Custody, also called “custodial responsibility,” is defined by South Dakota law as all powers and responsibilities related to taking care of your child, known as caretaking authority, and making decisions on his/her behalf, known as decision-making authority. This includes physical and legal custody.¹

Generally speaking, these terms mean the following:

• Caretaking authority is the actual physical care and supervision of your child. This includes the right to make day-to-day decisions about your child. . 
• Decision-making authority is the right and responsibility to make major decisions about your child. These decisions include the child’s education, religious training, health care, extracurricular activities, and travel.²

¹ SDCL § 25-4B-102(5)
² SDCL § 25-4B-102(6)

Paternity, also known as legal fatherhood, can be established at any time before the 18^th birthday of your child in the following ways:

• Presumed- if the parents are married or your child is born within 10 months of the divorce, the husband is automatically assumed (“presumed”) to be the legal father.¹ However, if the biological father is not the husband, then a three-way paternity affidavit can be signed by the mother, the biological father, and the husband.²
• Voluntarily- both parents sign a paternity affidavit under oath. This could be done at the hospital/clinic when your child is born or later on at the South Dakota Department of Social Services, Department of Health, or the local Register of Deeds Office.
• Involuntarily- either parent may start administrative or legal proceedings to establish paternity. This will usually include genetic testing.²

¹ SDCL § 25-5-3
² “Voluntary Paternity Establishment,” South Dakota Department of Social Services.

If there’s an issue concerning custody or visitation between you and the other parent, the judge may order mediation to help you create, carry out, or change a plan for custody or visitation. 

Mediation should not be ordered if:

1. there is a domestic abuse conviction;
2. there is an assault conviction, except if it’s against a person related by blood but not living in the same household; 
3. there is a history of domestic abuse; 
4. mediation is not readily available; or
5. the judge determines that mediation is not appropriate based on the specific circumstances of the case.¹

If mediation is ordered:

• the cost of mediation will be distributed between you and the other parent;¹
• the process will be private; 
• the mediator could exclude attorneys from participating in the proceedings;² and
• any communication that is part of the proceeding, oral or written, is confidential and cannot be entered into evidence in any proceeding.³

If you and the other parent reach an agreement through mediation, the mediator will put it in writing and you and your attorney can review it before signing. Once an agreement is signed by both parents, it will be presented to the judge. The agreement will be binding once it is approved by order of the court.⁴

If no agreement is reached through mediation, the mediator will report this to the judge and may recommend that a full hearing about custody and visitation be held within 30 days.⁵

¹ SDCL § 25-4-56
² SDCL § 25-4-59
³ SDCL § 25-4-60
⁴ SDCL § 25-4-61
⁵ SDCL § 25-4-62

Even though the judge has to consider any abuse history, it is possible that an abusive parent can get custody or visitation. 

When a judge is deciding custody, s/he should consider all of the following:

1. a domestic abuse conviction;
2. an assault conviction, except if it’s against a person related by blood but not living in the same household; 
3. a history of domestic abuse;¹ and
4. the conviction of one parent for the death of the other, except in vehicular homicide.²

If there is a conviction or history of domestic abuse or a conviction of causing the death of the other parent, the judge will assume (presume) that giving custody to the abusive parent is not the best interest of the child. However, this is only a “rebuttable presumption,” which means the abuser can show evidence to try to convince the judge to change his/her mind.³

When it comes to visitation, the law only mentions that the judge will consider the conviction of one parent for the death of the other, except in vehicular homicide.²  The law does not specifically say that the judge has to consider the other factors listed above when deciding visitation.

¹ SDCL § 25-4-45.5
² SDCL § 25-4-45.6
³ SDCL §§ 25-4-45.5; 25-4-45.6

The judge can give grandparents and great-grandparents visitation rights if s/he believes this would be in the best interest of the child and one of the following is true:

• the visitation will not significantly interfere with the parent-child relationship; or
• the parent or custodian has denied or prevented the grandparent from the opportunity to visit the grandchild.¹

¹ SDCL § 25-4-52

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

However, getting a custody order can give you:

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

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

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

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

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

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

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

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

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

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

     2.  Prepare for the custody process

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

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

     3.  Prepare for trial

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

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

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

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

     4.  Options if you lose the custody case

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

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

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

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

¹ SDCL § 25-4A-11

In South Dakota, the standard parenting guidelines will set out the custody arrangement to be followed by the parents. You can object to the standard guidelines and the judge will order a hearing within thirty days. Considering the best interest of the child, the judge will then issue a temporary custody and visitation order.¹

Once there is a final custody order in place, if there is a substantial change in circumstances from the time the custody order was issued, you can request a change (modification). The judge will hold a hearing to consider the best interest of the child as well as the other factors included the question How will the judge decide to grant joint physical custody? when deciding whether to grant the change requested.²

¹ SDCL § 25-4A-13
² SDCL § 25-4A-27

If a custody order doesn’t say anything about changing the primary residence of your child, the parent that wants to move has to send a written notice to the other parent. This “reasonable written notice” can be done by certified mail or the other parent can admit in writing that they received it (admission of service).  “Reasonable” notice means that it is given at least 45 days before the move or a shorter period of time if it’s reasonable within the circumstances that are causing the move. Proof of this notice has to be filed with the court.¹

The relocation notice has to include:

• city, state, and telephone number of the new residence; 
• purpose for moving;
• why moving is in the best interest of the child; and
• a proposed visitation plan for the non-relocating parent.²

If the other parent doesn’t agree with the move, s/he must request a hearing within 30 days of receiving the notice. The court will then hold a hearing considering the best interest of the child. If no objection to the move is filed, it will be assumed (presumed) that the non-custodial parent consents.³  

No relocation notice has to be given if one of the following is true:

1. moving will bring your child closer to the other parent; 
2. the move is within the limits of your child’s current school district;
3. there is a valid restraining order protecting you or your child from the non-custodial parent; or
4. in the last 12 months, the non-custodial parent has been convicted of violating a restraining order, criminal assault, child abuse, or another domestic violence crime and the victim was you or your child.³ 

Note: The exceptions listed in #3 and #4 do not apply an order establishing parenting time was issued as part of the restraining order, after the restraining order, or after the criminal conviction.

¹ SDCL § 25-4A-17
² SDCL § 25-4A-18
³ SDCL § 25-4A-19
⁴ SDCL § 25-4A-17