Family Law

How do Judges Decide Child Custody in South Dakota

By Melissa Heinig, Attorney
Divorcing parents can reduce the stress associated with coparenting and custody issues by putting aside their differences and focusing on their children.

Divorcing parents can reduce the stress associated with coparenting and custody issues by putting aside their differences and focusing on their children. Although it’s difficult, parents should decide who will be responsible for the child’s daily needs and major life decisions. If parents can’t agree, a judge will have to decide physical custody, legal custody, and parenting time.

What Is Custody?

Legal Custody

Legal custody refers to a parent’s right to make decisions regarding the child’s physical residence, child care, education, extracurricular activities, medical and dental care, religious instruction, and the child’s use of a motor vehicle.

The court may award sole legal custody (to just one parent) or joint legal custody (shared by both parents). If a judge grants sole legal custody, it means that only one parent will have full decision-making authority for the child. However, if a judge issues a joint legal custody award, both parents will have the right to help make major life decisions for their child, but they will have to agree on these decisions. In South Dakota, courts can award joint legal custody, but may still give ultimate responsibility for specific aspects of the child’s life to just one parent, especially in the event the parents can't agree.

Physical Custody

Physical custody generally refers to the parent’s time with the child and includes where the child will live and which parent will be responsible for the child’s daily needs. Like legal custody, the court can award sole or joint physical custody. If a court awards one parent sole physical custody, the court considers that parent to be the custodial parent, who is responsible for the child’s welfare. If parents share joint physical custody, the child will spend nearly equal time (or at least a significant amount of time) in both parents' homes.

Regardless of the title given to each parent, both parents have the right to make day-to-day decisions while watching the child.

What Is Parenting Time?

If a judge awards one parent sole physical custody, or if one parent has the majority of time in a shared custody arrangement, the next step is to determine a parenting time or visitation schedule for the noncustodial parent.

Parents should work together to determine a schedule that will work best for everyone, especially the children. You should consider the child’s school and extracurricular schedule, each parent’s work schedule, and any other factor that will impact your daily routine. A successful parenting time calendar will address:

  • mid-week visitation
  • weekend visitation
  • holidays
  • school breaks, and
  • which parent will be responsible for transportation costs.

Parenting plans should include a provision that allows each parent to have access to a child’s official records, including educational and medical information.

In certain cases, overnight or unsupervised visitation may not be appropriate, particularly where one parent has a history of domestic violence, drug or alcohol abuse, or neglect. In these situations, a judge will likely order supervised visitation, where a neutral third party observes the visits between the child and the noncustodial parent. Supervised visits typically take place at a neutral location or state visitation center.

How Does the Court Determine Custody?

Courts recommend and prefer that parents work together to determine their ideal custody arrangements. If parents can’t agree, a court will decide custody. Judges are required to make a balanced and methodical assessment of what is in the child’s best interest, and to do this, they will consider the child’s mental and moral welfare and each of the following factors:

  • each parent’s mental and physical health
  • both parent’s ability to provide the child with protection, food, clothing, and medical care
  • each parent’s ability to give the child love, affection, guidance, and educational support
  • whether each parent will encourage and provide frequent and meaningful contact between the child and the other parent
  • each parent’s commitment to preparing the child for responsible adulthood
  • the child’s adjustment to their home, school, and community, and
  • the child’s preference, if the child is at least 12 years old.

The judge will decide custody based on the evidence presented by each parent and will give both parents the same consideration regardless of the sex or age of the parent and child. Once the court makes its custody decision and creates a parenting plan, both parents must follow it. If either parent wants to change the arrangement, he or she will need to ask the court for a hearing.

Modification of Custody and Visitation

Just as children are, life can be unpredictable. A parenting plan is a living, breathing document and if necessary, a court can modify it. Judges may be reluctant to change custody or parenting time if there isn’t a good reason, so to be successful, a parent needs to show that there has been a substantial change in circumstances since the last custody order.

If a parent proves there is a sufficient change in circumstances, the court will evaluate the best interest factors listed above to establish a new custody and parenting time order. Until the judge signs a new order, parents must continue to follow the current parenting plan.

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