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Statutes: South Dakota

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Statutes: South Dakota

Updated: 
November 28, 2023

Current through the 2023 Regular Session and Supreme Court Rule 23-17. Please check to make sure there have been no changes since this time. You will find these and additional statutes on the South Dakota Legislature Legislative Research Counsel website.

Title 16. Courts and Judiciary

Updated: 
November 28, 2023

Chapter 16-12c. Clerk Magistrates

Updated: 
November 28, 2023

16-12C-13. Jurisdiction--Noncontested proceedings with limited damage amount

Updated: 
November 28, 2023

A magistrate court with a clerk magistrate presiding has concurrent jurisdiction with the circuit courts, in noncontested civil actions or noncontested small claims proceedings where the amount of money or damage does not exceed twelve thousand dollars, to take the necessary evidence and to enter a judgment.

Title 21. Judicial Remedies

Updated: 
November 28, 2023

Chapter 21-65. Protection of Vulnerable Adults

Updated: 
November 28, 2023

21-65-1. Definitions

Updated: 
November 28, 2023

Terms used in this chapter mean:

(1) “Attorney-in-fact,” an agent under a power of attorney pursuant to chapter 59-2 or an attorney-in-fact under a durable power of attorney pursuant to § 59-7-2.1 or chapter 59-12;

(2) “Caretaker,” a related or nonrelated person who has the responsibility for the health or welfare of a vulnerable adult as a result of assuming the responsibility voluntarily, by contract, by receipt of payment for care, or by order of the court;

(3) “Conservator,” as defined in subdivision 29A-5-102(2);

(4) “Vulnerable adult abuse,” any of the following:

(a) Physical abuse as defined in subdivision 22-46-1(7);

(b) Emotional and psychological abuse as defined in subdivision 22-46-1(4);

(c) Neglect as defined in subdivision 22-46-1(6) and § 22-46-1.1; or

(d) Financial exploitation;

(5) “Family or household member,” a spouse, a person cohabiting with the vulnerable adult, a parent, or a person related to the vulnerable adult by consanguinity or affinity, but does not include children of the vulnerable adult who are less than eighteen years of age;

(6) “Fiduciary,” a person or entity with the legal responsibility to make decisions on behalf of and for the benefit of a vulnerable adult and to act in good faith and with fairness. The term, fiduciary, includes an attorney in fact, a guardian, or a conservator;

(7) “Financial exploitation,” exploitation as defined in subdivision 22-46-1(5) when committed by a person who stands in a position of trust or confidence;

(8) “Guardian,” as defined in subdivision 29A-5-102(4);

(9) “Peace officer,” as defined in subdivision 23A-45-9(13);

(10) “Petitioner,” a vulnerable adult who files a petition pursuant to this chapter, and includes a substitute petitioner who files a petition on behalf of a vulnerable adult pursuant to this chapter;

(11) “Present danger of vulnerable adult abuse,” a situation in which the respondent has recently threatened the vulnerable adult with initial or additional abuse or neglect or the potential for misappropriation, misuse, or removal of the funds, benefits, property, resources, belongings, or assets of the vulnerable adult combined with reasonable grounds to believe that abuse, neglect, or exploitation is likely to occur;

(12) “Pro se,” a person proceeding on the person’s own behalf without legal representation;

(13) “Stands in a position of trust or confidence,” the person has any of the following relationships relative to the vulnerable adult:

(a) Is a parent, spouse, adult child, or other relative by consanguinity or affinity of the vulnerable adult;

(b) Is a caretaker for the vulnerable adult; or

(c) Is a person who is in a confidential relationship with the vulnerable adult. A confidential relationship does not include a legal, fiduciary, or ordinary commercial or transactional relationship the vulnerable adult may have with a bank incorporated pursuant to the provisions of any state or federal law; any savings and loan association or savings bank incorporated pursuant to the provisions of any state or federal law; any credit union organized pursuant to the provisions of any state or federal law; any attorney licensed to practice law in this state; or any agent, agency, or company regulated under title 58 or chapter 36-21A;

(14) “Substitute petitioner,” a family or household member, guardian, conservator, attorney in fact, or guardian ad litem for a vulnerable adult, or other interested person who files a petition pursuant to this chapter; and

(15) “Vulnerable adult,” a person sixty-five years of age or older who is unable to protect himself or herself from abuse as a result of age or a mental or physical condition, or an adult with a disability as defined in § 22-46-1.

21-65-2. Petition for relief from vulnerable adult abuse--Affidavit--Contents

Updated: 
November 28, 2023

A vulnerable adult or a substitute petitioner may seek relief from vulnerable adult abuse by filing a petition and affidavit in the circuit court or in a magistrate court with a magistrate judge presiding. Venue is where either party resides. The petition and affidavit shall include all of the following:

(1) The name of the vulnerable adult and the name and address of the vulnerable adult’s attorney, if any. If the vulnerable adult is proceeding pro se, the petition shall include a mailing address for the vulnerable adult;

(2) The name of the substitute petitioner if the petition is being filed on behalf of a vulnerable adult, and the name and address of the attorney of the substitute petitioner. If the substitute petitioner is proceeding pro se, the petition shall include a mailing address for the substitute petitioner;

(3) The name and address, if known, of the respondent;

(4) The relationship of the vulnerable adult to the respondent;

(5) The nature of the alleged vulnerable adult abuse, including specific facts and circumstances of the abuse;

(6) The name and age of any other individual whose welfare may be affected; and

(7) The desired relief, including a request for temporary or emergency orders. A petition for relief may be made whether or not there is a pending lawsuit, complaint, petition, or other action between the parties. However, if there is any other lawsuit, complaint, petition, or other action pending between the parties, any new petition made pursuant to this section shall be made to the judge previously assigned to the pending lawsuit, petition, or other action, unless good cause is shown for the assignment of a different judge.

If a petition for a protection order alleging the existence of vulnerable adult abuse is filed with the court pursuant to this section and if the court, upon an initial review, determines that the allegations do not support the existence of vulnerable adult abuse, but that the allegations do support the existence of stalking or physical injury pursuant to § 22-19A-8 or domestic abuse pursuant to § 25-10-3, the court may hear and act upon the petition as though the petition had been filed under § 22-19A-8 or § 25-10-3 and subject to the provisions of the respective chapters.

21-65-3. Ex parte temporary protection order

Updated: 
November 28, 2023

If an affidavit filed with a petition under § 21-65-2 alleges that the vulnerable adult is in present danger of vulnerable adult abuse before an adverse party or his or her attorney can be heard in opposition, the court may grant an ex parte temporary protection order pending a full hearing and grant relief as the court deems proper, including an order:

(1) Restraining any person from committing vulnerable adult abuse; and

(2) Excluding any person from the dwelling or the residence of the vulnerable adult.

21-65-4. Rights of vulnerable adult in action brought by substitute petitioner

Updated: 
November 28, 2023

If a substitute petitioner files a petition pursuant to § 21-65-2 on behalf of a vulnerable adult, the vulnerable adult retains the right to all of the following:

(1) To contact and retain counsel;

(2) To have access to personal records;

(3) To file objections to the protection order;

(4) To request a hearing on the petition; and

(5) To present evidence and cross-examine witnesses at the hearing.

21-65-6. Guardian ad litem

Updated: 
November 28, 2023

Pursuant to § 15-6-17(c), the court may on its own motion or on the motion of a party appoint a guardian ad litem for a vulnerable adult if justice requires. The vulnerable adult’s attorney may not also serve as the guardian ad litem.

21-65-7. Hearing on petition--Service of process

Updated: 
November 28, 2023

Upon receipt of the petition, if sufficient grounds are alleged for relief, the court shall order a hearing which shall be held not later than thirty days from the date of the order unless the court grants a continuance for good cause. Personal service of the petition, affidavit, and notice for hearing shall be made on the respondent not less than five days prior to the hearing.

Upon application of a party, the court shall issue subpoenas requiring attendance and testimony of witnesses and production of papers.

The court shall exercise its discretion in a manner that protects the vulnerable adult from traumatic confrontation with the respondent.

Hearings shall be recorded.

Upon application, notice to all parties, and hearing, the court may modify the terms of an existing protection order.

21-65-8. Continuance of ex parte temporary protection order

Updated: 
November 28, 2023

An ex parte temporary protection order is effective for a period of thirty days except as provided in § 21-65-9 unless the court grants a continuance for good cause. No continuance may exceed thirty days unless the court finds good cause for the additional continuance and:

(1) The parties stipulate to an additional continuance; or

(2) The court finds that law enforcement is unable to locate the respondent for purposes of service of the ex parte protection order.

If a continuance is granted, the court by order shall extend the ex parte temporary protection order until the rescheduled hearing date. The respondent shall be personally served with a copy of the ex parte order along with a copy of the petition, affidavit, and notice of the date set for the hearing. The ex parte order shall be served without delay under the circumstances of the case including service of the ex parte order on a Sunday or holiday. The law enforcement agency serving the order shall notify the petitioner by telephone or written correspondence when the order is served if the petitioner has provided to the law enforcement agency either a telephone number or address, or both, where the petitioner may be contacted. The law enforcement agency and any officer of the law enforcement agency is immune from civil and criminal liability if the agency or the officer makes a good faith attempt to notify the petitioner in a manner consistent with the provisions of this section.

21-65-9. Temporary protection order effective until protection order served

Updated: 
November 28, 2023

If an ex parte temporary protection order is in effect and the court issues a protection order pursuant to this chapter, the ex parte temporary protection order remains effective until the order issued pursuant to this chapter is served on the respondent.

21-65-10. Persons who may make showing for protection order

Updated: 
November 28, 2023

The showing required pursuant to § 21-65-11 may be made by any of the following:

(1) The vulnerable adult;

(2) The guardian, conservator, attorney-in-fact, or guardian ad litem of the vulnerable adult;

(3) A witness to the vulnerable adult abuse; or

(4) An adult protective services worker who has conducted an investigation.

21-65-11. Relief available for vulnerable adult abuse

Updated: 
November 28, 2023

Upon a finding by a preponderance of the evidence that vulnerable adult abuse has occurred, the court may order any of the following:

(1) That the respondent be required to move from the residence of the vulnerable adult if both the vulnerable adult and the respondent are titleholders or contract holders of record of the real property, are named as tenants in the rental agreement concerning the use and occupancy of the dwelling unit, are living in the same residence, or are married to each other;

(2) That the respondent provide suitable alternative housing for the vulnerable adult;

(3) That a peace officer accompany the party who is leaving or has left the party’s residence to remove essential personal effects of the party;

(4) That the respondent be restrained from vulnerable adult abuse;

(5) That the respondent be restrained from entering or attempting to enter on any premises when it appears to the court that restraint is necessary to prevent the respondent from committing vulnerable adult abuse;

(6) That the respondent be restrained from exercising any powers on behalf of the vulnerable adult through a court-appointed guardian, conservator, or guardian ad litem, an attorney-in-fact, or another third party; and

(7) In addition to the relief provided in § 21-65-12, other relief that the court considers necessary to provide for the safety and welfare of the vulnerable adult.

Any relief granted by the order for protection shall be for a fixed period and may not exceed five years.

21-65-12. Relief available for financial exploitation

Updated: 
November 28, 2023

If the court finds that the vulnerable adult has been the victim of financial exploitation, the court may order the relief the court considers necessary to prevent or remedy the financial exploitation, including any of the following:

(1) Directing the respondent to refrain from exercising control over the funds, benefits, property, resources, belongings, or assets of the vulnerable adult;

(2) Requiring the respondent to return custody or control of the funds, benefits, property, resources, belongings, or assets to the vulnerable adult;

(3) Requiring the respondent to follow the instructions of the guardian, conservator, or attorney-in-fact of the vulnerable adult; and

(4) Prohibiting the respondent from transferring the funds, benefits, property, resources, belongings, or assets of the vulnerable adult to any person other than the vulnerable adult.

21-65-14. Term of protection order--Amendment or extension

Updated: 
November 28, 2023

A protection order shall be for a fixed period of time not to exceed five years. The court may amend or extend an order at any time upon a petition filed by either party and after notice and a hearing. The court may extend an order if the court, after a hearing at which the respondent has the opportunity to be heard, finds that the respondent continues to pose a threat to the safety of the vulnerable adult, a person residing with the vulnerable adult, or a member of the vulnerable adult’s immediate family, or continues to present a risk of financial exploitation of the vulnerable adult. The number of extensions that the court may grant is not limited.

21-65-19. Protection order--Violation as misdemeanor or felony

Updated: 
November 28, 2023

If a temporary protection order or a protection order is granted pursuant to this chapter and the respondent or person restrained knows of the order, a violation of the order is a Class 1 misdemeanor.

If the acts constituting a violation of this section also constitute an assault, as defined in § 22-18-1, the violation of this section is a Class 6 felony.

If a respondent or person restrained has been convicted of, or entered a plea of guilty to, two or more prior violations of this section, § 22-19A-16, or § 25-10-13, or the comparable laws of any other state, within ten years of committing the current offense, and the factual basis for the current offense occurred after the date of the second conviction or guilty plea, the respondent or person restrained is guilty of a Class 6 felony for a third offense, a Class 5 felony for a fourth offense, and a Class 4 felony for a fifth or subsequent offense.

Any proceeding under this chapter is in addition to other civil or criminal remedies.

Title 22. Crimes

Updated: 
November 28, 2023

Chapter 22-1. Definitions and General Provisions

Updated: 
November 28, 2023

22-1-2. Definition of terms

Updated: 
November 28, 2023

 

Terms used in this title mean:

(1) If applied to the intent with which an act is done or omitted:

(a) The words, “malice, maliciously,” and all derivatives thereof import a wish to intentionally vex, annoy, or injure another person, established either by proof or presumption of law;

(b) The words, “intent, intentionally,” and all derivatives thereof, import a specific design to cause a certain result or, if the material part of a charge is the violation of a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, a specific design to engage in conduct of that nature;

(c) The words, “knowledge, knowingly,” and all derivatives thereof, import only a knowledge that the facts exist which bring the act or omission within the provisions of any statute. A person has knowledge if that person is aware that the facts exist which bring the act or omission within the provisions of any statute. Knowledge of the unlawfulness of such act or omission is not required;

(d) The words, “reckless, recklessly,” and all derivatives thereof, import a conscious and unjustifiable disregard of a substantial risk that the offender’s conduct may cause a certain result or may be of a certain nature. A person is reckless with respect to circumstances if that person consciously and unjustifiably disregards a substantial risk that such circumstances may exist;

(e) The words, “neglect, negligently,” and all words derived thereof, import a want of attention to the nature or probable consequences of an act or omission which a prudent person ordinarily bestows in acting in his or her own concerns;

(f) If the section defining an offense provides that negligence suffices to establish an element thereof, then recklessness, knowledge, intent, or malice also constitutes sufficient culpability for such element. If recklessness suffices to establish an element of the offense, then knowledge, intent or malice also constitutes sufficient culpability for such element. If knowledge suffices to establish an element of an offense, then intent or malice also constitutes sufficient culpability for such element. If intent suffices to establish an element of an offense, then malice also constitutes sufficient culpability for such element;

(2) “Actor,” the person who takes the active part in a transaction;

(3) “Affirmative defense,” an issue involving an alleged defense to which, unless the state’s evidence raises the issue, the defendant, to raise the issue, must present some credible evidence. If the issue involved in an affirmative defense is raised, then the guilt of the defendant must be established beyond a reasonable doubt as to that issue as well as all other elements of the offense;

