CUSTODY AND VISITATION RIGHTS
25-4A-1 Custody or visitation rights enforceable by contempt proceedings.
25-4A-2 Written request for order to show cause for violation of visitation or custody decree--Hearing date.
25-4A-3 Affirmative inquiry into contempt--Contemnor's rights.
25-4A-4 Affirmative defense by contemnor.
25-4A-4.1 Motion for enforcement of visitation rights--Hearing.
25-4A-5 Sanctions for violation of custody or visitation decree.
25-4A-5.1 Copy of § 25-4A-5 attached to order for parenting time.
25-4A-6 Probation for contemnor.
25-4A-7 Motion to revoke probation of contemnor.
25-4A-8 Application of section 23A-38-2 to proceedings for custody or visitation decree violations.
25-4A-9 Standard guidelines defined.
25-4A-10 Noncustodial parenting time--Minimum standard guidelines--Promulgation of court rules.
25-4A-11 Plaintiff in custody action to file and serve guidelines--Guidelines as court order--Custody of minors.
25-4A-12 Visitation agreement other than standard guidelines--Requirements.
25-4A-13 Objections to custody or visitation order--Hearing--Temporary order.
25-4A-14 Standard guidelines subject to certain court orders.
25-4A-15 Attorney fees and costs.
25-4A-16 Parents responsible for child support.
25-4A-16.1 Request for implementation of standard visitation guidelines--Objection--Hearing--Order.
25-4A-17 Notice required before relocating child--Exceptions.
25-4A-18 Contents of notice of relocation.
25-4A-19 Request for hearing on relocation--Presumption of consent--Best interests of child.
25-4A-20 Presumption that granting custody or visitation rights to person causing conception by rape or incest not in best interest of child.
25-4A-21 Joint physical custody--Consideration upon application--Findings.
25-4A-22 Rebuttable presumption upon finding of history of domestic abuse or assault.
25-4A-23 Home study or custody evaluation--Mediation.
25-4A-24 Factors for consideration on request for joint physical custody.
25-4A-25 Parental agreement for joint physical custody.
25-4A-26 No presumption of joint physical custody.
25-4A-27 Modification of existing orders.
25-4A-28 Parenting time enforcement form on Unified Judicial System website.
25-4A-A APPENDIX TO CHAPTER 25-4A
APPENDIX A.APPENDIX TO CHAPTER 25-4A
SOUTH DAKOTA PARENTING GUIDELINES
A powerful cause of stress, suffering, and maladjustment in children of divorce or separation is not simply the divorce or separation itself, but rather the continuing conflict between their parents before, during, and after the divorce and/or separation. To minimize harm to their children, parents should agree on a parenting arrangement that is most conducive to the children having frequent and meaningful contact with both parents, with as little conflict as possible. When parental maturity, personality, and communication skills are adequate, the ideal arrangement is reasonable time with the noncustodial parent upon reasonable notice, since that provides the greatest flexibility. The next best arrangement is a detailed parenting agreement made by the parents to fit their particular needs and, more importantly, the needs of their children. It is recommended that an annual calendar be prepared so that the parents and the children are aware of the parenting schedule. If the parents are unable to agree on their own Parenting Plan, however, these Guidelines become mandatory and will be used as their Parenting Plan and are enforceable as a court order. SDCL 25-4A-10, 25-4A-11. In the event a parent's time with the children becomes an issue in court, the judge will set whatever Parenting Plan best meets the needs of the children.
GUIDELINE 1. GENERAL RULES
A parent must always avoid speaking negatively about the other parent and must firmly discourage such conduct by relatives or friends. Each parent should speak in positive terms about the other parent in the presence of the children. Each parent must encourage the children to respect the other parent. Children should never be used by one parent to spy or report on the other parent. The basic rules of conduct and discipline established by the custodial parent should be the baseline standard for both parents and any step-parents, and consistently enforced by all caregivers, so that the children do not receive mixed messages.
