Custody

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: 

1. it’s likely that the child would suffer serious physical or emotional harm if s/he is placed in the parent’s custody;
2. the extended and unjustifiable absence of parental custody;
3. other people have had to provide for the child’s physical, emotional, and other needs for a long time; 
4. 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;
5. a child’s well-being has improved substantially under the care of the non-parent;
6. how long the parent has delayed trying to get back custody of the child;
7. the demonstrated quality of the parent’s commitment to raising the child;
8. how likely it is that the child will have stability and security in the future with the parent;
9. if the child’s education would be damaged while in the custody of the parent; or
10. 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