(4) “Antique firearm,” any firearm, including any firearm with a matchlock, flintlock, percussion cap or similar type of ignition system, manufactured before 1899, and any replica of any firearm described in this section if such replica is not designed or redesigned for using rimfire or conventional centerfire fixed ammunition or if it uses rimfire or conventional centerfire fixed ammunition which is no longer manufactured in the United States and which is not readily available in the ordinary channels of commercial trade;

(5) “Check,” any check, draft, order or other commercial device which orders a financial institution to pay a sum certain of money on its presentment;

(6) “Concealed,” any firearm that is totally hidden from view. If any part of the firearm is capable of being seen, it is not concealed;

(7) “Consideration,” any type of property or thing of legal value, whether delivered in the past, present or to be delivered in the future. The term includes an unfulfilled promise to deliver. The term may include an advantage or benefit to the promisor or a loss or detriment to the promisee. Any amount, advantage or inconvenience, no matter how trifling, is sufficient to constitute consideration;

(8) “Controlled weapon” includes any firearm silencer, machine gun, or short shotgun, as those terms are defined in subdivisions (17), (23), and (46) of this section;

(9) “Crime of violence,” any of the following crimes or an attempt to commit, or a conspiracy to commit, or a solicitation to commit any of the following crimes: murder, manslaughter, rape, aggravated assault, riot, robbery, burglary in the first degree, arson, kidnapping, felony sexual contact as defined in § 22-22-7, felony child abuse as defined in § 26-10-1, or any other felony in the commission of which the perpetrator used force, or was armed with a dangerous weapon, or used any explosive or destructive device;

(9A) “Critical infrastructure facility,” any of the following facilities, whether in operation, idle, or under construction, maintenance or repair, that are enclosed by a fence or other physical barrier that is obviously designed to exclude trespassers and are clearly marked with a sign that is posted on the property and reasonably likely to come to the attention of any trespasser that indicates that entry is forbidden, or any pole or tower used for any of the purposes in this subdivision, whether enclosed or marked with a sign or not:

(a) Electric utility facility, including a power generation facility, an electric transmission facility, an electric station or substation, or any other facility used to support the generation, transmission, or distribution of electricity;

(b) Water tower, municipal or rural water system well, water intake structure, or water treatment facility;

(c) Natural gas utility facility, including a regulator station, a compressor station, an odorization facility, a mainline valve, a natural gas storage facility, or any other facility used to support the acquisition, transmission, distribution, or storage of natural gas;

(d) Tank farm, pipeline terminal, pipeline, pump or compressor station or storage facility for gasoline, crude or refined or synthetic oil, ethanol, propane, liquid natural gas, or other hazardous liquid;

(e) Transportation facility, including a port, railroad switching yard, or trucking terminal;

(f) Hazardous waste storage, treatment, or disposal facility;

(g) Oil and gas locations, facilities, and equipment, including temporary drilling rigs, permanent oil and gas product facilities, and artificial lift equipment;

(h) Communications services facility, infrastructure or equipment involved in the carriage of essential communications services for both wired and wireless communications, switching, routing, repeater/amplifier equipment or other electronic equipment, macro and micro wireless towers using federally licensed spectrum, video headend equipment, and satellite communications receiver or transmission equipment;

(i) Dam that is owned by the state or a subdivision;

(j) Facility either (i) whose owner or operator is required to submit a risk management plan under the federal Chemical Safety Information, Site Security, and Fuels Regulatory Relief Act (42 U.S.C. 7412(r)); or (ii) is identified and regulated by the United States Department of Homeland Security Chemical Facility Anti-Terrorism Standards (CFATS) program; or

(k) Any construction area, pipe yard, or laydown yard for any of the above, whether permanent or temporary in nature;

(10) “Dangerous weapon” or “deadly weapon,” any firearm, stun gun, knife, or device, instrument, material, or substance, whether animate or inanimate, which is calculated or designed to inflict death or serious bodily harm, or by the manner in which it is used is likely to inflict death or serious bodily harm;

(11) “Dealer in stolen property,” any person who:

(a) Is found in possession or control of property stolen from two or more persons on separate occasions; or

(b) Has received stolen property in another transaction within the year preceding the commencement of the prosecution; or

(c) Trades in property similar to the type of stolen property received and acquires such property for a consideration which that person knows is substantially below its reasonable value;

(12) “Deprive,” to take or to withhold property of another or to dispose of property of another so as to make it unlikely that the owner will receive it;

(13) “Destructive device,”

(a) Any bomb, grenade, explosive missile, or similar device or any launching device therefor; or

(b) Any breakable container which contains a flammable liquid with a flashpoint of one hundred and fifty degrees Fahrenheit or less and has a wick or similar device capable of being ignited;

(c) The term does not include “permissible fireworks,” defined by § 34-37-5; any device which is neither designed nor redesigned for use as a weapon; any device, although originally designed for use as a weapon, which is redesigned for use as a signaling, pyrotechnic, line throwing, safety or similar device; surplus ordnance sold, loaned or given by the secretary of the army pursuant to the provisions of 10 U.S.C. §§ 4684(2), 4685, or 4686; or any other device which is an antique or is a rifle which the owner intends to use solely for sporting purposes;

(14) “Explosive,” any substance, or combination of substances, that is used for the purpose of detonation and which, upon exposure to any external or internal force or condition, is capable of a relatively instantaneous release of gas and heat. The term does not include “permissible fireworks,” as defined by § 34-37-5;

(15) “Financial institution,” a bank, insurance company, credit union, savings and loan association, investment trust, or other organization held out to the public as a place of deposit of funds or medium of savings or collective investment;

(16) “Firearm,” any weapon from which a projectile or projectiles may be discharged by gunpowder. As used in this subdivision, the term, gunpowder, includes any propellant that upon oxidization emits heat and light and is commonly used in firearms cartridges;

(17) “Firearm silencer,” any instrument, attachment, weapon or appliance for causing the firing of any gun, revolver, pistol, or other firearm to be silent, or intended to lessen or muffle the noise of the firing of any such weapon;

(18) “Government,” the United States, any state, county, municipality, school district, or other political unit, or any department, agency, or subdivision of any of the foregoing, or any corporation or other association carrying out the functions of any of the foregoing;

(19) “Immediate family,” any spouse, child, parent, or guardian of the victim;

(20) “Insanity,” the condition of a person temporarily or partially deprived of reason, upon proof that at the time of committing the act, the person was incapable of knowing its wrongfulness, but not including an abnormality manifested only by repeated unlawful or antisocial behavior;

(21) “Intoxication,” a disturbance of mental or physical capacities resulting from the introduction of substances into the body. Intoxication is not, in itself, a mental disease or defect;

(22) “Law enforcement officer,” any officer, prosecutor, or employee of the state or any of its political subdivisions or of the United States, or, while on duty, an agent or employee of a railroad or express company or security personnel of an airline or airport, who is responsible for the prevention, detection, or prosecution of crimes, for the enforcement of the criminal or highway traffic laws of the state, or for the supervision of confined persons or those persons on supervised release or probation;

(22A) “Loaded firearm,” any functional firearm that contains a cartridge, shell, or projectile in the chamber, including any chamber in the cylinder of a revolver;

(23) “Machine gun,” any firearm, whatever its size and usual designation, that automatically discharges two or more cartridges by a single function of the firing device;

(24) “Mental illness,” any substantial psychiatric disorder of thought, mood or behavior which affects a person at the time of the commission of the offense and which impairs a person’s judgment, but not to the extent that the person is incapable of knowing the wrongfulness of such act. Mental illness does not include abnormalities manifested only by repeated criminal or otherwise antisocial conduct;

(25) “Moral turpitude,” an act done contrary to justice, honesty, principle, or good morals, as well as an act of baseness, vileness, or depravity in the private and social duties which a person owes to his fellow man or to society in general;

(26) “Motor vehicle,” any automobile, motor truck, motorcycle, house trailer, trailer coach, cabin trailer, or any vehicle propelled by power other than muscular power;

(27) “Obtain,”

(a) In relation to property, to bring about a transfer or purported transfer of a legal interest in the property, whether to the actor or another; or

(b) In relation to labor or service, to secure performance thereof;

(28) “Occupied structure,” any structure:

(a) Which is the permanent or temporary habitation of any person, whether or not any person is actually present;

(b) Which at the time is specially adapted for the overnight accommodation of any person, whether or not any person is actually present; or

(c) In which at the time any person is present;

(29) “Offense” or “public offense,” any crime, petty offense, violation of a city or county ordinance, or act prohibited by state or federal law;

(30) “Pass,” to utter, publish or sell or to put or send forth into circulation. The term includes any delivery of a check to another for value with intent that it shall be put into circulation as money;

(31) “Person,” any natural person, unborn child, association, limited liability company, corporation, firm, organization, partnership, or society. If the term is used to designate a party whose property may be the subject of a crime or petty offense, it also includes the United States, any other country, this state, and any other state or territory of the United States, and any of their political subdivisions, agencies, or corporations;

(32) “Pistol,” any firearm with a barrel less than sixteen inches in length, designed to expel a projectile or projectiles by the action of an explosive;

(33) “Private place,” a place where one may reasonably expect to be safe from casual or hostile intrusion or surveillance, but does not include a place to which the public or a substantial group thereof has access;

(34) “Process,” any writ, warrant, summons, or order issued in the course of judicial proceedings;

(35) “Property,” anything of value, including, but not limited to, motor vehicles, real estate, tangible and intangible personal property, contract rights, choses-in-action, and other interests in or claims to wealth, admission or transportation tickets, captured or domestic animals, food and drink, electric or other power, services, and signatures which purport to create, maintain, or extinguish any legal obligation;

(36) “Property of another,” property in which any person other than the actor has an interest upon which the actor is not privileged to infringe, regardless of the fact that the actor also has an interest in the property and regardless of the fact that the other person might be precluded from civil recovery because the property was used in an unlawful transaction or was subject to forfeiture as contraband. Property in possession of an actor may not be deemed property of another who has only a security interest therein, even if legal title is in the creditor pursuant to a conditional sales contract or other security agreement;

(37) “Public employee,” any person employed by the state or any of its political subdivisions, who is not a public officer;

(38) “Public office,” the position held by a public officer or employee;

(39) “Public officer,” any person who holds a position in the state government or in any of its political subdivisions, by election or appointment, for a definite period, whose duties are fixed by law, and who is invested with some portion of the sovereign functions of government;

(40) “Public record,” any official book, paper, or record created, received, or used by or in any office or agency of the state or of any of its political subdivisions;

(41) “Publish,” to disseminate, circulate or place before the public in any way, other than by speech which is not mechanically or electronically amplified;

(42) “Receive,” to acquire possession, control or title, or to lend or borrow on the security of the property;

(43) “Service,” labor that does not include a tangible commodity. The term includes, but is not limited to: labor; professional advice; telephone, cable television and other utility service; accommodations in hotels, restaurants or elsewhere; admissions to exhibits and entertainments; the use of machines designed to be operated by coin or other thing of value; and the use of rental property;

(44) “Seller,” any person or employee engaged in the business of selling pistols at retail;

(44A) “Serious bodily injury,” such injury as is grave and not trivial, and gives rise to apprehension of danger to life, health, or limb;

(45) “Short rifle,” any rifle having a barrel less than sixteen inches long, or an overall length of less than twenty-six inches;

(46) “Short shotgun,” any shotgun having a barrel less than eighteen inches long or an overall length of less than twenty-six inches;

(47) “Signature,” any name, mark or sign written with intent to authenticate any instrument or writing;

(48) Deleted by SL 2005, ch 120, § 357;

(49) “Structure,” any house, building, outbuilding, motor vehicle, watercraft, aircraft, railroad car, trailer, tent, or other edifice, vehicle or shelter, or any portion thereof;

(50) “Stun gun,” any battery-powered, pulsed electrical device of high voltage and low or no amperage that can disrupt the central nervous system and cause temporary loss of voluntary muscle control of a person;

(50A) “Unborn child,” an individual organism of the species homo sapiens from fertilization until live birth;

(51) “Unoccupied structure,” any structure which is not an occupied structure;

(52) “Vessel,” if used with reference to shipping, any ship of any kind and every structure adapted to be navigated from place to place;

(53) “Victim,” any natural person against whom the defendant in a criminal prosecution has committed or attempted to commit a crime;

(54) “Voluntary intoxication,” intoxication caused by substances that an actor knowingly introduces into his or her body, the tendency of which is to cause intoxication; and

(55) “Written instrument,” any paper, document, or other instrument containing written or printed matter or the equivalent thereof, used for purposes of reciting, embodying, conveying, or recording information, and any money, credit card, token, stamp, seal, badge, trade mark, service mark or any evidence or symbol of value, right, privilege or identification, which is capable of being used to the advantage or disadvantage of some person.

22-1-4. Felony and misdemeanor distinguished

Updated: 
November 28, 2023

Any crime is either a felony or a misdemeanor. A felony is a crime which is or may be punishable by imprisonment in a state correctional facility. Every other crime is a misdemeanor.

Chapter 22-14. Unlawful Use of Weapons

Updated: 
November 28, 2023

22-14-15. Possession of firearm by one with prior violent crime conviction or certain drug-related conviction--Felony--Fifteen-year period

Updated: 
November 28, 2023

No person who has been convicted in this state or elsewhere of a crime of violence or a felony pursuant to § 22-42-2, 22-42-3, 22-42-4, 22-42-7, 22-42-8, 22-42-9, 22-42-10 or 22-42-19, may possess or have control of a firearm. A violation of this section is a Class 6 felony. The provisions of this section do not apply to any person who was last discharged from prison, jail, probation, or parole more than fifteen years prior to the commission of the principal offense.

22-14-15.1 Possession of firearm by one with prior drug conviction--Felony--Exception

Updated: 
November 28, 2023

No person who has been convicted of a felony under chapter 22-42 or of a felony for a crime with the same elements in another state may possess or have control of a firearm. A violation of this section is a Class 6 felony. The provisions of this section do not apply to any person who was last discharged from prison, jail, probation, or parole, for a felony under chapter 22-42 more than five years prior to the commission of the principal offense and is not subject to the restrictions in § 22-14-15.

22-14-15.2 Possession of firearm by one convicted of misdemeanor crime involving domestic violence--Misdemeanor--Civil rights restored--Repeal of section--Order restoring rights

Updated: 
November 28, 2023

No person who has been convicted of any misdemeanor crime involving an act of domestic violence may possess or have control of a firearm for a period of one year from the date of conviction. Any violation of this section is a Class 1 misdemeanor. At the end of the one year period, any civil rights lost as a result of this provision shall be restored. Any person who has lost their right to possess or have control of a firearm as a result of a misdemeanor conviction involving an act of domestic violence, prior to July 1, 2005, shall be restored to those civil rights one year after July 1, 2005. This section shall be repealed on the date when any federal law restricting the right to possess firearms for misdemeanor domestic violence convictions is repealed.

Once eligible under the statute, a person convicted under this section may petition the convicting court for an order reflecting the restoration of any firearm rights lost, if the person has not been convicted within the prior year of a crime for which firearm rights have been lost. A petition filed under this section shall be verified by the petitioner and served upon the states attorney in the county where the conviction occurred. Thirty days after service upon the states attorney, the court shall enter the order, if the court finds that the petitioner is eligible for relief under this section.

Chapter 22-18. Assaults and Personal Injuries

Updated: 
November 28, 2023

22-18-1. Simple assault--Misdemeanor--Felony for subsequent offenses

Updated: 
November 28, 2023

Simple assault–Violation as misdemeanor–Third or subsequent offense a felony–Violation in other states

Currentness

A person is guilty of simple assault, a Class 1 misdemeanor, if the person:

(1) Attempts to cause bodily injury to another and has the actual ability to cause the injury;

(2) Recklessly causes bodily injury to another;

(3) Negligently causes bodily injury to another with a dangerous weapon;

(4) Attempts by physical menace or credible threat to put another in fear of imminent bodily harm, with or without the actual ability to harm the other person; or

(5) Intentionally causes bodily injury to another which does not result in serious bodily injury.