Children will benefit from continued contact with all relatives and friends on both sides of the family for whom they feel affection. Such relationships must be protected and encouraged. But relatives, like parents, need to avoid being critical of either parent in front of the children. Parents should have their children maintain ties with both the maternal and paternal relatives. Usually the children will visit the paternal relatives during times when the children are with their father and the maternal relatives during times when they are with their mother.
In cases where both parents reside in the same community at the time of separation, and then one parent leaves the area, thus changing the Parenting Plan, the court will consider imposing on the parent who moved the travel costs for the children necessary to facilitate future time with the children; however, the court will also consider other factors such as the economic circumstances of the parents and the reasons prompting the move. Before relocating the children, the custodial parent is required to comply with South Dakota's statutory forty-five-day written notice requirements. SDCL 25-4A-17.
1.1. Parental Communication. Parents must always keep each other advised of their home and work addresses and telephone numbers. Whenever feasible, all communication concerning the children must be conducted directly between the parents in person, or by telephone, or at their residences, or via email or text message. Absent an emergency, communication should not occur at a parent's place of employment.
1.2. Grade Reports and Medical Information. The custodial parent must provide the noncustodial parent with the name, address, and telephone number of the school where any child attends and must authorize the noncustodial parent to communicate concerning the child directly with the school and with the child's doctors and other professionals, outside the presence of the custodial parent. The noncustodial parent also has an obligation to contact the school to ensure receipt of school report cards, notices, etc., so that he/she can remain involved with their child's education. Both parents will be listed on all of the child's records. Each parent must immediately notify the other parent of any medical emergencies or serious illnesses of a child. Access to records and information pertaining to a minor child, including, but not limited to, medical, dental, orthodontia and similar health care, and school records must be made equally available to both parents. Counseling, psychiatric, psychotherapy, and other records subject to confidentiality or privilege must only be released in accordance with state and federal law; but, if available to one parent, must be available to both. The parents must make reasonable efforts to ensure that the name and address of the other parent is listed on all such records. If the child is taking medications, the custodial parent must provide a sufficient amount and appropriate instructions. If either parent enrolls the child in any social, beneficent, religious, or peer group activity, service, benefit, or program for which written application is required, the enrolling parent must provide the name and address of the other parent on, or supplementary to, the application. [This provision does not apply to insurance or annuities.] The parent enrolling the child shall advise the other parent of the name of the coach, director, and organization providing the activity along with their contact information. The custodial parent must notify the noncustodial parent of all school or other events (for example, church and sports) involving parental participation. The noncustodial parent also has an obligation to contact the activity director to ensure receipt of information such as practice schedules, games, etc.
Attendance at academic or disciplinary meetings pertaining to the minor child shall be limited to the parents and the respective school professional(s). Others shall not attend such meetings without advance mutual parental agreement or court order.
1.3. Clothing. The custodial parent will send an appropriate supply of children's clothing with the children, which must be returned clean (when reasonably possible) with the children by the noncustodial parent. The noncustodial parent must advise, as far in advance as possible, of any special activities so that appropriate clothing belonging to the children may be sent. It is recommended that the noncustodial parent have some basic clothing available in his/her home to ensure that all of the children's basic needs are met.
1.4. Withholding Support or Time with the Children. Neither time with the children nor child support is to be withheld because of either parent's failure to comply with a court order. Only the court may enter sanctions for non-compliance. Children have a right both to support and, absent abuse or other safety concerns, time with the noncustodial parent, neither of which is dependent upon the other. In other words, no support does not mean the children will spend no time with the noncustodial parent, and no time with the noncustodial parent does not mean no support needs to be paid to the custodial parent. If there is a violation of either the parenting order or a support order, the exclusive remedy is to apply to the court for appropriate sanctions.
1.5. Adjustments in Parenting Plan. Although this is a specific schedule, the parents are expected to fairly modify the Parenting Plan when family necessities, illnesses, or commitments reasonably so require. The requesting parent must act in good faith and give as much notice as circumstances permit.
