Printer FriendlySB 74 provide for the consideration of joint physical custody of a minor.
ENTITLED, An Act to provide for the consideration of joint physical custody of a minor.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Section 1. In any custody dispute between parents, upon application of either parent, the court
shall consider granting joint physical custody of a minor child.
The court shall consider the factors set forth in section 4 of this Act, and shall make written
findings of fact and conclusions of law regarding the best interests of the minor child, unless waived
by both parties.
Section 2. A finding by the court that a parent has a history of committing domestic abuse or has
an assault conviction as defined in § 25-4-45.5, creates a rebuttable presumption that joint physical
custody is not in the best interests of the child.
Section 3. Prior to ruling on a joint physical custody petition the court may require the parties
to participate in a home study or a custody evaluation. Prior to the court ruling on a joint physical
custody petition, either parent may request mediation pursuant to § 25-4-56.
In any case where the court orders the parties to participate in a home study, custody evaluation,
or custody mediation, the court shall allocate the costs of the same between the parties.
Section 4. In considering a contested request for joint physical custody, in addition to the
traditional factors for determining the best interests of a child, the court shall consider the following
(1) Whether each parent is a suitable physical custodian for the child;
(2) Whether each parent has an appropriate dwelling to support physical custody of the child;
(3) Whether the psychological and emotional needs and the development of the child will
suffer due to lack of active contact with, and attention from, both parents if joint physical
custody is not granted;
(4) Whether one parent has denied, without just cause, the child the opportunity for
continuing contact with the other parent. Facts supporting an application of the
presumption in § 25-4-45.5 constitute just cause;
(5) Whether the parents can show mutual respect for and effectively communicate with each
other regarding the child's needs. When considering this factor, the court shall include a
determination of the degree to which the parents are in general agreement about their
approach to daily child rearing matters;
(6) The extent to which both parents actively care for the child;
(7) Whether each parent can support the other parent's relationship with the child. When
considering this factor, the court shall include a determination of conflict between the
parents, as joint physical custody requires substantial and regular interaction between the
parents on a myriad of issues;
(8) Whether the joint physical custody arrangement is in accord with the child's wishes or
whether the child has strong opposition to joint physical custody, taking into
consideration the child's age, maturity, and reason for the objection;
(9) Whether a parent has intentionally alienated or interfered with the other parent's
relationship with the child;
(10) Whether one or both parents are opposed to joint physical custody. A parent's opposition
to joint physical custody is not determinative in itself, but only one factor for the court to
(11) The geographic proximity of the parents;
(12) Whether the safety of the child, other children, or the other parent will be jeopardized by
an award of joint physical custody;
(13) Whether a parent allows another person custody or control of, or unsupervised access to,
a child after knowing the person is required to register or is on the sex offender registry
as a sex offender under chapter 22-24B;
(14) Whether a parent has attempted to influence a custody determination by alleging, falsely
or without good cause, that the child or the sibling of the child has been subjected to
physical or sexual abuse or abuse and neglect, as set forth in § 25-4-45.8.
Section 5. If both parents agree to joint physical custody of a child, the court is not required to
consider the factors set forth in section 4 of this Act.
Section 6. Nothing in this Act creates a presumption of joint physical custody. The court shall
determine the appropriate physical care, custody, and control of a minor child based on a
determination of the best interests of the child.
Section 7. The enactment of this Act does not constitute a substantial change in circumstances
justifying the modification of existing custody orders, but the provisions of this Act shall apply to
modification proceedings which are otherwise properly before the court.
An Act to provide for the consideration of joint physical custody of a minor.
I certify that the attached Act
originated in the
SENATE as Bill No. 74
Secretary of the Senate
President of the Senate
Secretary of the Senate
Speaker of the House
Senate Bill No. 74
File No. ____
Chapter No. ______
Received at this Executive Office
this _____ day of _____________ ,
20____ at ____________ M.
for the Governor
The attached Act is hereby
approved this ________ day of
______________ , A.D., 20___
STATE OF SOUTH DAKOTA,
Office of the Secretary of State
Filed ____________ , 20___
at _________ o'clock __ M.
Secretary of State
Asst. Secretary of State