If the defendant has been convicted of, or entered a plea of guilty to, two or more violations of simple assault under this section, simple assault or aggravated assault under § 22-18-1.05, aggravated assault under § 22-18-1.1, assault under § 22-18-26, intentional contact with bodily fluids under § 22-18-26.1, or assault under § 22-18-29, within ten years of committing the current offense, the defendant is guilty of a Class 6 felony for any third offense, a Class 5 felony for a fourth offense, and a Class 4 felony for a fifth or subsequent offense.

Any conviction for, or plea of guilty to, an offense in another state which, if committed in this state, would be a violation of a crime described in this section and occurring within ten years prior to the date of the violation being charged, shall be used to determine if the violation being charged is a subsequent offense.

22-18-1.1. Aggravated assault--Felony

Updated: 
November 28, 2023

Any person who:

(1) Attempts to cause serious bodily injury to another, or causes such injury, under circumstances manifesting extreme indifference to the value of human life;

(2) Attempts to cause, or knowingly causes, bodily injury to another with a dangerous weapon;

(3) Deleted by SL 2005, ch 120, § 2;

(4) Assaults another with intent to commit bodily injury which results in serious bodily injury;

(5) Attempts by physical menace with a deadly weapon to put another in fear of imminent serious bodily harm; or

(6) Deleted by SL 2005, ch 120, § 2;

(7) Deleted by SL 2012, ch 123, § 4;

(8) Attempts to induce a fear of death or imminent serious bodily harm by impeding the normal breathing or circulation of the blood of another person by applying pressure on the throat or neck, or by blocking the nose and mouth;

is guilty of aggravated assault. Aggravated assault is a Class 3 felony.

22-18-1.4. Aggravated battery of an infant--Felony

Updated: 
November 28, 2023

Any person who intentionally or recklessly causes serious bodily injury to an infant, less than three years old, by causing any intracranial or intraocular bleeding, or swelling of or damage to the brain, whether caused by blows, shaking, or causing the infant’s head to impact with an object or surface is guilty of aggravated battery of an infant. Aggravated battery of an infant is a Class 2 felony. A second or subsequent violation of this section is a Class 1 felony.

Chapter 22–19. Kidnapping

Updated: 
November 28, 2023

22-19-9. Taking, enticing away, or keeping of unmarried minor child by parent--Misdemeanor--Subsequent violation felony

Updated: 
November 28, 2023

Any parent who takes, entices away, or keeps his or her unmarried minor child from the custody or visitation of the other parent, or any other person having lawful custody or right of visitation, in violation of a custody or visitation determination entitled to enforcement by the courts of this state, without prior consent is guilty of a Class 1 misdemeanor. Any subsequent violation of this section is a Class 6 felony.

22-19-10. Removal of child from state--Felony

Updated: 
November 28, 2023

Any parent who violates § 22-19-9 and causes the unmarried minor child, taken, enticed, or kept from the child’s lawful custodian, to be removed from the state is guilty of a Class 5 felony.

Chapter 22-19A. Stalking

Updated: 
November 28, 2023

22-19A-1. Stalking as a misdemeanor.

Updated: 
November 28, 2023

No person may:

(1) Willfully, maliciously, and repeatedly follow or harass another person;

(2) Make a credible threat to another person with the intent to place that person in reasonable fear of death or great bodily injury; or

(3) Willfully, maliciously, and repeatedly harass another person by means of any verbal, electronic, digital media, mechanical, telegraphic, or written communication.

A violation of this section constitutes the crime of stalking. Stalking is a Class 1 misdemeanor. However, any second or subsequent conviction occurring within ten years of a prior conviction under this section is a Class 6 felony. Any conviction for, or plea of guilty to, an offense in another state which, if committed in this state, would be a violation of this section and occurring within ten years prior to the date of the violation being charged, shall be used to determine if the violation being charged is a second or subsequent offense.

22-19A-2. Violation of restraining order, injunction, or protection order as felony.

Updated: 
November 28, 2023

Any person who violates § 22-19A-1 when there is a temporary restraining order, or an injunction, or a protection order, or a no contact order issued pursuant to § 25-10-23 or 25-10-25 in effect prohibiting the behavior described in § 22-19A-1 against the same party, is guilty of a Class 6 felony.

22-19A-3. Subsequent convictions as felony.

Updated: 
November 28, 2023

A person who has a second or subsequent conviction occurring within seven years of a prior conviction under § 22-19A-1, 22-19A-2, or 22-19A-7 against the same victim, and involving an act of violence, or a credible threat of violence, is guilty of a Class 5 felony. Any conviction for, or plea of guilty to, an offense in another state which, if committed in this state, would be a violation of § 22-19A-1, 22-19A-2, or 22-19A-7 and involving an act of violence, or a credible threat of violence, and occurring within seven years prior to the date of the violation being charged, shall be used to determine if the violation being charged is a second or subsequent offense.

22-19A-4. Harasses defined.

Updated: 
November 28, 2023

For the purposes of this chapter, harasses means a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, or harasses the person, and which serves no legitimate purpose.

22-19A-5. Course of conduct defined.

Updated: 
November 28, 2023

For the purposes of this chapter, course of conduct means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose. Constitutionally protected activity is not included within the meaning of course of conduct.

22-19A-6. A credible threat defined.

Updated: 
November 28, 2023

For the purposes of this chapter, a credible threat means a threat made with the intent and the apparent ability to carry out the threat. A credible threat need not be expressed verbally.

22-19A-7. Stalking a child twelve or younger -- Felony.

Updated: 
November 28, 2023

Any person who willfully, maliciously, and repeatedly follows or harasses a child twelve years of age or younger or who makes a credible threat to a child twelve years of age or younger with the intent to place that child in reasonable fear of death or great bodily injury or with the intent to cause the child to reasonably fear for the child’s safety is guilty of the crime of felony stalking. Felonious stalking is a Class 6 felony.

22-19A-8. Petition for protection order -- Procedures.

Updated: 
November 28, 2023

There exists an action known as a petition for a protection order in cases of stalking, in cases of physical injury as a result of an assault, or in cases of a crime of violence as defined in subdivision 22-1-2(9). Procedures for the action are as follows:



(1) A petition under this section may be made against any person who violates § 22-19A-1 or against any other person against whom stalking or physical injury as a result of an assault or in cases where a crime of violence is alleged;



(2) A petition shall allege the existence of (a) stalking or (b) physical injury as a result of an assault or (c) a crime of violence, and shall be accompanied by an affidavit made under oath stating the specific facts and circumstances of the stalking or the physical injury as a result of an assault or crime of violence;



(3) A petition for relief may be made whether or not there is a pending lawsuit, complaint, petition, or other action between the parties.



The clerk of the circuit court shall make available standard petition forms with instructions for completion to be used by a petitioner. The attorney general shall prepare the standard petition form.

22-19A-9. Filing petition for protection -- Venue.

Updated: 
November 28, 2023

A petition for relief under §§ 22-19A-8 to 22-19A-16, inclusive, may be filed in circuit court or in a magistrate court with a magistrate judge presiding. Venue lies where any party to the proceedings resides.

22-19A-10. Hearing on petition for protection -- Date -- Notice.

Updated: 
November 28, 2023

Upon receipt of the petition, if sufficient grounds are alleged for relief, the court shall order a hearing which shall be held not later than thirty days from the date of the order unless for good cause the court grants a continuance. Personal service of the petition, affidavit, and notice for hearing shall be made on the respondent not less than five days prior to the hearing.

22-19A-11. Relief granted by protection order.

Updated: 
November 28, 2023

Upon notice and a hearing, if the court finds by a preponderance of the evidence that stalking has taken place, the court may provide relief as follows:



(1) Restrain any party from committing acts of stalking or physical injury as a result of an assault or a crime of violence as defined in subdivision 22-1-2(9);



(2) Order other relief as the court deems necessary for the protection of the person seeking the protection order, including orders or directives to law enforcement officials.



Any relief granted by the order for protection shall be for a fixed period and may not exceed five years.

22-19A-12. Ex parte temporary order pending full hearing on petition for protection.

Updated: 
November 28, 2023

If an affidavit filed with an application under § 22-19A-8 alleges that immediate and irreparable injury, loss, or damage is likely to result before an adverse party or the party’s attorney can be heard in opposition, the court may grant an ex parte temporary protection order pending a full hearing and granting relief as the court deems proper, including an order restraining any person from committing acts of stalking or physical injury as a result of an assault or a crime of violence as defined in subdivision 22-1-2(9). An ex parte temporary protection order is effective for a period of thirty days unless for good cause the court grants a continuance. No continuance may exceed thirty days unless the court finds good cause for the additional continuance and:

(1) The parties stipulate to an additional continuance; or

(2) The court finds that law enforcement is unable to locate the respondent for purposes of service of the ex parte protection order.

If a continuance is granted, the court by order shall extend the ex parte temporary protection order until the rescheduled hearing date. The respondent shall be personally served without delay with a copy of the ex parte order along with a copy of the petition, affidavit, and notice of the date set for the hearing.

22-19A-13. Exceptional circumstances required before court action authorized.

Updated: 
November 28, 2023

The court may not require an undertaking or other security of any party to a petition for an order of protection other than in exceptional circumstances.

22-19A-14. Modification of terms of protection order.

Updated: 
November 28, 2023

Upon application, notice to all parties, and hearing, the court may modify the terms of an existing order for protection.

22-19A-15. Delivery of protection order to law enforcement agency -- Notice of order to officers.

Updated: 
November 28, 2023

The petitioner may deliver an order for protection granted pursuant to § § 22-19A-8 to 22-19A-16, inclusive, within twenty-four hours to the local law enforcement agency having jurisdiction over the residence of the petitioner. Each appropriate law enforcement agency shall make available to other law enforcement officers information as to the existence and status of any order for protection issued pursuant to § § 22-19A-8 to 22-19A-16, inclusive.

22-19A-16. Violation of protection order -- Penalties.

Updated: 
November 28, 2023

If a temporary protection order or a protection order is granted pursuant to §§ 22-19A-8 to 22-19A-16, inclusive, and the respondent or person restrained knows of the order, a violation of the order is a Class 1 misdemeanor.

If the acts constituting a violation of this section also constitute an assault, as defined in § 22-18-1, the violation of this section is a Class 6 felony.

If a respondent or person restrained has been convicted of, or entered a plea of guilty to, two or more prior violations of this section, § 21-65-19, or § 25-10-13, or the comparable laws of any other state, within ten years of committing the current offense, and the factual basis for the current offense occurred after the date of the second conviction or guilty plea, the respondent or person restrained is guilty of a Class 6 felony for a third offense, a Class 5 felony for a fourth offense, and a Class 4 felony for a fifth or subsequent offense.

Any proceeding under §§ 22-19A-8 to 22-19A-16, inclusive, is in addition to other civil or criminal remedies.

22-19A-17. Defendant prohibited from contacting victim prior to court appearance.

Updated: 
November 28, 2023

While in custody after arrest for assault or stalking, no defendant may have or be permitted any contact or communications, either directly or by means of a third party, with the victim or the family or household members of the victim, until the defendant’s initial court appearance or until such contact or communication is specifically authorized by the court. Willful violation of this section is a Class 1 misdemeanor.

Chapter 22-21. Invasions of privacy

Updated: 
November 28, 2023

22-21-1. Eavesdropping--Privacy--Misdemeanor

Updated: 
November 28, 2023

No person may, except as authorized by law:
 

(1) Trespass on property with intent to subject anyone to eavesdropping or other surveillance in a private place; or
 

(2) Install in any private place, without the consent of the person or persons entitled to privacy there, any device for observing, photographing, recording, amplifying, or broadcasting sounds or events in such place, or uses any such unauthorized installation.
 

A person who violates this section is guilty of a Class 1 misdemeanor. Subdivision (2) does not apply to law enforcement officers, or to those acting under the direction of a law enforcement officer, while engaged in the performance of the officer’s lawful duties.

22-21-3. Window peeking on private property of another--Violation as misdemeanor

Updated: 
November 28, 2023

No person may enter the private property of another and peek in the door or window of any inhabited building or structure located thereon, without having lawful purpose with the owner or occupant thereof. A violation of this section is a Class 1 misdemeanor.

22-21-4. Record--Privacy--Manipulated image--Violation

Updated: 
November 28, 2023

No person may:

(1) Use any device to photograph or visually record:

(a) Any other person without clothing or under or through the clothing, or with another person depicted in a sexual act, for the purpose of viewing the body of, or the undergarments worn by, that other person;

(b) Without the consent or knowledge of that other person; and

(c) With the intent to self-gratify, to harass, or embarrass and invade the privacy of that other person, under circumstances in which the other person has a reasonable expectation of privacy;

(2) Use, disclose, or disseminate, by any means, any recording or photograph in violation of subdivision (1), in order to self-gratify, to harass, or to embarrass and invade the privacy of that other person; or

(3) Knowingly and intentionally disseminate or sell any image or recording of another person:

(a) That has been intentionally manipulated to create a realistic but false image or recording that would cause a reasonable person to mistakenly believe that the image or recording is authentic;

(b) That depicts the person as totally nude; in a state of undress to expose the genitals, pubic area, buttocks, or female breast; or with another person in a sexual act;

(c) Without the consent or knowledge of the person whose image is depicted; and

(d) With the intent to self-gratify, to harass, or embarrass and invade the privacy of the person whose image is depicted.

A violation of this section is a Class 1 misdemeanor. However, a violation of this section is a Class 6 felony if the victim is seventeen years of age or younger and the perpetrator is at least twenty-one years of age at the time the photograph or recording is made.

Chapter 22-40. Identity Crimes

Updated: 
November 28, 2023

22-40-8. Identity theft — Felony

Updated: 
November 28, 2023

If any person, without the authorization or permission of another person and with the intent to deceive or defraud:

(1) Obtains, possesses, transfers, uses, attempts to obtain, or records identifying information not lawfully issued for that person’s use; or

(2) Accesses or attempts to access the financial resources of that person through the use of identifying information;

such person commits the crime of identity theft. Identity theft committed pursuant to this section is a Class 6 felony.

Chapter 22-42. Controlled Substances and Marijuana

Updated: 
November 28, 2023

22-42-2. Unauthorized manufacture, distribution, counterfeiting or possession of Schedule I or II substances--Violation--Mandatory sentences

Updated: 
November 28, 2023

Except as authorized by this chapter or chapter 34-20B, no person may manufacture, distribute, or dispense a substance listed in Schedules I or II; possess with intent to manufacture, distribute, or dispense a substance listed in Schedules I or II; create or distribute a counterfeit substance listed in Schedules I or II; or possess with intent to distribute a counterfeit substance listed in Schedules I or II. A violation of this section is a Class 4 felony. However, a violation of this section is a Class 3 felony if the person is in possession of three or more of the following:
 

(1) Three hundred dollars or more in cash;
 

(2) A firearm or other weapon pursuant to §§ 22-14-6, 22-14-15, 22-14-15.1, 22-14-15.3, and subdivision 22-1-2(8);
 

(3) Bulk materials used for the packaging of controlled substances;
 

(4) Materials used to manufacture a controlled substance including recipes, precursor chemicals, laboratory equipment, lighting, ventilating or power generating equipment; or
 

(5) Drug transaction records or customer lists.
 

