Who can get custody of the child?
The law assumes (presumes) that the best interest of your child is to be in the care, custody, and control of his/her parent(s).1 Which parent will have custody or if custody will be shared between both parents will be based on what the judge believes is in the best interest of the child. For more information about the “best interest factors” that a judge will rely upon, you can see the question How will a judge make a decision about custody?
However, in certain circumstances, a non-parent can get custody. See Can a non-parent get custody of the child? for more information.
1 SDCL § 25-5-29
Can an abusive parent get custody or visitation?
Even though the judge has to consider any abuse history, it is possible that an abusive parent can get custody or visitation.
When a judge is deciding custody, s/he should consider all of the following:
- a domestic abuse conviction;
- an assault conviction, except if it’s against a person related by blood but not living in the same household;
- a history of domestic abuse;1 and
- the conviction of one parent for the death of the other, except in vehicular homicide.2
If there is a conviction or history of domestic abuse or a conviction of causing the death of the other parent, the judge will assume (presume) that giving custody to the abusive parent is not the best interest of the child. However, this is only a “rebuttable presumption,” which means the abuser can show evidence to try to convince the judge to change his/her mind.3
When it comes to visitation, the law only mentions that the judge will consider the conviction of one parent for the death of the other, except in vehicular homicide.2 The law does not specifically say that the judge has to consider the other factors listed above when deciding visitation.
1 SDCL § 25-4-45.5
2 SDCL § 25-4-45.6
3 SDCL §§ 25-4-45.5; 25-4-45.6
If my child was conceived from rape, can the offender get custody or visitation?
If the judge believes that there is “clear and convincing evidence” that your child was conceived as a result of rape or incest, the judge will assume (presume) that the offender should not get custody or visitation. However, this is a “rebuttable presumption,” which means the offender can show evidence to convince the judge that s/he should have custody or visitation rights for your child. If the offender already had visitation rights, the judge can take those away (“revoke” them).1
1 SDCL § 25-4A-20
Can a grandparent get visitation of the child?
The judge can give grandparents and great-grandparents visitation rights if s/he believes this would be in the best interest of the child and one of the following is true:
- the visitation will not significantly interfere with the parent-child relationship; or
- the parent or custodian has denied or prevented the grandparent from the opportunity to visit the grandchild.1
1 SDCL § 25-4-52
Can a non-parent get custody of the child?
A judge can allow a non-parent to join (intervene in) an ongoing custody case or to file his/her own petition in court for custody or visitation of a child for whom s/he:
- has been a primary caretaker;
- has closely bonded as a parental figure; or
- has otherwise formed a significant and substantial relationship.1
Even though the law assumes (presumes) that the best interest of your child is to be in the care, custody, and control of his/her parent(s), a non-parent can win this right to custody if it is proven that:
- the parent has abandoned or continuously neglected his/her child;
- the parent has surrendered his/her parental rights to any person other than the other parent;
- the parent has abandoned (abdicated) his/her parental rights and responsibilities; or
- there are other extraordinary circumstances that would result in serious harm (detriment) to the child if custody is awarded to the parent, including:
- it’s likely that the child would suffer serious physical or emotional harm if s/he is placed in the parent’s custody;
- the extended and unjustifiable absence of parental custody;
- other people have had to provide for the child’s physical, emotional, and other needs for a long time;
- there is a bond between the child and a non-parent that is strong enough that it would cause significant emotional harm to the child if there were a change in custody;
- a child’s well-being has improved substantially under the care of the non-parent;
- how long the parent has delayed trying to get back custody of the child;
- the demonstrated quality of the parent’s commitment to raising the child;
- how likely it is that the child will have stability and security in the future with the parent;
- if the child’s education would be damaged while in the custody of the parent; or
- any extraordinary circumstance that would substantially and significantly affect the welfare of the child.2
1 SDCL § 25-5-29
2 SDCL §§ 25-5-29; 25-5-30