-45.3

How does military deployment affect the judge’s decision on custody?

When deciding on custody, the judge cannot consider a parent’s past or future deployment in determining the best interest of the child. However, the best interest standard can be reconsidered if after the parent’s return from deployment, the parent or child shows a substantial and material change in circumstances that affects that parent’s ability to adequately care for the child.1

1 SDCL § 25-4B-107

What are the steps for filing for custody?

Before filing in court for custody, you may want to consider drawing up an out-of-court agreement with the other parent. Usually, parents will have to be flexible when it comes to custody and visitation for the benefit of the child. Often times, parents who fight for sole custody will litigate in court for months or even years and end up with some sort of joint custody agreement after settlement or trial. However, sometimes fighting for sole custody is necessary because you can’t agree with the other parent, the other parent is not allowing contact, or you fear for your child’s well-being. Especially with domestic violence, many abusers will try to keep power and control over the victim-survivor through the child, so joint custody isn’t recommended due to the power difference in the relationship. 

If you decide to file in court for custody, although custody laws vary by state, the process usually looks similar to this:

  1. File for custody. Depending on the state, you may file in the family court or a court of a different name that hears custody cases. Generally, you will file in the county where the child lives and, depending on the circumstances, you may be able to request an emergency or temporary order as part of your petition. The exact petition you file may depend on whether you are married or not:
    • If you are a married parent who is also filing for divorce, you can usually include the custody petition within the divorce process.
    • If you are a married parent who is not filing for divorce, you can file for custody on its own.
    • If you are an unmarried parent, you can also seek custody in court. However, if paternity hasn’t been established, which means that the father hasn’t been legally recognized, then this process will likely have to happen first or as part of the custody process.

When there’s a custody issue within a divorce process or on its own, the plaintiff has to also file and serve the defendant with a copy of the standard parenting guidelines. These guidelines are considered an order of the court once service is completed. The child will stay under the custody of the parent who was the primary caregiver in the 12 months before the filing unless parties agree otherwise. These guidelines will continue in effect from service and until the parties agree or the court rules otherwise.1

     2.  Prepare for the custody process

The court custody process is usually very long and can be emotionally and financially draining. If you are representing yourself in court, you can learn about the court process and how to present evidence on our Preparing for Court – By Yourself section. If you are able to hire an attorney, you can use this list of questions as your guide when deciding who to hire.  

During the court process, you will try to prove why you should have your child’s custody. When preparing for court, you can gather evidence that helps make your case as to why you should have custody of the child. This process should be directed by the factors the law says a judge should consider when deciding custody. You can see How will a judge make a decision about custody? for more information. It’s important to consider that the judge will be focused on what is in the best interest of your child and many states consider that this is to have a relationship with both parents.

     3.  Prepare for trial

There will be one or more hearings, including a trial, if the parties cannot reach an agreement by themselves or as part of a mediation process.  During trial, you or your attorney will be able to present evidence and to cross-examine the other party to help the judge make a decision.  

If you are a victim of domestic violence, you can plan for your safety while in court and you should ask the judge to include some protections in the custody order. For example, you can ask for some of the following terms:

  • communications between the parents can only be in writing;
  • all communications can only be related to the child; and 
  • a neutral third party should be present at the exchange of the child or should be the one to drop off and pick up the child.

You should also try to be as specific as possible in terms of the decision-making powers of each parent, who has the child on holidays, birthdays, etc., and the time and place for pick-ups and drop-offs of the child as to avoid future conflicts. 

     4.  Options if you lose the custody case

There could be a couple of options that are filed immediately after the judge makes the custody order:

  • motion for reconsideration asks the judge to decide differently based on the law or new evidence. 
  • An appeal moves the case to a higher court and asks that court to review the lower court’s decision due a judge’s error. 

A petition to change (modify) the order is an option that would not be filed right away. You could ask for a modification if, later on, a substantial change of circumstances happens. A few examples could be if the other parent gets sent to jail, gets charged with child abuse or neglect, or moves to another state. 

You can also watch our Custody, Visitation, and Child Support videos where we explain the process.  The videos include information about the different types of custody and visitation and related legal concepts that a judge will consider, as well as information about child support, and moving out of state with your child.

1 SDCL § 25-4A-11

Do I need a lawyer?

You do not need a lawyer to file for custody. However, it is highly recommended that you get a lawyer to make sure that your rights are protected. If you cannot afford a lawyer, you may be able to find sources of free or low-cost legal help on our SD Finding a Lawyer page. Even if you plan on representing yourself, a lawyer might be able to provide legal counsel on options available in your specific case or review your papers before you file them.

If you are going to be in court without a lawyer, our Preparing for Court – By Yourself section may be useful to you.