The distribution of a substance listed in Schedules I or II to a minor is a Class 2 felony. A first conviction under this section shall be punished by a mandatory sentence in a state correctional facility of at least one year, which sentence may not be suspended. Probation, suspended imposition of sentence, or suspended execution of sentence may not form the basis for reducing the mandatory time of incarceration required by this section. A second or subsequent conviction under this section shall be punished by a mandatory sentence in a state correctional facility of at least ten years, which sentence may not be suspended. Probation, suspended imposition of sentence, or suspended execution of sentence may not form the basis for reducing the mandatory time of incarceration required by this section. However, a first conviction for distribution to a minor under this section shall be punished by a mandatory sentence in a state correctional facility of at least five years, which sentence may not be suspended. Probation, suspended imposition of sentence, or suspended execution of sentence may not form the basis for reducing the mandatory time of incarceration required by this section. A second or subsequent conviction for distribution to a minor under this section shall be punished by a mandatory sentence in a state correctional facility of at least fifteen years, which sentence may not be suspended. Probation, suspended imposition of sentence, or suspended execution of sentence, may not form the basis for reducing the mandatory time of incarceration required by this section.
 

Any conviction for, or plea of guilty to, an offense in another state which, if committed in this state, would be a violation of this section, and occurring within fifteen years prior to the date of the violation being charged, must be used to determine if the violation being charged is a second or subsequent offense.
 

Any person who, for consideration, intentionally distributes any controlled substance or counterfeit substance in violation of this section and another person dies as a direct result of using that substance, the sentence for the principal felony shall be enhanced by increasing the class of the principal felony two levels. The enhancement may not exceed the sentence for a Class C felony.
 

A civil penalty may be imposed, in addition to any criminal penalty, upon a conviction of a violation of this section not to exceed ten thousand dollars. A conviction for the purposes of the mandatory sentence provisions of this chapter is the acceptance by a court of any plea, other than not guilty, including nolo contendere, or a finding of guilt by a jury or court.

22-42-3. Unauthorized manufacture, distribution, counterfeiting or possession of Schedule III substances as felony--Mandatory sentences

Updated: 
November 28, 2023

Except as authorized by this chapter or chapter 34-20B, no person may manufacture, distribute, or dispense a controlled drug or substance listed in Schedule III; possess with intent to manufacture, distribute, or dispense a substance listed in Schedule III; create or distribute a counterfeit substance listed in Schedule III; or possess with intent to distribute a counterfeit substance listed in Schedule III. A violation of this section is a Class 5 felony. However, the distribution of a substance listed in Schedule III to a minor is a Class 3 felony. A first conviction under this section shall be punished by a mandatory sentence in a state correctional facility or county jail of at least thirty days, which sentence may not be suspended. A second or subsequent conviction under this section shall be punished by a mandatory state correctional facility or county jail sentence of at least one year, which sentence may not be suspended. However, a first conviction for distribution to a minor under this section shall be punished by a mandatory sentence in a state correctional facility or county jail of at least ninety days, which sentence may not be suspended. A second or subsequent conviction for distribution to a minor under this section shall be punished by a mandatory sentence in a state correctional facility of at least two years, which sentence may not be suspended. A civil penalty may be imposed, in addition to any criminal penalty, upon a conviction of a violation of this section not to exceed ten thousand dollars.

22-42-4. Unauthorized manufacture, distribution, counterfeiting or possession of Schedule IV substances as felony--Mandatory sentences

Updated: 
November 28, 2023

Except as authorized by this chapter or chapter 34-20B, no person may manufacture, distribute, or dispense a controlled drug or substance listed in Schedule IV; possess with intent to manufacture, distribute, or dispense a substance listed in Schedule IV; create or distribute a counterfeit substance listed in Schedule IV; or possess with intent to distribute a counterfeit substance listed in Schedule IV. A violation of this section is a Class 6 felony. However, the distribution of a substance listed in Schedule IV to a minor is a Class 4 felony. A first conviction under this section shall be punished by a mandatory sentence in a state correctional facility or county jail of at least thirty days, which sentence may not be suspended. A second or subsequent conviction under this section shall be punished by a mandatory state correctional facility or county jail sentence of at least one year, which sentence may not be suspended. A civil penalty may be imposed, in addition to any criminal penalty, upon a conviction of a violation of this section not to exceed ten thousand dollars. Notwithstanding any other provision of this section, a violation of this section with respect to distribution of Flunitrazepam to a minor is a Class 4 felony, but in all other cases under this section is a Class 5 felony.

22-42-7. Distribution or possession with intent to distribute specified amounts of marijuana

Updated: 
November 28, 2023

The distribution, or possession with intent to distribute, of less than one-half ounce of marijuana without consideration is a Class 1 misdemeanor; otherwise, the distribution, or possession with intent to distribute, of one ounce or less of marijuana is a Class 6 felony. The distribution, or possession with intent to distribute, of more than one ounce but less than one-half pound of marijuana is a Class 5 felony. The distribution, or possession with intent to distribute, of one-half pound but less than one pound of marijuana is a Class 4 felony. The distribution, or possession with intent to distribute, of one pound or more of marijuana is a Class 3 felony. The distribution, or possession with intent to distribute, of less than one-half ounce of marijuana to a minor without consideration is a Class 6 felony; otherwise, the distribution, or possession with intent to distribute, of one ounce or less of marijuana to a minor is a Class 5 felony. The distribution, or possession with intent to distribute, of more than one ounce but less than one-half pound of marijuana to a minor is a Class 4 felony. The distribution, or possession with intent to distribute, of one-half pound but less than one pound of marijuana to a minor is a Class 3 felony. The distribution, or possession with intent to distribute, of one pound or more of marijuana to a minor is a Class 2 felony. A first conviction of a felony under this section shall be punished by a mandatory sentence in a state correctional facility or county jail of at least thirty days, which sentence may not be suspended. A second or subsequent conviction of a felony under this section shall be punished by a mandatory sentence of at least one year. Conviction of a Class 1 misdemeanor under this section shall be punished by a mandatory sentence in county jail of not less than fifteen days, which sentence may not be suspended. A civil penalty, not to exceed ten thousand dollars, may be imposed, in addition to any criminal penalty, upon a conviction of a felony violation of this section.

22-42-8. Obtaining possession of controlled substance by theft, misrepresentation, forgery, or fraud

Updated: 
November 28, 2023

Any person who knowingly obtains possession of a controlled drug or substance by theft, misrepresentation, forgery, fraud, deception, or subterfuge is guilty of a Class 4 felony.

22-42-9. Manufacture, distribution, or possession of equipment for making counterfeit controlled substance as felony

Updated: 
November 28, 2023

Any person who knowingly makes, distributes, or possesses any punch, die, plate, or other thing designed to print or reproduce the trademark, trade name, or other identifying mark of another on any drug, or container or label thereof so as to make such drug a counterfeit controlled drug or substance is guilty of a Class 5 felony.

22-42-10. Keeping place for use or sale of controlled substances as felony

Updated: 
November 28, 2023

Any person who keeps or maintains a place which is resorted to by persons using controlled drugs and substances for the purpose of using such substances, or which is used for the keeping or selling of such substances, is guilty of a Class 5 felony.

22-42-19. Drug free zones created--Violation as felony--Sentence--Defense

Updated: 
November 28, 2023

Any person who commits a violation of § 22-42-2, 22-42-3, or 22-42-4, or a felony violation of § 22-42-7, if such activity has taken place:

(1) In, on, or within one thousand feet of real property comprising a public or private elementary or secondary school or a playground; or

(2) In, on, or within five hundred feet of real property comprising a public or private youth center, public swimming pool, or video arcade facility; is guilty of a Class 4 felony. The sentence imposed for a conviction under this section carries a minimum sentence of imprisonment in a state correctional facility of five years. Any sentence imposed under this section shall be consecutive to any other sentence imposed for the principal felony. The court may not place on probation, suspend the execution of the sentence, or suspend the imposition of the sentence of any person convicted of a violation of this section. However, the sentencing court may impose a sentence other than that specified in this section if the court finds that mitigating circumstances exist which require a departure from the mandatory sentence provided for in this section. The court’s finding of mitigating circumstances allowed by this section and the factual basis relied upon by the court shall be in writing.

It is not a defense to the provisions of this section that the defendant did not know the distance involved. It is not a defense to the provisions of this section that school was not in session.

Chapter 22-46. Abuse, Neglect, or Exploitation of Elders or Adults with Disabilities

Updated: 
November 28, 2023

22-46-1. Definition of terms

Updated: 
November 28, 2023

Terms used in this chapter mean:

(1) “Adult with a disability,” a person eighteen years of age or older who has a condition of intellectual disability, infirmities of aging as manifested by organic brain damage, advanced age, or other physical dysfunctioning to the extent that the person is unable to protect himself or herself or provide for his or her own care;

(2) “Caretaker,” a person or entity who is entrusted with the property of an elder or adult with a disability, or who is responsible for the health or welfare of an elder or adult with a disability, and who assumes the position of trust or responsibility voluntarily, by contract, by receipt of payment, or by order of the court;

(3) “Elder,” a person sixty-five years of age or older;

(4) “Emotional and psychological abuse,” a caretaker’s willful, malicious, and repeated infliction of:

(a) A sexual act or the simulation of a sexual act directed at and without the consent of the elder or adult with a disability that involves nudity or is obscene;

(b) Unreasonable confinement;

(c) Harm or damage or destruction of the property of an elder or adult with a disability, including harm to or destruction of pets; or

(d) Ridiculing or demeaning conduct, derogatory remarks, verbal harassment, or threats to inflict physical or emotional and psychological abuse, directed at an elder or adult with a disability;

(5) “Exploitation,” the wrongful taking or exercising of control over property of an elder or adult with a disability with intent to defraud the elder or adult with a disability;

(6) “Neglect,” harm to the health or welfare of an elder or an adult with a disability, without reasonable medical justification, caused by a caretaker, within the means available for the elder or adult with a disability, including the failure to provide adequate food, clothing, shelter, or medical care; and

(7) “Physical abuse,” physical harm, bodily injury, attempt to cause physical harm or injury, or fear of imminent physical harm or bodily injury.

Title 23. Law Enforcement

Updated: 
November 28, 2023

Chapter 23-7. Firearms Control

Updated: 
November 28, 2023

23-7-7. Permit to carry concealed pistol--Statewide validity--Background investigation

Updated: 
November 28, 2023

A permit to carry a concealed pistol must be issued to any applicant by the sheriff of the county in which the applicant resides. The permit must be valid throughout the state and must be issued pursuant to § 23-7-7.1. For purposes of verifying the qualifications of an applicant, prior to issuing a permit, the sheriff shall execute, and the applicant shall pass, a background investigation, including a computer check of available on-line records and a check utilizing the National Instant Criminal Background Check System. The issuance of a permit to carry a concealed pistol under this chapter does not impose a general prohibition on the carrying of a pistol without a permit.

23-7-7.1. Requirements for issuance of temporary permit--Time requirement--Appeal of denial

Updated: 
November 28, 2023

A temporary permit to carry a concealed pistol shall be issued within five days of application to a person if the applicant:

(1) Is eighteen years of age or older;

(2) Has never pled guilty to, nolo contendere to, or been convicted of a felony or a crime of violence;

(3) Is not habitually in an intoxicated or drugged condition;

(4) Has no history of violence;

(5) Has not been found in the previous ten years to be a “danger to others” or a “danger to self” as defined in § 27A-1-1 or is not currently adjudged mentally incompetent;

(6) Has physically resided in and is a resident of the county where the application is being made for at least thirty days immediately preceding the date of the application;

(7) Has had no violations of chapter 23-7, 22-14, or 22-42 constituting a felony or misdemeanor in the five years preceding the date of application or is not currently charged under indictment or information for such an offense;

(8) Is a citizen or legal resident of the United States;

(9) Is not a fugitive from justice; and

(10) Is not otherwise prohibited by state law, 18 U.S.C. § 922(g) as amended to October 26, 2005, or 18 U.S.C. § 922(n) as amended to October 26, 2005, from receiving, possessing or transporting a firearm, and passes a National Instant Criminal Background Check.

A person denied a permit may appeal to the circuit court pursuant to chapter 1-26.

23-7-7.5. Active duty military personnel and spouses

Updated: 
November 28, 2023

Any person who is active duty military, or the spouse of a person who is active duty military, with a home of record in South Dakota is considered to have met the provisions of subdivision 23-7-7.1(6).

23-7-45. Exceptions to prohibition against possession of pistols by minors

Updated: 
November 28, 2023

The provisions of § 23-7-44 are not applicable to a minor and a criminal prosecution for possession of a pistol brought after transfer pursuant to chapter 26-11 is not applicable to a minor if the minor had the prior written consent of the minor’s parent or guardian to possess the pistol, and:

(1) The minor was on premises owned or leased by the minor or the minor’s parent, guardian, or immediate family member;

(2) The minor was in the presence of a licensed or accredited gun safety instructor; or

(3) The pistol was being used for farming, ranching, hunting, trapping, target shooting, or gun safety instruction.

Title 25. Domestic Relations

Updated: 
November 28, 2023

Chapter 4. Divorce and Separate Maintenance

Updated: 
November 28, 2023

25-4-2. Grounds for divorce

Updated: 
November 28, 2023
Divorces may be granted for any of the following causes:
(1) Adultery;
(2) Extreme cruelty;
(3) Willful desertion;
(4) Willful neglect;
(5) Habitual intemperance;
(6) Conviction of felony;
(7) Irreconcilable differences.

25-4-3. Adultery defined

Updated: 
November 28, 2023
Adultery is the voluntary sexual intercourse of a married person with one of the opposite sex to whom he or she is not married.
The effective date of this section is July 1, 1984.

25-4-4. Extreme cruelty defined

Updated: 
November 28, 2023

Extreme cruelty is the infliction of grievous bodily injury or grievous mental suffering upon the other, by one party to the marriage.

25-4-5. Willful desertion defined--Special conditions applicable

Updated: 
November 28, 2023
Willful desertion is the voluntary separation of one of the married parties from the other with intent to desert.
The special conditions or circumstances set forth in §§ 25-4-8 to 25-4-14, inclusive, shall also apply in establishing desertion under the provisions of this title.

25-4-8. Refusal of intercourse as desertion--Refusal to live together

Updated: 
November 28, 2023

Persistent refusal to have reasonable matrimonial intercourse as husband and wife when health or physical condition does not make such refusal reasonably necessary, or the refusal of either party to dwell in the same house with the other party when there is no just cause for such refusal, is desertion.

25-4-9. Desertion by departure during absence of spouse induced by fraud

Updated: 
November 28, 2023

When one party is induced by the stratagem or fraud of the other party to leave the family dwelling place or to be absent, and during such absence the offending party departs with intent to desert the other, it is desertion by the party committing the stratagem or fraud and not by the other.

25-4-10. Desertion by cruelty or threats causing departure of spouse

Updated: 
November 28, 2023
Departure or absence of one party from the family dwelling place caused by cruelty or by threats of bodily harm from which danger would be reasonably apprehended from the other is not desertion by the absent party, but it is desertion by the other party.

25-4-11. Separation by consent not desertion

Updated: 
November 28, 2023

Separation by consent with or without the understanding that one of the parties will apply for a divorce is not desertion.

25-4-12. Intent to desert formed during proper absence

Updated: 
November 28, 2023

Absence or separation proper in itself becomes a desertion whenever the intent to desert is fixed during such absence or separation.

25-4-13. Desertion by refusal of reconciliation after separation

Updated: 
November 28, 2023
Consent to a separation is a revocable act and if one of the parties afterwards in good faith seeks a reconciliation and restoration, but the other refuses it, such refusal is desertion.

