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Legal Information: South Dakota


Laws current as of November 28, 2023

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