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

If there is a custody or visitation dispute, the judge may appoint a parenting coordinator to help you resolve it.¹ You or the other parent can specifically request that a parenting coordinator is appointed or the judge can decide on his/her own. Who is appointed for this role can be decided by the parents and approved by the judge or the judge can decide who the parenting coordinator will be.²

The judge can order that the parenting coordinator do the following:

1. inform both parents of their role in the process; 
2. monitor that the parenting plan is followed and resolve any minor issues that arise as long as they don’t involve a substantial change to the court order;
3. recommend strategies for putting the parenting plan in place or resolving parenting issues that are impacting the plan;
4. help you and the other parent develop better communication and cooperation so that you can effectively co-parent your child;
5. help you and the other parent to better foster ongoing relationships with your child;
6. help follow court orders and make recommendations to the judge regarding changing, clarifying, or enforcing a parenting time order;
7. not allow the parties’ attorneys to participate in parenting coordinator sessions;
8.  put safeguards in place during the process when there are domestic violence concerns, such as no direct communication or no joint meetings, for example;
9. recommend community resources to you and the other parent;
10. make recommendations on day-to-day issues experienced by you and the other parent; and
11. other tasks specific to your case.³

However, even if there is a parenting coordinator appointed, the judge continues to be in charge of the case and is the only one with the legal power to make decisions related to child support, custody, or visitation.⁴ 

The fees and costs associated with a parenting coordinator will be covered by you and the other parent.⁵ It’s also important to know that these services are not confidential and the judge can order the parenting coordinator to testify as part of the court process.⁶

¹ SDCL § 25-4-63
² SDCL § 25-4-64
³ SDCL § 25-4-70
⁴ SDCL § 25-4-72
⁵ SDCL § 25-4-69
⁶ SDCL § 25-4-74

The law assumes (presumes) that the best interest of your child is to be in the care, custody, and control of his/her parent(s).¹ Which parent will have custody or if custody will be shared between both parents will be based on what the judge believes is in the best interest of the child. For more information about the “best interest factors” that a judge will rely upon, you can see the question How will a judge make a decision about custody?

However, in certain circumstances, a non-parent can get custody. See Can a non-parent get custody of the child? for more information.

¹ SDCL § 25-5-29

If the judge believes that there is “clear and convincing evidence” that your child was conceived as a result of rape or incest, the judge will assume (presume) that the offender should not get custody or visitation. However, this is a “rebuttable presumption,” which means the offender can show evidence to convince the judge that s/he should have custody or visitation rights for your child. If the offender already had visitation rights, the judge can take those away (“revoke” them).¹

¹ SDCL § 25-4A-20

A judge can allow a non-parent to join (intervene in) an ongoing custody case or to file his/her own petition in court for custody or visitation of a child for whom s/he:

• has been a primary caretaker;
• has closely bonded as a parental figure; or
• has otherwise formed a significant and substantial relationship.¹

Even though the law assumes (presumes) that the best interest of your child is to be in the care, custody, and control of his/her parent(s), a non-parent can win this right to custody if it is proven that:

• the parent has abandoned or continuously neglected his/her child;
• the parent has surrendered his/her parental rights to any person other than the other parent;
• the parent has abandoned (abdicated) his/her parental rights and responsibilities; or
• there are other extraordinary circumstances that would result in serious harm (detriment) to the child if custody is awarded to the parent, including: 

1. it’s likely that the child would suffer serious physical or emotional harm if s/he is placed in the parent’s custody;
2. the extended and unjustifiable absence of parental custody;
3. other people have had to provide for the child’s physical, emotional, and other needs for a long time; 
4. there is a bond between the child and a non-parent that is strong enough that it would cause significant emotional harm to the child if there were a change in custody;
5. a child’s well-being has improved substantially under the care of the non-parent;
6. how long the parent has delayed trying to get back custody of the child;
7. the demonstrated quality of the parent’s commitment to raising the child;
8. how likely it is that the child will have stability and security in the future with the parent;
9. if the child’s education would be damaged while in the custody of the parent; or
10. any extraordinary circumstance that would substantially and significantly affect the welfare of the child.²

¹ SDCL § 25-5-29
² SDCL §§ 25-5-29; 25-5-30

Usually, parents can decide on any type of custody agreement that works for the family and benefits their child. However, if parents cannot agree on custody (custodial responsibilities), it’s possible that a custody case will need to be filed. 

The time leading up to when a custody order is issued is covered under South Dakota law. Generally speaking, if your child was born while you were married to the other parent, then you both are equally entitled to custody.¹ However, if your child is born out of wedlock, the law says the mother is entitled to custody unless and until a court order says otherwise, based on the child’s best interest.² This initial right to custody does not mean the judge will assume this arrangement is in the best interest of the child when making a custody order.³

¹ SDCL § 25-5-7
² SDCL § 25-5-10
³ SDCL § 25-5-10.1

To make a decision about custody, the judge will consider what is called the “best interest of the child.” There are six categories the judge should consider within that best interest standard: 

1. Child’s preference- if your child is old enough to form an intelligent decision;¹
2. Fitness- which parent is better equipped to provide for your child’s temporal, mental, and moral welfare.¹Some factors include: 
   
   1. mental and physical health of each parent;
   2. capacity and willingness to provide for the child’s basic needs, including protection, food, clothing, and medical care; 
   3. ability to give the child love, affection, guidance, education, and religion;
   4. willingness to maturely encourage and provide frequent and meaningful contact between your child and the other parent; 
   5. commitment to prepare your child for responsible adulthood; and
   6. which parent would be an example to your child so that s/he can witness what it means to be a good parent, a loving spouse, and a responsible citizen;
3. Stability- which parent can provide a stable and consistent home environment. This includes: 
   