25-4-15. Willful neglect defined

Updated: 
November 28, 2023

Willful neglect is the neglect of a person to provide the common necessaries of life for his or her spouse, when having the ability to do so; or it is the failure to do so by reason of idleness, profligacy, or dissipation.

25-4-16. Habitual intemperance defined

Updated: 
November 28, 2023

Habitual intemperance is that degree of intemperance from the use of intoxicating drinks which disqualifies the person a great portion of the time from properly attending to business, or which would reasonably inflict a course of great mental anguish upon the innocent party.

25-4-17.1. Irreconcilable differences defined

Updated: 
November 28, 2023
Irreconcilable differences are those grounds which are determined by the court to be substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved.

25-4-17.2. Dissolution of marriage--Legal separation--Continuance--Orders during continuance--Consent of parties

Updated: 
November 28, 2023

If from the evidence at the hearing, the court finds that there are irreconcilable differences, which have caused the irremediable breakdown of the marriage, it shall order the dissolution of the marriage or a legal separation. If it appears that there is a reasonable possibility of reconciliation, the court shall continue the proceeding for a period not to exceed thirty days. During the period of the continuance, the court may enter any order for the support and maintenance of the parties, the custody, support, maintenance, and education of the minor children of the marriage, attorney fees, and for the preservation of the property of the parties. At any time after the termination of the thirty-day period, either party may move for the dissolution of the marriage or a legal separation, and the court may enter its judgment decreeing the dissolution or separation.

The court may not render a judgment decreeing the legal separation or divorce of the parties on the grounds of irreconcilable differences without the consent of both parties unless one party has not made a general appearance.

25-4-30. Residence requirements for divorce or separate maintenance

Updated: 
November 28, 2023

The plaintiff in an action for divorce or separate maintenance must, at the time the action is commenced, be a resident of this state, or be stationed in this state while a member of the armed services. Subsequently, the plaintiff need not maintain that residence or military presence to be entitled to the entry of a decree or judgment of divorce or separate maintenance.

25-4-45. Child custody provisions--Modification--Preference of child

Updated: 
November 28, 2023

In an action for divorce, the court may, before or after judgment, give such direction for the custody, care, and education of the children of the marriage as may seem necessary or proper, and may at any time vacate or modify the same. In awarding the custody of a child, the court shall be guided by consideration of what appears to be for the best interests of the child in respect to the child’s temporal and mental and moral welfare. If the child is of a sufficient age to form an intelligent preference, the court may consider that preference in determining the question. As between parents adversely claiming the custody, neither parent may be given preference over the other in determining custody.

25-4-45.3. Adoption of fee schedule for home studies or investigations ordered by court in custody proceedings

Updated: 
November 28, 2023

The secretary of social services may, pursuant to chapter 1-26, adopt a schedule of fees for home studies or investigations ordered by the court in custody proceedings. The fees may not exceed actual costs and shall be based on the ability of the parties involved to pay for the home studies or investigations. The fees so adopted shall apply only to custody issues relating to or resulting from divorce or separate maintenance proceedings and shall not impose any fee or charges against the Unified Judicial System.

25-4-45.5. Consideration of domestic abuse and assault conviction in custody award

Updated: 
November 28, 2023
In awarding custody involving a minor, the court shall consider:
(1) A conviction of domestic abuse as defined in subdivision 25-10-1(1); or
(2) A conviction of assault against a person as defined in subdivision 25-10-1(2), except against any person related by consanguinity, but not living in the same household; or
(3) A history of domestic abuse.
 
The conviction or history of domestic abuse creates a rebuttable presumption that awarding custody to the abusive parent is not in the best interest of the minor. A history of domestic abuse may only be proven by greater convincing force of the evidence.

25-4-45.6. Consideration of conviction for death of other parent in custody award

Updated: 
November 28, 2023

In awarding custody or granting rights of visitation involving a minor, the court shall consider a conviction, excluding vehicular homicide, of a parent for the death of the other parent. A conviction for the death of the other parent creates a rebuttable presumption that awarding custody or granting visitation to the convicted parent is not in the best interests of the minor.

25-4-52. Visitation rights for grandparents--Enforcement by circuit court

Updated: 
November 28, 2023
The circuit court may grant grandparents reasonable rights of visitation with their grandchild, with or without petition by the grandparents, if the visitation is in the best interests of the grandchild and:
(1) If the visitation will not significantly interfere with the parent-child relationship; or
(2) If the parent or custodian of the grandchild has denied or prevented the grandparent reasonable opportunity to visit the grandchild.
 
The circuit court shall issue any orders necessary to enforce or to protect visitation rights granted pursuant to this section.
 
As used in this section, the term grandparents includes great-grandparents.

25-4-56. Custody and visitation disputes--Mediation order

Updated: 
November 28, 2023
In any custody or visitation dispute between parents, the court shall order mediation to assist the parties in formulating or modifying a plan, or in implementing a plan, for custody or visitation and shall allocate the cost of the mediation between the parties. However, mediation shall not be ordered if:
(1) One of the parents has been convicted of domestic abuse as defined in subdivision 25-10-1(1); or
(2) One of the parents has been convicted of assault against a person as defined in subdivision 25-10-1(2), except against any person related by consanguinity, but not living in the same household; or
(3) One of the parents has a history of domestic abuse; or
(4) Mediation is not readily available or the court determines that mediation is not appropriate based on the facts and circumstances of the case.
 
The court may also direct that an investigation be conducted to assist the court in making a custody or visitation determination and shall allocate the costs of such investigation between the parties. A history of domestic abuse may only be proven by greater convincing force of the evidence.

25-4-59. Privacy of mediation proceedings

Updated: 
November 28, 2023

The mediator shall conduct the mediation proceedings in private. The mediator may exclude counsel from participation in the mediation proceedings.

25-4-60. Confidentiality of mediation communications and mediator's work product

Updated: 
November 28, 2023

Any communication, oral or written, in a mediation proceeding pursuant to § 25-4-56 is confidential and inadmissible as evidence in any proceeding. A mediator appointed pursuant to § 25-4-56 may not be a witness, and the notes and work product of the mediator are not subject to discovery or subpoena in the proceeding in which the contested child custody or visitation is at issue.

25-4-61. Written mediated agreement--Signing--Court approval

Updated: 
November 28, 2023

The mediator shall reduce to writing any agreement of the parties. The mediator shall inform the parties of their right to review the agreement with counsel before they sign the agreement. After the agreement is signed by the parties, the mediator shall present the agreement to the court. The agreement is not binding upon the parties until approved by order of the court.

25-4-62. Recommendation by mediator to court upon parties' failure to agree

Updated: 
November 28, 2023

The mediator may report to the court at any time that the parties are unable to reach an agreement. The mediator may recommend to the court that the full hearing on the custody or visitation issue be held within thirty days. The mediator may not make a substantive recommendation to the court concerning the contested issue of custody or visitation.

25-4-63. Custody and visitation disputes--Appointment of parenting coordinator

Updated: 
November 28, 2023

In any custody or visitation dispute between parents, the court may appoint a parenting coordinator to assist the parents in resolving contested issues. The Supreme Court may promulgate rules pursuant to § 16-3-1 to prescribe the authority, duties, appointment, and compensation of parenting coordinators.

25-4-64. Parenting coordinator appointment at party request or on court’s own motion

Updated: 
November 28, 2023

At the request of either party, or on the court’s own motion, a parenting coordinator may be appointed in any custody or visitation proceeding. The parties may agree to use a parenting coordinator, subject to approval by the court, or the court may designate a parenting coordinator for the parties.

25-4-69. Parenting coordinator fees and costs

Updated: 
November 28, 2023

A parenting coordinator shall disclose how fees and costs will be calculated for any services rendered and such fees and costs are subject to the approval of the court. The fees and costs for any parenting coordinator shall be at the sole expense of the parties. The court will determine the allocation of any fees between the parties in the order of appointment and may through subsequent court order change the allocation of fees and reallocate fees already paid based on the circumstances of any particular case.

25-4-70. Duties of parenting coordinator

Updated: 
November 28, 2023
The court order appointing the parenting coordinator shall specify the scope of the appointment and authority of the parenting coordinator. Additionally, a parenting coordinator may be ordered to do one or more of the following:
(1) Inform the parties of the role of the parenting coordinator;
(2) Monitor implementation of a voluntary or court-ordered parenting plan, the schedule, or parenting time issues provided such resolution does not involve a substantive change to the court’s order;
(3) Recommend strategies for implementing the parenting plan or resolving other parenting issues that may be impacting the parenting plan;
(4) Assist the parties in developing communication and cooperation for the purpose of effective co-parenting of the children;
(5) Assist with implementation of court orders and make recommendations to the court regarding implementation, clarification, modification, and enforcement of any temporary or permanent parenting time orders;
(6) Exclude counsel for the parties from participating in any parenting coordinator sessions;
(7) Implement domestic violence safeguards as the court deems necessary. For example, ordering no direct communications or no joint meetings, ensuring compliance with all provisions of any protection order or order in a criminal proceeding;
(8) Document the services provided and record agreements reached;
(9) Recommend appropriate community resources to one or both parents;
(10) Educate the parties to effectively parent in a manner that minimizes conflict, develops appropriate parenting skills, identifies sources of conflict, and works to lessen the effect of conflict on the children;
(11) Make recommendations on the day-to-day issues experienced by the parties;
(12) Act to empower the parties in resuming parental controls and decision-making, and minimize the degree of conflict between the parties for the best interests of the children;
(13) Facilitate the ability of both parents to maintain ongoing relationships with the children;
(14) Only with the prior consent of the court as specified in the order of appointment, make limited decisions subject to review by the court upon motion of the parties as specified in the order of appointment. By way of example only, these issues include disagreements around exchanges, time-sensitive issues, holiday scheduling, discipline, health issues, school and extracurricular activities, and managing problematic behaviors by the parents or children; and
(15) Interview law enforcement, social workers, health care providers, daycare providers, teachers and family members as necessary to fulfill the terms of the court order. The parties shall be required to sign releases authorizing the parenting coordinator to speak to specific third parties about specific events.
 
A parenting coordinator shall not have the authority to make any decision affecting child support, a change of custody, or a substantial change in parenting time.
 
The order appointing the parenting coordinator shall provide direction to the parenting coordinator regarding information or records, if any, which the parenting coordinator is to file with the court. The parenting coordinator shall not engage in ex-parte communication with the court and all documents sent to or filed with the court shall also be sent to the parties in the case.

25-4-72. Authority of court

Updated: 
November 28, 2023

The appointment of a parenting coordinator does not divest the court of its exclusive jurisdiction to determine fundamental issues of custody, visitation and support, and the authority to exercise management and control of the case.

25-4-74. Communications with parenting coordinator not confidential

Updated: 
November 28, 2023

arenting coordination is not a confidential process. There is also no evidentiary privilege for communications made as part of the parenting coordination process. The parenting coordinator may be called to testify if ordered by the court in the case.

Chapter 25–4a. Custody and Visitation Rights

Updated: 
November 28, 2023

25-4A-1. Custody or visitation rights enforceable by contempt proceedings

Updated: 
November 28, 2023

After notice and hearing, any decree or order of the court relating to custody of or visitation with a child may be enforced by contempt.

25-4A-2. Written request for order to show cause for violation of visitation or custody decree--Hearing date

Updated: 
November 28, 2023

Any party granted visitation or custody rights to a child by a court decree may request the court to enter an order to show cause why the other party should not be held in contempt of court for violation of the decree relating to visitation or custody of the child. Upon receipt of a written request for an order to show cause, the court may issue such an order and forthwith schedule a hearing date not less than thirty days in the future. No particular formality may be required of the moving party in making a written request for an order to show cause.

25-4A-4.1. Motion for enforcement of visitation rights--Hearing

Updated: 
November 28, 2023

If a noncustodial parent believes that the custodial parent has willfully violated or willfully failed to comply with any provisions of a custody or visitation decree, the noncustodial parent may file with the court clerk a motion for enforcement of visitation rights. The motion shall be filed on a form provided by the court clerk. Upon filing of the motion, the court shall immediately set a hearing on the motion, which may not be more than twenty-one days after the filing of the motion.

25-4A-5. Sanctions for violation of custody or visitation decree

Updated: 
November 28, 2023
If the court finds that any party has willfully violated or willfully failed to comply with any provisions of a custody or visitation decree, the court shall impose appropriate sanctions to punish the offender or to compel the offender to comply with the terms of the custody or visitation decree.
The court may enter an order clarifying the rights and responsibilities of the parents and the court’s order. The court may order one or more of the following sanctions:
(1) To require the offender to provide the other party with make up time with the child equal to the time missed with the child, due to the offender’s noncompliance;
(2) To require the offender to pay, to the other party, court costs and reasonable attorney’s fees incurred as a result of the noncompliance;
(3) To require the offender to pay a civil penalty of not more than the sum of one thousand dollars;
(4) To require the offender to participate satisfactorily in counseling or parent education classes;
(5) To require the offender to post bond or other security with the court conditional upon future compliance with the terms of the custody or visitation decree or any ancillary court order;
(6) To impose a jail sentence on the offender of not more than three days; or
(7) In the event of an aggravated violation or multiple violations, the court may modify the existing visitation or custody situation, or both of any minor child.
 
The provisions of this section do not prohibit the court from imposing any other sanction appropriate to the facts and circumstances of the case.

25-4A-9. Standard guidelines defined

Updated: 
November 28, 2023

For the purposes of §§ 25-4A-9 to 25-4A-16, inclusive, the term, standard guidelines, means the parenting guidelines established by court rules promulgated by the South Dakota Supreme Court pursuant to § 25-4A-10.

25-4A-11. Plaintiff in custody action to file and serve guidelines--Guidelines as court order--Custody of minors

Updated: 
November 28, 2023

Upon the filing of a summons and complaint for divorce or separate maintenance or any other custody action or proceeding, the plaintiff shall also file and serve upon the defendant a copy of the standard guidelines. The standard guidelines attached to the summons shall become an order of the court upon fulfillment of the requirements of service. Any minor child of the marriage shall remain in the custody of the parent who has been the primary caregiver for the minor child for the majority of time in the twelve months preceding the filing of the summons and complaint, unless the parties agree otherwise. The standard guidelines shall apply and continue in effect, unless the parties agree, or the court orders otherwise. Imposition of the standard guidelines creates no presumption as to who may be awarded custody at any hearing.

25-4A-12. Visitation agreement other than standard guidelines--Requirements

Updated: 
November 28, 2023

Any agreement by the parties for visitation other than the standard guidelines shall be in writing, signed by both parties and filed with the court. The agreed plan shall be approved by court order and replace the standard guidelines or any plan previously filed.

25-4A-13. Objections to custody or visitation order--Hearing--Temporary order

Updated: 
November 28, 2023

If either party objects to the initial custody arrangement in § 25-4A-11 or the standard guidelines, the court shall order a hearing which shall be held not later than thirty days after the date of the objection. In making an order for temporary custody, the order for custody shall reflect the degree of each parent’s demonstrated participation in the child’s life. The court shall issue a temporary custody and visitation order after considering the best interests of the child consistent with the provisions of § 25-4-45. If the order for temporary custody results in less than a substantially equal parenting time, the court shall construct a parenting time schedule that maximizes the time each parent has with the child consistent with each parent’s demonstrated participation in the child’s life and is consistent with ensuring the child’s welfare. Each temporary custody order shall include specific findings of fact and conclusions of law, except if the court confirms the agreement of the parties.

