Child custody in South Dakota

What the law tells the judge to look at

In the order the law lists them.

1. What is best for the child's temporal (everyday physical), mental, and moral welfare.SDCL § 25-4-45
2. The child's preference, if the child is old enough to form an intelligent preference (the judge may consider it).SDCL § 25-4-45

Other things the judge considers

• Neither parent is given preference over the other.SDCL § 25-4-45
• Fault in the marriage does not count, except as it shows a parent's fitness.SDCL § 25-4-45.1
• Whether a parent ever tried to influence a custody case by falsely or without good cause reporting child abuse or neglect.SDCL § 25-4-45.8
• A parent's conviction for causing the death of the other parent (not vehicular homicide) creates a presumption that custody or visitation with that parent is not in the child's best interest.SDCL § 25-4-45.6
• If the judge finds by clear and convincing evidence that a person committed rape or incest against the other parent that led to the child's conception, the law presumes custody or visitation with that person is not in the child's best interest.SDCL § 25-4A-20
• For a contested request for joint physical custody, the judge also looks at more than a dozen factors, such as each parent's home, how well the parents communicate and respect each other, how much each parent cares for the child, conflict between the parents, the child's wishes, distance between homes, safety, and whether a parent has alienated the child or allowed contact with a registered sex offender.SDCL § 25-4A-24
• Each parent with joint legal custody must support the other parent's relationship with the child.SDCL § 25-5-7.6

What the judge may not consider

Neither parent may be given preference over the other in a custody dispute (SDCL § 25-4-45).

Joint custody

No presumption. The judge may order joint legal custody, and may order joint physical custody even if a parent objects. If either parent asks for joint physical custody, the judge must consider it and make written findings (unless both parents waive them), but the law says it creates no presumption of joint physical custody.

The child's wishes

The judge may consider the child's preference if the child is old enough to form an intelligent preference. The law does not set an age.

Domestic violence

The judge must consider a parent's conviction for domestic abuse or for assault (with limited exceptions), or a history of domestic abuse. Any of these creates a rebuttable presumption that giving custody to the abusive parent is not in the child's best interest. A history of domestic abuse must be proven by clear and convincing evidence ('greater convincing force'); protection orders and arrest reports can be used as proof. A history of domestic abuse or an assault conviction also creates a presumption against joint physical custody. Since 2025, a judge generally should not order family or reunification therapy if a parent or child was a victim of domestic abuse by the other party.

Who has custody before a court order

If the parents are not married, the mother has custody of the child until a court orders otherwise. The court can give custody to either parent based on the child's best interest. The mother's starting custody does not mean it is best for the child, and the father does not have to show a change in circumstances to ask the court for custody.

Establishing paternity

How

Both parents can sign a paternity affidavit under oath, usually at the hospital before discharge. It creates a legal presumption that the man is the father, and child support can be set without another court case. The court's custody forms say to contact the Department of Social Services if paternity has not been established. A case to contest the affidavit must be filed in circuit court within 60 days, or before any court or agency case about the child if that comes sooner; if there is fraud, duress, or a material mistake of fact, within 3 years.

Form

Paternity affidavit (Voluntary Acknowledgment of Paternity; brochure 'The Power of Two', English and Spanish)

Cancellation form

No rescission form: a signer contests the presumption by filing in circuit court (SDCL § 25-8-59)

Agency

South Dakota Department of Social Services, Division of Child Support
https://dss.sd.gov/childsupport/voluntaryacknowledgment.aspx

Changing an order

You can ask the court to change a custody order by filing a petition or motion to modify (the clerk fee is $50). The judge decides what is in the child's best interest. A father asking to change the mother's starting custody of a child born outside marriage does not need to show a change of circumstances.

Law: SDCL §§ 25-4-45, 25-5-10.1, 16-2-29(4)

If the other parent does not follow the order

If the other parent willfully does not follow the custody or parenting time order, you can file a motion to enforce parenting time on the court's form, and the court must set a hearing within 21 days. You can also file a Petition for Order to Show Cause for contempt; the hearing is set at least 30 days out. If the judge finds a willful violation, the judge must impose sanctions, such as make-up time, paying your costs and attorney fees, a civil penalty up to $1,000, counseling or parenting classes, a bond, up to 3 days in jail, or, for serious or repeated violations, a change in custody or parenting time.

Law: SDCL §§ 25-4A-1, 25-4A-2, 25-4A-4.1, 25-4A-5, 25-4A-28

Grandparent visitation

Yes. The circuit court may give grandparents or great-grandparents reasonable visitation if it is in the child's best interest and either visits will not significantly interfere with the parent-child relationship, or the parent or custodian has denied the grandparent a reasonable chance to visit. This does not apply once the child is placed for adoption with someone other than a stepparent or grandparent.

Custody by someone who is not a parent

A non-parent who was the child's primary caretaker, closely bonded as a parent figure, or otherwise formed a significant relationship can ask for custody or visitation. The law presumes the child should be with a parent. That can be overcome only by proof that the parent abandoned or persistently neglected the child, gave up or abdicated parental rights, or that extraordinary circumstances would cause serious harm to the child if the parent had custody.

Custody and visitation in the order

Yes, after a hearing. If the judge finds domestic abuse, the protection order can give temporary custody or set temporary visitation, and temporary child support. If a child lives with either party, the restrained person must take a parenting class approved by the Department of Social Services. An emergency (ex parte) temporary order can restrain abuse and remove the abuser from the home, but the law does not list custody among its terms. There is no filing fee.