South Dakota law gives parents the opportunity to create their own parenting plan or custody arrangements. It should include the plan regarding custody and visitation for the non-custodial parent if only one parent is to have custody. It would address 3 basic issues as follows:
- The parent with whom the child is to live, or physical custody;
- Whether one of both parents is to make the parenting decisions concerning the child or legal custody;
- If one parent only has physical custody and the child is to live with that parent, the visitation schedule that the non-custodial parent is to have.
When a couple getting a separation or divorce in South Dakota has agreed on a plan, they send it to the court. The plan does need to follow South Dakota law. If it does not, it will be rejected by the court. If a couple cannot come to an agreement and the issues of custody and visitation are contested, then there would have to be court hearings, and a judge would issue a plan.
South Dakota has legally mandated “Parenting Guidelines.” If parents formulate their own plan, they may want to consult the Guidelines. However, if the parents cannot agree on their own Parenting Plan, the Guidelines become mandatory. A court uses them to guide its determination of a parenting plan.
What Is a Parenting Plan?
When a couple getting a separation or divorce in South Dakota has agreed on a parenting plan, they send it to the court. The plan does need to follow South Dakota law. If it does not, it will be rejected by the court. If a couple cannot come to an agreement and the issues of custody and visitation are contested, then there would have to be court hearings, and a judge would issue a plan.
South Dakota has legally mandated “Parenting Guidelines.” If parents formulate their own plans, they may want to consult them. However, if the parents cannot agree on their own parenting plan, the Guidelines become mandatory. A court uses them to guide its determination of a parenting plan for the couple. The Guidelines consist of several very detailed custody schedules that have been created for children from newborn to the age of 36 months.
What Does the Court Consider in Assigning Custody?
South Dakota law does not require a judge to consider a defined list of factors in determining custody and visitation. Rather, the law directs judges to make a balanced and methodical evaluation of what would be in the best interests of the child. Judges generally consider various factors in deciding what serves the best interest of the child. Some of them are the following:
- The stability and fitness to parent of each of the parents;
- Whether one parent has been the primary caregiver of the child;
- Whether one parent is more likely to promote a healthy relationship between the child and the other parent;
- If the child in the case is old and mature enough to express their wishes about which parent they want to live with, then the court may sider their wishes when it comes to South Dakota child custody. The child would be allowed to express their preference for their physical custody;
- The court looks at the parents’ history of both parents to find out if there is any history of abuse of the child or another family member;
- The court also looks at the parents’ history to find out if either parent has engaged in risky behavior, e.g., drug use or alcohol abuse, or neglect of the child.
Judges in South Dakota have a lot of flexibility and make divorce orders regarding custody and visitation on a case-by-case basis. There is no presumption in favor of joint custody, and judges can order either joint or single-parent custody of a child.
South Dakota has laws that explicitly allow the consideration of domestic violence in child custody decisions. This may mean that domestic violence is a factor in custody determinations, that there is a legal presumption against custody for parents who have a history of inflicting abuse, or that special procedures may be used in cases involving domestic violence.
Finally, judges in South Dakota have the legal authority to appoint a guardian ad litem or attorney whose role would be to represent the child in a custody case. This person advocates for the best interest of the child. They are supposed to investigate the family situation and advise the court of their findings as well as their opinion as to what custody arrangement would be in the best interests of the child.
What Happens When the Court Has Made a Decision?
When the court has made a decision, it issues its final order. It might be an order that addresses only child custody and visitation if that was the only contested issue in the divorce. Or it may include decisions regarding other issues, such as spousal support, if other issues in the case were contested.
A judge’s order makes a decision as to both legal custody and physical custody of the child. Of course, parents awarded legal custody make decisions about the child’s upbringing, including education, health, and overall welfare. Legal custody can be awarded to one or both parents.
If the parents are awarded joint legal custody, they both must work together to make decisions. If one parent gets sole legal custody, the parent with legal custody may make the decisions alone but must keep the other parent informed.
Physical custody can also be awarded to one or both parents. Reportedly, however, judges in South Dakota most often award sole custody to the parent with whom the child spends the majority of their time. The parent who is not awarded custody is referred to as the “noncustodial parent.” They are awarded a visitation order to see the child regularly according to a schedule specified by the judge in the order.
Of course, the judge’s order is enforceable. The parents are legally obligated to respect it, and if they do not, there will be consequences. The order can only be changed if there is a significant change in the circumstances of the family. Any modifications have to be approved by a court, so if one parent or both want to modify the order, they need to go to court and seek approval.
When Can a Child Decide Which Parent to Live With in South Dakota?
As noted above, under South Dakota child custody laws, if a child is considered mature enough, they are allowed to express their preference regarding the parent with whom they want to live, and a court would consider that in making a decision about physical custody. A minor child, i.e., one who is under 18, cannot themselves make the determination as to the parent with whom they would live. Once a child is an adult, of course, they can decide for themselves where they want to live.
Should I Contact a South Dakota Lawyer Regarding My Custody Issues?
If you are in the process of getting legally separated or divorced in South Dakota, you want to consult an experienced South Dakota child custody lawyer. Even if you and your spouse seem to be able to cooperate and agree on arrangements, you want to consult a lawyer to learn what your rights and interests are. If you can agree on a plan, your lawyer can advise you about whether your plan is likely to be accepted by a court or has problems and needs changes.
If you and your spouse are not in agreement, you need a lawyer to protect your interests and help you get a custody plan from a judge that works for you and your child. The likelihood of this is going to be greater if you have a qualified lawyer representing you in court.