25-4A-14. Standard guidelines subject to certain court orders

Updated: 
November 28, 2023

The standard guidelines are subject to any provision established by a South Dakota state court in the following: a temporary or permanent domestic protection order, an order arising out of an abuse or neglect proceeding, a bond condition arising out of a criminal case, and an order in any other proceeding affecting child custody or support.

25-4A-17. Notice required before relocating child--Exceptions

Updated: 
November 28, 2023
If an existing custody order or other enforceable agreement does not expressly govern the relocation of the principal residence of a child, a parent who intends to change his or her principal residence shall, provide reasonable written notice by certified mail or admission of service to the other legal parent of the child. Reasonable notice is notice that is given at least forty-five days before relocation or a shorter period if reasonable under the specific facts giving rise to the relocation. Proof of the notice shall be filed with the court of record unless notice is waived by the court.
No notice need be provided pursuant to this section if:
(1) The relocation results in the child moving closer to the noncustodial parent; or
(2) The relocation is within the boundaries of the child’s current school district; or
(3) There is an existing valid protection order in favor of the child or the custodial parent against the noncustodial parent unless the noncustodial parent has a valid order for parenting time established either in the protection order file or another custody proceeding subsequent to the entry of the protection order; or
(4) Within the preceding twelve months, the nonrelocating parent has been convicted of violation of a protection order, criminal assault, child abuse, or other domestic violence and either the child or the custodial parent was the victim of the crime or violation unless the noncustodial parent has a valid order for parenting time established subsequent to the conviction.

25-4A-18. Contents of notice of relocation

Updated: 
November 28, 2023
The notice required in § 25-4A-17 shall contain the following:
(1) The address and telephone number, if known, of the new residence;
(2) The purpose for relocating;
(3) Why the relocation is in the best interest of the child; and
(4) The relocating party’s proposed visitation plan for the nonrelocating parent upon relocation.
 
If a relocating parent is giving notice of relocation in compliance with subdivisions 25-4A-17(3) or (4), the address requirement in subdivision (1) of this section is fulfilled if the notice contains the city and state of the new residence.

25-4A-19. Request for hearing on relocation--Presumption of consent--Best interests of child

Updated: 
November 28, 2023

At the request of the nonrelocating parent, made within thirty days of the notice of relocation, the court shall hold a hearing on the relocation. If no request for hearing is made within thirty days of notice, the relocation is presumed to be consented to by the nonrelocating parent. If an objection to the relocation is filed, the court shall consider the traditional best interest of the child factors when determining a proposed relocation that would result in a substantial alteration to the existing parenting time arrangement.

25-4A-20. Presumption that granting custody or visitation rights to person causing conception by rape or incest not in best interest of child

Updated: 
November 28, 2023

There shall be a rebuttable presumption that it is not in the best interest of the child for the court to place the child in the custody of or to grant visitation rights to a person that the court has found by a standard of clear and convincing evidence to have committed an act of rape or incest against the other parent that resulted in the conception of the child. The court may revoke visitation rights upon such a finding.

25-4A-21. Joint physical custody--Consideration upon application--Findings

Updated: 
November 28, 2023
In any custody dispute between parents, upon application of either parent, the court shall consider granting joint physical custody of a minor child.
The court shall consider the factors set forth in § 25-4A-24, and shall make written findings of fact and conclusions of law regarding the best interests of the minor child, unless waived by both parties.

25-4A-24. Factors for consideration on request for joint physical custody

Updated: 
November 28, 2023
In considering a contested request for joint physical custody, in addition to the traditional factors for determining the best interests of a child, the court shall consider the following factors:
(1) Whether each parent is a suitable physical custodian for the child;
(2) Whether each parent has an appropriate dwelling to support physical custody of the child;
(3) Whether the psychological and emotional needs and the development of the child will suffer due to lack of active contact with, and attention from, both parents if joint physical custody is not granted;
(4) Whether one parent has denied, without just cause, the child the opportunity for continuing contact with the other parent. Facts supporting an application of the presumption in § 25-4-45.5 constitute just cause;
(5) Whether the parents can show mutual respect for and effectively communicate with each other regarding the child’s needs. When considering this factor, the court shall include a determination of the degree to which the parents are in general agreement about their approach to daily child rearing matters;
(6) The extent to which both parents actively care for the child;
(7) Whether each parent can support the other parent’s relationship with the child. When considering this factor, the court shall include a determination of conflict between the parents, as joint physical custody requires substantial and regular interaction between the parents on a myriad of issues;
(8) Whether the joint physical custody arrangement is in accord with the child’s wishes or whether the child has strong opposition to joint physical custody, taking into consideration the child’s age, maturity, and reason for the objection;
(9) Whether a parent has intentionally alienated or interfered with the other parent’s relationship with the child;
(10) Whether one or both parents are opposed to joint physical custody. A parent’s opposition to joint physical custody is not determinative in itself, but only one factor for the court to consider;
(11) The geographic proximity of the parents;
(12) Whether the safety of the child, other children, or the other parent will be jeopardized by an award of joint physical custody;
(13) Whether a parent allows another person custody or control of, or unsupervised access to, a child after knowing the person is required to register or is on the sex offender registry as a sex offender under chapter 22-24B;
(14) Whether a parent has attempted to influence a custody determination by alleging, falsely or without good cause, that the child or the sibling of the child has been subjected to physical or sexual abuse or abuse and neglect, as set forth in § 25-4-45.8;
(15) Whether a parent is physically and mentally capable of providing temporal, mental, and moral wellness for the child;
(16) Whether a parent has the capacity and disposition to provide the child with protection, food, clothing, medical care, and other basic needs;
(17) Whether a parent is willing and capable to provide the child love, affection, guidance, and education in order to impart the family’s religion or creed;
(18) Whether a parent is committed to prepare the child for responsible adulthood, as well as to ensure that the child experiences a fulfilling childhood;
(19) Whether a parent provides exemplary modeling so that the child witnesses firsthand what it means to be a good parent, a loving spouse, and a responsible citizen;
(20) Whether a parent provides a stable and consistent home environment including the relationship and interaction of the child with the parents, stepparents, siblings, and extended families;
(21) The extent of the child’s adjustment in regards to home, school, and community;
(22) Whether a break in attachment with the parent whom the child has formed a closer attachment would cause detriment due to the break in continuity for the child; and
(23) Whether a parent is guilty of misconduct that may have a harmful effect on the child.

25-4A-25. Parental agreement for joint physical custody

Updated: 
November 28, 2023

If both parents agree to joint physical custody of a child, the court is not required to consider the factors set forth in § 25-4A-24.

25-4A-26. No presumption of joint physical custody

Updated: 
November 28, 2023

Nothing in §§ 25-4A-21 to 25-4A-27, inclusive, creates a presumption of joint physical custody. The court shall determine the appropriate physical care, custody, and control of a minor child based on a determination of the best interests of the child.

25-4A-27. Modification of existing orders

Updated: 
November 28, 2023

The enactment of §§ 25-4A-21 to 25-4A-27, inclusive, does not constitute a substantial change in circumstances justifying the modification of existing custody orders, but the provisions of §§ 25-4A-21 to 25-4A-27, inclusive, shall apply to modification proceedings which are otherwise properly before the court.

Chapter 4b. Uniform Deployed Parents Custody and Visitation Act

Updated: 
November 28, 2023

25-4B-102. Definitions

Updated: 
November 28, 2023
Terms used in this chapter mean:
(1) “Adult,” an individual who has attained eighteen years of age or an emancipated minor;
(2) “Caretaking authority,” the right to live with and care for a child on a day-to-day basis. The term includes physical custody, parenting time, right to access, and visitation;
(3) “Child,”:
(a) An unemancipated individual who has not attained eighteen years of age; or
(b) An adult son or daughter by birth or adoption, or under law of this state other than this chapter, who is the subject of a court order concerning custodial responsibility;
(4) “Court,” a tribunal, including an administrative agency, authorized under law of this state other than this chapter to make, enforce, or modify a decision regarding custodial responsibility;
(5) “Custodial responsibility,” includes all powers and duties relating to caretaking authority and decision-making authority for a child. The term includes physical custody, legal custody, parenting time, right to access, visitation, and authority to grant limited contact with a child;
(6) “Decision-making authority,” the power to make important decisions regarding a child, including decisions regarding the child’s education, religious training, health care, extracurricular activities, and travel. The term does not include the power to make decisions that necessarily accompany a grant of caretaking authority;
(7) “Deploying parent,” a servicemember, who is deployed or has been notified of impending deployment and is:
(a) A parent of a child under law of this state other than this chapter; or
(b) An individual who has custodial responsibility for a child under law of this state other than this chapter;
(8) “Deployment,” the movement or mobilization of a servicemember for more than ninety days but less than eighteen months pursuant to uniformed service orders that:
(a) Are designated as unaccompanied;
(b) Do not authorize dependent travel; or
(c) Otherwise do not permit the movement of family members to the location to which the servicemember is deployed;
(9) “Family member,” a sibling, aunt, uncle, cousin, stepparent, or grandparent of a child or an individual recognized to be in a familial relationship with a child under law of this state other than this chapter;
(10) “Limited contact,” the authority of a nonparent to visit a child for a limited time. The term includes authority to take the child to a place other than the residence of the child;
(11) “Nonparent,” an individual other than a deploying parent or other parent;
(12) “Other parent,” an individual who, in common with a deploying parent, is:
(a) A parent of a child under law of this state other than this chapter; or
(b) An individual who has custodial responsibility for a child under law of this state other than this chapter;
(13) “Record,” information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form;
(14) “Return from deployment,” the conclusion of a servicemember’s deployment as specified in uniformed service orders;
(15) “Servicemember,” a member of a uniformed service;
(16) “Sign,” with present intent to authenticate or adopt a record:
(a) To execute or adopt a tangible symbol; or
(b) To attach to or logically associate with the record an electronic symbol, sound, or process;
(17) “State,” a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States;
(18) “Uniformed service,”:
(a) Active and reserve components of the Army, Navy, Air Force, Marine Corps, or Coast Guard of the United States;
(b) The United States Merchant Marine;
(c) The commissioned corps of the United States Public Health Service;
(d) The commissioned corps of the National Oceanic and Atmospheric Administration of the United States; or
(e) The National Guard of a state.

25-4B-107. General consideration in custody proceeding of parent’s military service

Updated: 
November 28, 2023

In a proceeding for custodial responsibility of a child of a servicemember, a court may not consider a parent’s past deployment or possible future deployment in itself in determining the best interest of the child. However, if upon return from the deployment either the servicemember or child exhibits a substantial and material change in circumstances that adversely affects the servicemember’s ability to adequately care for the child, the best interests of the child shall be determinative.

Chapter 5. Parent and Child

Updated: 
November 28, 2023

25-5-3. Presumption of parentage

Updated: 
November 28, 2023

The husband and wife are presumed to be the parents of any child born to the wife during the marriage or within ten months after the dissolution of the marriage.

25-5-7. Parents equally entitled to custody and earnings of child born in wedlock

Updated: 
November 28, 2023

Subject to the court’s right to award custody of the child to either parent, considering the best interest of the child as to its temporal, mental, and moral welfare the father and mother of any minor child born in wedlock are equally entitled to the child’s custody, service, and earnings.

25-5-7.1. Joint legal custody order--Factors for court's consideration

Updated: 
November 28, 2023

In any custody dispute between parents, the court may order joint legal custody so that both parents retain full parental rights and responsibilities with respect to their child and so that both parents must confer on, and participate in, major decisions affecting the welfare of the child. In ordering joint legal custody, the court may consider the expressed desires of the parents and may grant to one party the ultimate responsibility over specific aspects of the child’s welfare or may divide those aspects between the parties based on the best interest of the child. If it appears to the court to be in the best interest of the child, the court may order, or the parties may agree, how any such responsibility shall be divided. Such areas of responsibility may include the child’s primary physical residence, child care, education, extracurricular activities, medical and dental care, religious instruction, the child’s use of motor vehicles, and any other responsibilities which the court finds unique to a particular family or in the best interest of the child. If the court awards joint legal custody, it may also order joint physical custody in such proportions as are in the best interests of the child, notwithstanding the objection of either parent.

25-5-7.3. Parents to have equal access to records pertaining to child--Name and address of both parents to be listed

Updated: 
November 28, 2023

Access to records and information pertaining to a minor child, including, but not limited to, medical, dental, orthodontia, optometric and similar health care, and school records shall be made equally available to both parents. Counseling, psychiatric, psychotherapy, and other records subject to confidentiality or privilege shall only be released in accordance with state and federal law; but, if available to one parent, shall be available to both. The parents shall make reasonable efforts to ensure that the name and address of the other parent is listed on all such records.

25-5-7.4. Written applications to enroll child in activity or program to provide name and address of other parent

Updated: 
November 28, 2023

If either parent enrolls the child in any social, beneficent, religious, or peer group activity, service, benefit, or program for which written application is required, the enrolling parent shall provide the name and address of the other parent on, or supplementary to, the application. The provisions of this section do not apply to any written application for any type of annuity or insurance.

25-5-7.5. Access to records and application requirements not applicable to certain parents

Updated: 
November 28, 2023
The provisions of §§ 25-5-7.3 and 25-5-7.4 do not apply in any case in which a court has:
(1) Terminated the rights of either parent; or
(2) Restrained either parent, by court order, from contact with the child.
 
Moreover, a court of competent jurisdiction may determine that the application of § 25-5-7.3 or 25-5-7.4, or both, is inappropriate under the facts and circumstances of any particular case.

25-5-7.6. Parent sharing custody to foster other parent's relationship with child

Updated: 
November 28, 2023

Each parent sharing joint legal custody of their child shall foster the other parent’s relationship with the child.

25-5-10. Custody and earnings of children born out of wedlock

Updated: 
November 28, 2023

The mother of an unmarried minor born out of wedlock is entitled to its custody, services, and earnings subject to the court’s right to award custody of the child to either parent, considering the best interests of the child as to its temporal, mental, and moral welfare.

25-5-10.1. Best interest of child not presumed--Change of custody

Updated: 
November 28, 2023

Notwithstanding any initial entitlement to custody pursuant to § 25-5-10, there is no legal presumption that such custody is in the best interest of the child, nor is a change of circumstances required for a change of the initial custody as determined by § 25-5-10.

25-5-18.1. Parental duty to support child

Updated: 
November 28, 2023

The parents of any child are under a legal duty to support their child in accordance with the provisions of § 25-7-6.1, until the child attains the age of eighteen, or until the child attains the age of nineteen if the child is a full-time student in a secondary school. If it is determined by the court that the child support obligation survives the death of the parent, the amount due may be modified, revoked, or commuted to a lump sum payment by the court, taking into consideration all factors deemed relevant, including the financial resources of the child and the other parent and the needs of the decedent’s family.

25-5-29. Person other than parent permitted to seek custody of child--Parent's presumptive right to custody--Rebuttal

Updated: 
November 28, 2023
Except for proceedings under chapter 26-7A, 26-8A, 26-8B, or 26-8C, the court may allow any person other than the parent of a child to intervene or petition a court of competent jurisdiction for custody or visitation of any child with whom he or she has served as a primary caretaker, has closely bonded as a parental figure, or has otherwise formed a significant and substantial relationship. It is presumed to be in the best interest of a child to be in the care, custody, and control of the child’s parent, and the parent shall be afforded the constitutional protections as determined by the United States Supreme Court and the South Dakota Supreme Court. A parent’s presumptive right to custody of his or her child may be rebutted by proof:
(1) That the parent has abandoned or persistently neglected the child;
(2) That the parent has forfeited or surrendered his or her parental rights over the child to any person other than the parent;
(3) That the parent has abdicated his or her parental rights and responsibilities; or
(4) That other extraordinary circumstances exist which, if custody is awarded to the parent, would result in serious detriment to the child.