   1. the relationship and interaction of your child with his/her parents, step-parents, siblings, and extended family;
   2. your child’s adjustment to home, school, and the community;
   3. the parent with whom your child has formed a closer attachment; and
   4. the continuity of your child’s custodial setting;
4. Primary caretaker- who is more committed and involved in parenting your child. The primary caretaker can be identified by determining which parent consistently spends more time taking care of your child;
5. Siblings- assuming that siblings should not be separated unless there are convincing (compelling) circumstances to do so; and
6. Harmful parental misconduct- only if the parental misconduct is specifically harmful to the child.²

The judge can also order an investigation to help him/her decide on custody and visitation. The cost of this investigation will be divided between the parents.³

¹ SDCL § 25-4-45
² Fuerstenberg v. Fuerstenberg, 591 N.W.2d 798, 807, 1999 S.D. 35
³ SDCL § 25-4-56

When deciding on custody, the judge cannot consider a parent’s past or future deployment in determining the best interest of the child. However, the best interest standard can be reconsidered if after the parent’s return from deployment, the parent or child shows a substantial and material change in circumstances that affects that parent’s ability to adequately care for the child.¹

¹ SDCL § 25-4B-107

Learn about the types of custodial responsibility available, the standard parenting guidelines, and how domestic violence might affect who can get custody and visitation in your state. Think about what you will ask for, what would be best for your child, and what would be safest for both of you.  

You can prepare for court by gathering evidence that helps explain why you should have custody. Your evidence should relate to the “best interest factors” that a judge looks at to determine what’s best for your child. You can see How will a judge make a decision about custody? for more information.

Custody cases are complicated, so you may want to get a lawyer. If you can hire someone, you can use this list of questions as your guide when deciding which lawyer to choose. If you can’t hire a lawyer, you may at least want to try getting a free or low-cost consultation to help you make a legal strategy for your case.

The next step in the custody process is to have “preliminary” court dates. Preliminary means introductory or preparatory. These might have a different name in your state, such as “first appearance,” “status conference,” or something else. They are when certain issues can be dealt with in the early stages of the case. Some of the issues that might be dealt with are:

• problems with service of process;
• referrals to mediation;
• temporary custody and visitation orders; and
• pretrial motions.

During this stage, the judge will often give temporary custody and visitation orders that last while the case continues. A child will usually remain with the parent who was the primary caregiver during the 12 months before the custody case started, and the other parent will have visitation according to the standard parenting guidelines. However, the judge may later change this arrangement after a court hearing.¹

In some cases, the judge may assign a guardian ad litem or an attorney for the child.

For more information to help you prepare for the preliminary court dates, go to The first appearance in our Before the Trial section. 

¹ SDCL § 25-4A-11

If you disagree with the judge’s order, there are a couple of legal actions you would need to file right away, such as a motion for reconsideration or an appeal.

• 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 to a judge’s error.

Each state has a set time limit to file these actions, usually ranging from 10 to 60 days. To know your case’s exact timeframe, you should ask an attorney in your state.  

You might also be able to ask the judge to change your order in the future if there is a “substantial change of circumstances” after the case is decided. You can do this by filing a motion or petition to change (modify) the order. However, usually, this can only be filed under certain circumstances. Here are a few examples of events that might be considered substantial changes in circumstances:

• The other parent gets sent to jail or charged with child abuse or neglect;
• The other parent is not following the custody and visitation order; or
• Your child’s needs change in a big way.

Once the other parent is notified of the custody process and hearing, any decision or order of court is enforceable.¹ If one of the parents does not follow the order, the other parent can ask the judge to enter an order to show cause why they should not be held in contempt of court.² If the custodial parent refuses to follow the visitation schedule, the non-custodial parent can also file a motion for enforcement of visitation rights.³ In both cases the judge will schedule a hearing on the matter.

If the judge believes that one of the parents willfully violated or failed to obey the custody or visitation order, s/he can impose a punishment (sanctions) to punish the offender or to make him/her follow the order. The judge can order that the offending parent does one or more of the following:

• provide make-up time with the child;
• pay court costs and attorney’s fees associated with the violation;
• pay a civil penalty up to $1,000;
• participate in counseling or parent education classes; 
• post money (a bond) or other security with the court that would not be returned if  the parent failed to obey the order moving forward; 
• serve jail time of not more than three days; or
• obey any other sanction that the judge believes is appropriate in the case.⁴

If there is a serious (grave) violation or multiple violations, the judge may change (modify) the existing custody or visitation order.⁴

¹ SDCL § 25-4A-1
² SDCL § 25-4A-2
³ SDCL § 25-4A-4.1
⁴ SDCL § 25-4A-5

Both parents have equal access to records and information related to the child, including healthcare and school records. The law says that both parents should make reasonable efforts so that the name and address of the other parent is listed on these records.¹ This is also the case when enrolling your child in any social, religious, or peer group activity.²

However, everything explained above does not apply in a case where a judge has:

1. terminated the rights of one of the parents; 
2. issued a court order that restrains one of the parents from contact with the child; or
3. determined that it’s inappropriate under the circumstances in a particular case.³

¹ SDCL § 25-5-7.3
² SDCL § 25-5-7.4
³ SDCL § 25-5-7.5

After a final custody order is issued, there may come a time when you and your children move to a different state. For information about how to request to transfer the custody case to a new state, please go to the Transferring a custody case to a different state section in our general Custody page. However, it’s important to keep in mind that you may likely first need to get permission from the court or from the other parent to move your children out of state. Please talk to a lawyer to make sure your plans to move don’t violate your custody order or your state’s parental kidnapping laws.