25-5-30. Circumstances suggesting serious detriment to child

Updated: 
November 28, 2023
Serious detriment to a child may exist whenever there is proof of one or more of the following extraordinary circumstances:
(1) The likelihood of serious physical or emotional harm to the child if placed in the parent’s custody;
(2) The extended, unjustifiable absence of parental custody;
(3) The provision of the child’s physical, emotional, and other needs by persons other than the parent over a significant period of time;
(4) The existence of a bonded relationship between the child and the person other than the parent sufficient to cause significant emotional harm to the child in the event of a change in custody;
(5) The substantial enhancement of the child’s well-being while under the care of a person other than the parent;
(6) The extent of the parent’s delay in seeking to reacquire custody of the child;
(7) The demonstrated quality of the parent’s commitment to raising the child;
(8) The likely degree of stability and security in the child’s future with the parent;
(9) The extent to which the child’s right to an education would be impaired while in the custody of the parent; or
(10) Any other extraordinary circumstance that would substantially and adversely impact the welfare of the child.

Chapter 25–7. Support Obligations

Updated: 
November 28, 2023

25-7-6.2. Support obligation schedule

Updated: 
December 31, 2023

The child support obligation must be established in accordance with the following schedule subject to the revisions or deviations as permitted by this chapter. Except as provided in this chapter, the combined monthly net incomes of both parents must be used in determining the obligation to be divided proportionately between the parents based upon their respective net incomes. The noncustodial parent’s proportionate share establishes the amount of the child support order.

The emboldened areas of the schedule include a self-support reserve of eight hundred seventy-one dollars per month that accounts for the subsistence needs of the obligated parent with a limited ability to pay. If the obligation using only the noncustodial parent’s monthly net income is an obligation within the emboldened areas of the schedule, that amount must be compared to the noncustodial parent’s proportionate share using both parents’ monthly net incomes. The lesser amount establishes the noncustodial parent’s child support order.

[Note from WomensLaw: The statute has a chart here that we cannot include; you can access it on the South Dakota Legislature’s website.]

25-7-6.3. Determination of parents' monthly net income--Sources of income

Updated: 
December 31, 2023

The monthly net income of each parent shall be determined by the parent’s gross income less allowable deductions, as set forth in this chapter. The monthly gross income of each parent includes amounts received from the following sources:

(1) Compensation paid to an employee for personal services, whether salary, wages, commissions, bonus, or otherwise designated;

(2) Self-employment income including gain, profit, or loss from a business, farm, or profession;

(3) Periodic payments from pensions or retirement programs, including social security or veteran’s benefits, disability payments, or insurance contracts;

(4) Interest, dividends, rentals, royalties, or other gain derived from investment of capital assets;

(5) Gain or loss from the sale, trade, or conversion of capital assets;

(6) Reemployment assistance or unemployment insurance benefits;

(7) Worker’s compensation benefits; and

(8) Benefits in lieu of compensation including military pay allowances.

 

Overtime wages, commissions, and bonuses may be excluded if the compensation is not a regular and recurring source of income for the parent. Income derived from seasonal employment shall be annualized to determine a monthly average income.

25-7-6.4. Rebuttable presumption of employment at minimum wage

Updated: 
December 31, 2023

Except as provided in § 25-7-6.26, it is presumed for the purposes of determination of child support that a parent is capable of being employed a minimum of one thousand eight hundred twenty hours per year, and the parent’s child support obligation must be calculated at a rate not less than one thousand eight hundred twenty hours at the state minimum wage.

25-7-6.5. Assets considered when income insufficient

Updated: 
December 31, 2023

If a child’s needs are not being met through the income of the parents, assets shall be considered. If the parents have savings, life insurance, or other assets in amounts unrelated to income, these holdings shall be considered. The parents’ ability to borrow may be used to determine financial ability.

25-7-6.7. Allowable deductions from monthly gross income

Updated: 
December 31, 2023

Deductions from monthly gross income shall be allowed as follows:

(1) Income taxes payable based on the applicable tax rate for a single taxpayer with one withholding allowance and a monthly payroll period rather than the actual tax rate;

(2) Social security and medicare taxes based on the applicable tax rate for an employee or a self-employed taxpayer;

(3) Contributions to an IRS qualified retirement plan not exceeding ten percent of gross income;

(4) Actual business expenses of an employee, incurred for the benefit of his employer, not reimbursed;

(5) Payments made on other support and maintenance orders.

25-7-6.10. Factors considered for deviation from schedule

Updated: 
December 31, 2023

Deviation from the schedule in § 25-7-6.2 must be considered if raised by either party and made only upon the entry of specific findings based upon any of the following factors:

(1) The income of a subsequent spouse or contribution of a third party to the income or expenses of that parent but only if the application of the schedule works a financial hardship on either parent;

(2) Any financial condition of either parent that would make application of the schedule inequitable. If the total amount of the child support obligation, including any adjustments for health insurance and child care costs, exceeds fifty percent of the obligor’s monthly net income, it is presumed that the amount of the obligation imposes a financial hardship on the obligor. This presumption may be rebutted based upon other factors set forth in this section;

(3) Any necessary education or health care special needs of the child;

(4) The effect of agreements between the parents regarding extra forms of support for the direct benefit of the child;

(5) The obligation of either parent to provide for subsequent natural children, adopted children, or stepchildren. However, an existing support order may not be modified solely for this reason; or

(6) The voluntary and unreasonable act of a parent that causes the parent to be unemployed or underemployed, consistent with the provisions of § 25-7-6.26.

25-7-6.15. Allocation of travel costs by court

Updated: 
November 28, 2023

If travel costs are substantial due to the distance between the parents, the court may order the allocation of such costs, taking into consideration the circumstances of the respective parties as well as which parent moved and the reason that the move was made.

25-7-6.16. Medical support--Insurance--Computation of costs--Apportionment between parents

Updated: 
December 31, 2023

The court shall enter an order addressing how the child’s health care needs will be met by medical support. The medical support order must include a provision for medical insurance if the insurance is accessible for the child and available to a parent at reasonable cost. Enrollment in public health coverage does not satisfy the medical support obligation if medical insurance is available to one or both of the parents at a reasonable cost and is accessible for the child. Medical insurance is considered accessible if a medical insurance benefit plan is available and provides coverage for the child residing within the geographic area covered by the insurance policy. Medical insurance is considered reasonable in cost if the cost attributable to the child is equal to or less than eight percent of the parent’s net income as determined under this chapter, after proportionate medical support credit is applied, and the amount must be specified in the order for support.

The cost of the insurance attributable to the child is the cost of adding the child to existing coverage, the cost of private medical insurance for the child, or the cost attributable to the child under family coverage. The cost attributable to the child under family coverage is the cost to the parent to obtain family coverage divided by the number of individuals enrolled in the family coverage. The cost so computed must be apportioned between the parents on the basis of income or income imputed as provided in this chapter. If one parent pays the entire amount, that parent shall either be reimbursed by the other parent for that parent’s portion of the payment or shall receive a credit against the support obligation, whichever is appropriate. Any additional, reasonable health care costs, including medical, optometric, dental or orthodontic, or counseling costs for each minor child that exceed two hundred fifty dollars in any year and are not covered by insurance, must be apportioned between the parents in proportion to the support obligation of each parent. The parent that has primary physical custody of the child is responsible for the first two hundred fifty dollars of health care costs each calendar year.

25-7-6.18. Order allocating child care expenses

Updated: 
November 28, 2023

The court may enter an order allocating the reasonable child care expenses for the child, which are due to employment of either parent, job search of either parent, or the training or education of either parent necessary to obtain a job or enhance earning potential. The court may consider whether the federal child care tax credit for such minor child is available as a benefit to the custodial parent. If the federal child care tax credit is available to the custodial parent, it shall be calculated at twenty-five percent of the eligible expense.

25-7-6.27. Shared parenting child support cross credit

Updated: 
December 31, 2023

If a custody order by the court, contains a detailed shared parenting plan which provides that the child will reside no less than one hundred eighty nights per calendar year in each parent’s home, and that the parents will share the duties and responsibilities of parenting the child and the expenses of the child in proportion to their incomes, the court may, if deemed appropriate under the circumstances, grant a cross credit on the amount of the child support obligation based on the number of nights the child resides with each parent. The shared parenting child support cross credit shall be calculated as follows:

(1) Multiply the parents’ combined child support obligation under the schedule by 1.5 to establish the parents’ combined shared parenting child support obligation;

(2) Multiply the combined shared parenting child support obligation by each parent’s percentage share of the parents’ combined net incomes to establish each parent’s shared parenting child support obligation;

(3) Multiply each parent’s shared parenting child support obligation by the percentage of nights the child resides with each parent based on a three hundred sixty-five day calendar year to establish each parent’s prorated shared parenting child support obligation;

(4) Offset the parents’ prorated shared parenting child support obligations; and

(5) The parent with the larger prorated shared parenting child support obligation shall pay the difference between these amounts.

 

In deciding whether a shared parenting child support cross credit is appropriate, the court shall consider whether it would have a substantial negative effect on the child’s standard of living.

 

It is presumed that the parenting time is exercised. If the parenting time exercised substantially deviates from the parenting time ordered, either party may petition the court for a modification of the support order without showing any other change in circumstances.

25-7-7.1. Continuation of duty to support

Updated: 
November 28, 2023

A parent’s duty to support his child continues if the child is placed with the Department of Social Services for custody, for temporary guardianship, or for care and placement.

Chapter 25–7a. Collection of Child Support

Updated: 
November 28, 2023

25-7A-21.1. Order establishment case--Limitation on prior-period support obligations or arrearages

Updated: 
November 28, 2023

In any order establishment case, the custodian is limited to a prior-period support obligation or arrearage not exceeding three years before either the date of application with any Title IV-D agency, the date of filing with a court of competent jurisdiction, or the date of a written demand served personally or by registered or certified mail, return receipt requested, upon the noncustodial parent at the noncustodial parent’s last known address, whichever occurs earlier.

Chapter 10. Protection From Domestic Abuse

Updated: 
November 28, 2023

25-10-1 Definitions

Updated: 
November 28, 2023

Terms used in this chapter mean:

(1) “Domestic abuse,” physical harm, bodily injury, or attempts to cause physical harm or bodily injury, or the infliction of fear of imminent physical harm or bodily injury when occurring between persons in a relationship described in § 25-10-3.1. Any violation of § 25-10-13 or chapter 22-19A or any crime of violence as defined in subdivision 22-1-2(9) constitutes domestic abuse if the underlying criminal act is committed between persons in such a relationship;

(2) “Protection order,” an order restraining any person in a relationship described in § 25-10-3.1 from committing any act of domestic abuse or an order excluding any person in a relationship described in § 25-10-3.1 from the dwelling or residence of another person in such a relationship, whether or not the dwelling or residence is shared. A protection order has a duration of five years or less; and

(3) “Temporary protection order,” an order restraining any person in a relationship described in § 25-10-3.1 from committing any act of domestic abuse or an order excluding any person in a relationship described in § 25-10-3.1 from the dwelling or residence of another person in such a relationship, whether or not the dwelling or residence is shared. A temporary protection order has a duration of thirty days except as provided in § 25-10-7.1.



25-10-2 Application for relief -- Filing -- Venue

Updated: 
November 28, 2023

An application for relief under this chapter may be filed in circuit court or in a magistrate court with a magistrate judge presiding. Venue lies where any party to the proceedings resides.


25-10-3 Petition for protection order -- Parties -- Allegations -- Affidavit -- Pending action -- Standard petition form

Updated: 
November 28, 2023

There exists an action known as a petition for a protection order in cases of domestic abuse. Procedures for the action are as follows:

(1) A petition under this section may be made by any person in a relationship described in § 25-10-3.1 against any other person in such a relationship;

(2) A petition shall allege the existence of domestic abuse and shall be accompanied by an affidavit made under oath stating the specific facts and circumstances of the domestic abuse; and

(3) A petition for relief may be made whether or not there is a pending lawsuit, complaint, petition, or other action between the parties. However, if there is any other lawsuit, complaint, petition, or other action pending between the parties, any new petition made pursuant to this section shall be made to the judge previously assigned to the pending lawsuit, petition, or other action, unless good cause is shown for the assignment of a different judge.

The clerk of the circuit court shall make available standard petition forms with instructions for completion to be used by a petitioner.

25-10-3.1. Persons entitled to apply for protection order

Updated: 
November 28, 2023

Any person who is involved in one of the following relationships with another party:
(1) Spouse or former spouse;
(2) Is in a significant romantic relationship or has been in one during the past twelve months with the abusing party;
(3) Has a child or is expecting a child with the abusing party;
(4) Parent and child, including a relationship by adoption, guardianship, or marriage; or
(5) Siblings, whether of the whole or half blood, including a relationship through adoption or marriage;
is entitled to apply for a protection order or a temporary protection order pursuant to the provisions of this chapter.

25-10-3.2. Factors for determining significant romantic relationship

Updated: 
November 28, 2023

For purposes of chapter 25-10, when determining whether a relationship is a significant romantic relationship, the court shall consider, among others, the following factors:

(1) The length of time of the relationship;

(2) The frequency of interaction between the parties;

(3) The characteristics and the type of the relationship.

25-10-4 Hearing -- Time -- Service on respondent

Updated: 
November 28, 2023

Upon receipt of the petition, if sufficient grounds are alleged for relief, the court shall order a hearing which shall be held not later than thirty days from the date of the order unless for good cause the court grants a continuance. Personal service of the petition, affidavit, and notice for hearing shall be made on the respondent not less than five days prior to the hearing.


25-10-5 Relief authorized on finding abuse -- Time limitation

Updated: 
November 28, 2023

Upon notice and a hearing, if the court finds by a preponderance of the evidence that domestic abuse has taken place, the court may provide relief as follows:

(1) Restrain any party from committing acts of domestic abuse;

(2) Exclude the abusing party from the dwelling which the parties share or from the residence of the petitioner;

(3) Award temporary custody or establish temporary visitation with regards to minor children of the parties;

(4) Establish temporary support for minor children of the parties or a spouse;

(5) Order that the abusing party obtain counseling;

(6) Order other relief as the court deems necessary for the protection of the person to whom relief is being granted, including orders or directives to a sheriff or constable.

Any relief granted by the order for protection shall be for a fixed period and may not exceed five years.

If any minor child resides with either party, the court shall order that the restrained person receive instruction on parenting approved or provided by the Department of Social Services as part of any relief granted.


25-10-5.1 Counseling required for domestic abuse defendant placed on probation

Updated: 
November 28, 2023

If a court places a defendant on probation upon receiving a verdict or plea of guilty for a crime involving domestic abuse, the court shall order that a condition of the defendant’s probation is that the defendant attend domestic abuse counseling. Failure to attend domestic abuse counseling is a violation of the defendant’s probation. Domestic abuse counseling includes issues of power and control, accountability, emotional regulation, or cognitive work addressing errors in thinking. The court may recommend individual or group counseling meeting the requirements of domestic abuse counseling, where available.

 

25-10-5.2 Restrictions on issuance of mutual orders for protection against abuse

Updated: 
November 28, 2023

No court may, pursuant to the provisions of § 25-10-5, issue a mutual order enjoining both petitioner and respondent from committing acts of domestic abuse unless:

(1) Both the petitioner and the respondent personally appear;

(2) The respondent alleges, under oath, the existence of domestic abuse by stating the specific facts and circumstances of the domestic abuse;

(3) The court finds, by a preponderance of the evidence, that domestic abuse has taken place.


25-10-5.3 Court to require instruction in parenting as part of sentence in certain convictions -- Exception

Updated: 
November 28, 2023

If any person is convicted of a crime involving domestic abuse, and that person is the parent, guardian, or custodian of a minor child who resides with that person or the victim of the crime, the court shall include as part of the sentence, or conditions required as part of the suspended execution or imposition of such sentence, that the person receive instruction on parenting approved or provided by the Department of Social Services. However, this section does not apply to any person convicted and imprisoned for any felony for such a duration that there is no expectation of release for at least four years.


25-10-6. Ex parte temporary protection order

Updated: 
November 28, 2023

If an affidavit filed with an application under this chapter alleges that immediate and irreparable injury, loss, or damage will result before an adverse party or his or her attorney can be heard in opposition, the court may grant an ex parte temporary protection order pending a full hearing and granting relief as the court deems proper, including an order:

(1) Restraining any person in a relationship described in § 25-10-3.1 from committing acts of domestic abuse;

(2) Excluding any person in a relationship described in § 25-10-3.1 from the dwelling or the residence of the petitioner.

25-10-7 Limited duration of temporary order--Service on respondent

Updated: 
November 28, 2023

An ex parte temporary protection order is effective for a period of thirty days except as provided in § 25-10-7.1 unless for good cause the court grants a continuance. No continuance may exceed thirty days unless the court finds good cause for the additional continuance and:

(1) The parties stipulate to an additional continuance; or

(2) The court finds that law enforcement is unable to locate the respondent for purposes of service of the ex parte protection order.

If a continuance is granted, the court by order shall extend the ex parte temporary protection order until the rescheduled hearing date. The respondent shall be personally served without delay with a copy of the ex parte order along with a copy of the petition, affidavit, and notice of the date set for the hearing. The ex parte order shall be served without delay under the circumstances of the case including service of the ex parte order on a Sunday or holiday. The law enforcement agency serving the order shall notify the petitioner by telephone or written correspondence when the order is served if the petitioner has provided to the law enforcement agency either a telephone number or address, or both, where the petitioner may be contacted. The law enforcement agency and any officer of the law enforcement agency is immune from civil and criminal liability if the agency or the officer makes a good faith attempt to notify the petitioner in a manner consistent with the provisions of this section.

25-10-7.1 Temporary order effective until order under 25-10-5 served

Updated: 
November 28, 2023

If an ex parte temporary protection order is in effect and a judge issues a protection order pursuant to § 25-10-5, the ex parte temporary protection order remains effective until the order issued pursuant to § 25-10-5 is served on the respondent.


25-10-8 Security not required of petitioner -- Exception

Updated: 
November 28, 2023

The court may not require an undertaking or other security of any party to a petition for an order of protection other than in exceptional circumstances.


25-10-9 Departure of petitioner from household not waiving right to relief

Updated: 
November 28, 2023

A person’s right to apply for relief under this chapter may not be affected by the departure of that person from the residence or household to avoid abuse.


25-10-10 Modification of order

Updated: 
November 28, 2023

Upon application, notice to all parties, and hearing, the court may modify the terms of an existing order for protection.


25-10-11 Real estate titles not affected

Updated: 
November 28, 2023

No order issued pursuant to this chapter may affect title to real estate.


25-10-12 Delivery of order to law enforcement agencies

Updated: 
November 28, 2023

The petitioner may deliver an order for protection granted pursuant to this chapter within twenty-four hours to the local law enforcement agency having jurisdiction over the residence of the petitioner. Each appropriate law enforcement agency shall make available to other law enforcement officers information as to the existence and status of any order for protection issued pursuant to this chapter.


25-10-12.1 Enforcement of foreign protective orders -- Requirements

Updated: 
November 28, 2023

Any domestic abuse protection order, or any stalking or physical violence protection order, issued by a court of competent jurisdiction of another state, Indian tribe, the District of Columbia, or a commonwealth, territory, or possession of the United States is enforceable as if the order was issued by a court in this state if all of the following requirements are satisfied:

(1) The respondent received notice of the order in compliance with requirements of the issuing jurisdiction;

(2) The order is in effect in the issuing jurisdiction;

(3) The issuing court had jurisdiction over the parties and the subject matter;

(4) The respondent is or has been afforded reasonable notice and opportunity to be heard sufficient to protect that person’s right to due process in the issuing jurisdiction. In the case of ex parte orders, notice and opportunity to be heard is or has been provided within the time required by the law of the issuing jurisdiction; and, in any event, within a reasonable time after the order was issued, sufficient to protect the respondent’s due process rights;

(5) If the order also provides protection for the respondent, a petition, application, or other written pleading was filed with the issuing court seeking such an order and the issuing court made specific findings that the respondent was entitled to the order; and

(6) The prohibited conduct violative of the foreign protection order could be prohibited by a protection order if issued in this state.

Any protection order meeting the requirements of this section is a foreign domestic abuse protection order or a foreign stalking or physical violence protection order.

25-10-12.2 Filing of foreign violence protection order -- Affidavit -- Entry in database -- Fee

Updated: 
November 28, 2023

Any person entitled to protection under a foreign domestic violence protection order may file the foreign order in the office of any clerk of a circuit court in this state. The person filing the foreign order shall also file with the clerk of a circuit court an affidavit certifying the validity and status of the order and attesting to the person’s belief that the order has not been amended, rescinded, or superseded by any orders from a court of competent jurisdiction. If a foreign order is filed under this section, the clerk of a circuit court shall enter the order in the law enforcement protection order database. Filing of a foreign order under this section is not a prerequisite to the order’s enforcement in this state. No fee may be assessed for filing the foreign order.

25-10-12.3 Reliance on foreign order -- Immunity from liability

Updated: 
November 28, 2023

A law enforcement officer may rely upon any foreign domestic violence protection order that has been provided to the officer by any source. The officer may make an arrest pursuant to § 25-10-13 for any violation of the foreign order in the same manner as for violation of a protection order issued in this state. A law enforcement officer may rely on the statement of the person protected by the foreign order that the order is in effect and that the respondent was personally served with a copy of the order. A law enforcement officer acting in good faith and without malice in enforcing a foreign order under this section is immune from civil or criminal liability for any action arising in connection with the enforcement of the foreign domestic violence protection order.

25-10-12.4 Presentment of false order or denial of service a misdemeanor

Updated: 
November 28, 2023

Any person who intentionally provides a law enforcement officer with a copy of a foreign domestic violence protection order known by that person to be false, invalid, or not in compliance with the requirements of § 25-10-12.1, or who, if served with such a protection order, denies having been served with the protection order, is guilty of a Class 1 misdemeanor.

25-10-12.5 Affirmative defense

Updated: 
November 28, 2023

Failure to satisfy any of the requirements of § 25-10-12.1 is an affirmative defense to any prosecution for a violation of the foreign domestic violence protection order or any process filed seeking enforcement of the order in this state.

25-10-13 Violation of order as misdemeanor or felony

Updated: 
November 28, 2023

If a temporary protection order or a protection order is granted pursuant to this chapter, if a foreign protection order is recognized pursuant to § 25-10-12.1 or 25-10-25, or if a no contact order is issued pursuant to § 25-10-23 or 25-10-25, and if the respondent or person restrained knows of the order, a violation of the order is a Class 1 misdemeanor.

If the acts constituting a violation of this section also constitute a violation of § 22-18-1, 22-18-1.1, or 22-19A-1, the violation of this section is a Class 6 felony.

If a respondent or person restrained has been convicted of, or entered a plea of guilty to, two or more prior violations of this section, § 21-65-19, or § 22-19A-16, or the comparable laws of any other state, within ten years of committing the current offense, and the factual basis for the current offense occurred after the date of the second conviction or guilty plea, the respondent or person restrained is guilty of a Class 6 felony for a third offense, a Class 5 felony for a fourth offense, and a Class 4 felony for a fifth or subsequent offense.Any proceeding under this chapter is in addition to other civil or criminal remedies.

25-10-14 Citation of chapter

Updated: 
November 28, 2023

This chapter may be cited as the Protection from Domestic Abuse Act.


25-10-22 Effect of divorce or other civil proceedings prior to criminal proceedings

Updated: 
November 28, 2023

In any action involving domestic abuse, the court may not:

(1) Dismiss any charge or delay disposition of the domestic abuse action because of the pendency of a divorce or any other civil proceeding, unless agreed to by all parties, including the victim;

(2) Require proof that either party is seeking dissolution of marriage prior to instigation of criminal proceeding.


25-10-23 Conditional bond -- Violation as misdemeanor

Updated: 
November 28, 2023

If bond for the defendant in any domestic abuse action is authorized, a condition of no contact with the victim shall be stated and incorporated into the terms of the bond. Willful violation of any such no contact provision is a Class 1 misdemeanor.


25-10-24. Surrender of weapon by defendant

Updated: 
November 28, 2023

The court may require the defendant to surrender any dangerous weapon or any concealed pistol permit issued under 23-7 in the defendant’s possession to local law enforcement.

25-10-25 Convicted defendant prohibited from contacting victim

Updated: 
November 28, 2023

The court may order that any defendant convicted of a crime involving domestic abuse be prohibited from contact with the victim and the sheriff shall give the victim a copy of any such order.


25-10-34 Domestic abuse charge to be indicated on warrant or summons

Updated: 
November 28, 2023

The state’s attorney of the county where a crime is believed to have been committed shall indicate on the summons, complaint, information, indictment, arrest warrant, and judgment of conviction whether the charge involves domestic abuse.

25-10-35 Arrest of spouse for abuse -- Considerations

Updated: 
November 28, 2023

If the officer has probable cause to believe that persons in a relationship as defined in § 25-10-3.1 have assaulted each other, the officer is not required to arrest both persons. The officer shall arrest the person whom the officer believes to be the predominant physical aggressor. In making this determination, the officer shall make every reasonable effort to consider:

(1) The intent to protect victims of domestic abuse under this chapter;

(2) The comparative extent of injuries inflicted or serious threats creating fear of physical injury; and

(3) The history of domestic abuse between the persons involved.

25-10-36 Arrest of criminal suspect when responding to domestic abuse call

Updated: 
November 28, 2023

If any law enforcement officer who is responding to a domestic abuse call has probable cause to believe that a crime has been committed, the law enforcement officer shall arrest the person who is suspected of committing the crime and make a complete report of any action taken. The officer shall indicate on the arrest report and the fingerprint document if the arrest is for a crime against a person in a relationship described in § 25-10-3.1.


25-10-37. Domestic abuse record keeping

Updated: 
November 28, 2023

The information required by 25-10-34 and 25-10-36 shall be compiled, maintained, and reported in accordance with chapter 23-6.

25-10-38 Report of domestic abuse arrest forwarded to prosecutor -- Victim to be notified of status of case

Updated: 
November 28, 2023

Any report made pursuant to § 25-10-36 shall be forwarded to the appropriate prosecutor within ten days of making the report. The prosecutor shall, within five days of receipt of the report, notify the victim either orally or in writing of the status of the case. If the state’s attorney decides not to prosecute, the prosecutor shall inform the victim of the reasons.


25-10-39 Records of domestic abuse -- Disclosure of victim's location during pendency of action

Updated: 
November 28, 2023

Each law enforcement agency shall maintain records for at least five years of all reported incidents of domestic abuse. However, during the pendency of any action instituted pursuant to § 25-10-36, records which identify the location of a victim may not be disclosed to a defendant without a court order, except to defendant’s attorney.


25-10-40 Restrictions on release of person charged with domestic abuse

Updated: 
November 28, 2023

No police officer or sheriff may release a person charged with assaulting a person in a relationship described in § 25-10-3.1, or violating a protection order, as provided for in this chapter, without providing notice to a committing magistrate judge or circuit court. A committing magistrate judge or circuit court shall determine if bond or other conditions of release are necessary for the protection of the alleged victim.


25-10-41 Conditions of release of person charged with domestic abuse

Updated: 
November 28, 2023

In determining the conditions of release under § 25-10-40, the court shall consider the following conditions and may impose any condition it considers reasonably necessary to protect the alleged victim of domestic abuse, including ordering the defendant:

(1) Not to subject the victim to further domestic abuse;

(2) To vacate the home of the victim;

(3) Not to contact the victim other than through counsel;

(4) To engage in counseling;

(5) To refrain from the consumption of alcohol or the use of drugs;

(6) To post bond pursuant to § 25-10-23.

As used in this section, the term, domestic abuse, means a violation of § 22-18-1 or 22-18-1.1 if the victim is a person in a relationship described in § 25-10-3.1.


25-10-42 Convicted child abuser or sex offender barred from adopting child

Updated: 
November 28, 2023

No child may be placed for adoption with an individual who has been convicted of child abuse pursuant to chapter 26-10 or a sex offense pursuant to chapter 22-22.


Title 43. Property

Updated: 
November 28, 2023

Chapter 43-32. Lease of Real Property

Updated: 
November 28, 2023

43-32-18.1. Eviction of tenant--Limitations

Updated: 
November 28, 2023

A lease governing residential property may not include any term that authorizes the eviction of a tenant who calls or otherwise seeks assistance from law enforcement or other emergency responders because of an alleged incident of domestic abuse, unlawful sexual behavior, or stalking.

Nothing in this chapter authorizes the eviction of a tenant solely because the tenant or a member of the tenant’s household is the victim of alleged domestic abuse, unlawful sexual behavior, or stalking.

43-32-19. Termination of lease by tenant--Causes

Updated: 
November 28, 2023

A tenant may terminate a lease before the end of the term if:

(1) The landlord does not, within a reasonable time after written request, fulfill obligations, if any, as to placing and securing the tenant in quiet possession of the premises or putting the premises into good condition or repairing the same;

(2) The greater part of the leased premises or that part which was, and which the landlord had at the time of leasing, reason to believe was the material inducement to the tenant to enter into the lease, is destroyed, from any other cause than the ordinary negligence of the tenant; or

(3) The tenant meets the provisions of § 43-32-19.1.

43-32-19.1. Domestic abuse--Unlawful sexual behavior--Stalking--Termination of lease--Notice requirements

Updated: 
November 28, 2023

If a tenant or a member of the tenant’s household is the victim of alleged domestic abuse, unlawful sexual behavior, or stalking, the tenant may terminate the lease and vacate the rental unit without penalty for early termination on or before a specified date, provided:

(1) The tenant notifies the landlord in writing that the termination is due to the tenant’s fear of imminent danger or injury to the tenant or to a member of the tenant’s household; and

(2) The tenant attaches to the notice:

(a) A police report regarding an alleged incident of domestic abuse, unlawful sexual behavior, or stalking, signed during the thirty-day period immediately preceding the date of the notice;

(b) A protection order issued during the thirty-day period immediately preceding the date of the notice, in response to an alleged incident of domestic abuse, unlawful sexual behavior, or stalking; or

(c) Documentation signed by a licensed health care provider indicating that:

(i) During the thirty-day period immediately preceding the date of the notice, the provider examined the tenant or a member of the tenant’s household;

(ii) The examination was within the provider’s scope of practice; and

(iii) As a result of the examination, the provider has reasonable cause to believe that the tenant or a member of the tenant’s household was a victim of alleged domestic abuse, unlawful sexual behavior, or stalking.

A tenant who provides a notice of termination in accordance with this section is not liable to pay any otherwise applicable early termination fee or the rent applicable to the month following that in which the tenant vacates the premises.

43-32-19.2. Contact information--Disclosure--Limitation

Updated: 
November 28, 2023

If in accordance with a termination authorized by § 43-32-19.1 a tenant provides to the landlord a forwarding address or other contact information, the landlord may not disclose that information to any person except with the consent of the tenant or as required by law.