1.6. Insurance Forms. The parent who has medical insurance coverage on the children must supply to the other parent an insurance card and, as applicable, insurance forms and a list of insurer-approved or HMO-qualified health care providers in the area where the other parent is residing. Except in emergencies, the parent taking the children to a doctor, dentist, or other provider not so approved or qualified may be required to pay the additional cost thus created. However, when there is a change in insurance, which requires a change in medical care providers and a child has a chronic illness, thoughtful consideration should be given by the parents to what is more important, i.e., allowing the child to remain with the original provider or the economic consequences of changing carriers. When there is an obligation to pay medical expenses, the parent responsible for paying must be promptly furnished with the bill, and where applicable, the explanation of benefits, by the other parent. The parents must cooperate in submitting bills to the appropriate insurance carrier. Thereafter, the parent responsible for paying the balance of the bill must make arrangements directly with the health care provider and will inform the other parent of such arrangements unless previously paid by the other parent. Insurance refunds must be promptly turned over to the parent who paid the bill for which the refund was received.
1.7. Child Support Abatement. Unless a court order otherwise provides, child support will not abate during any period when the children are with the noncustodial parent. South Dakota law allows for child support abatements and offsets under certain circumstances. See generally SDCL 25-7. However, no abatement or offset may be taken unless there is a court order authorizing it.
1.8. Noncustodial Parent's Missed Time with the Children. When scheduled time with the children cannot occur due to events beyond either parent's control, such as illness of the parent exercising time with the children, then a mutually agreeable substituted date will be arranged, as quickly as possible. Each parent must timely advise the other parent when scheduled time with the children cannot be exercised. Missed time with the children must not be unreasonably accumulated.
1.9. Children of Different Ages. Except with very young children and adolescents, it usually makes sense for all the children to share the same schedule of parenting time with the noncustodial parent. Having brothers or sisters along can be an important support for children. Infants have special needs that may well prevent a parent from being with both the infant and the older children at the same time. Teenagers' special needs for peer involvement and for some control of their own lives may place them on different schedules from their younger brothers and sisters. Because it is intended that the noncustodial parent's time with the children be a shared experience between siblings and, unless these guidelines, a court order, or circumstances such as age, illness, or a particular event suggests otherwise, all the children should participate together in spending time with the noncustodial parent.
1.10. Communication with Children. Either parent may call, text, email, or Skype (or use similar technology) to communicate with the children at reasonable times and with reasonable frequency during those periods the children are with the other parent. The children may, of course, call, text, email, or Skype (or use similar technology) to communicate with either parent, at reasonable hours and with reasonable frequencies. Parents are cautioned that communication between the parent and the children should not be so excessive as to interfere with the other parent's time, nor used to undermine the other parent's authority. During long vacations, the parent with whom the children are on vacation is required to make the children available for telephone calls with the other parent at least every three days. At all other times, the parent the children are with must not refuse to answer the other parent's telephone calls or turn off the telephone in order to deny the other parent telephone contact. If a parent uses an answering machine or cell phone voicemail, messages left should be returned by a telephone call to that parent as soon as possible. Parents should agree on a specified time for calls to the children so that the children will be made available no less than three days per week. Either parent may provide a child with a cell phone. In such instances, it is not appropriate for a parent to use restrictions from talking to the other parent on that cell phone as a means of punishing the child subject to a parent's ability to set reasonable restrictions on cell phone use while the child is present in that parent's home. Communication between a parent and child must not be censored, recorded, or monitored, absent a court order. With older children, establishing an email account for communication with the other parent is recommended and should likewise not be read or monitored by the other parent without court permission. Email communication or text messaging between parents is also helpful in keeping the other parent informed about the children. Abuse, neglect, criminal activity, or protection orders may impact access to information regarding the custodial parent or the children.
1.11. Other Contact. Parents have an unrestricted right to send cards, letters, packages, audio and video cassettes, CDs, or similar items, to their children. Children also have the same right to send items to their parents. Neither parent will interfere with this right. A parent may wish to provide the children with self-addressed, stamped envelopes for the children's use in corresponding with that parent.
1.12. Social Media. Parents shall be entitled to the username and passwords to all social media accounts of the minor children. Each parent shall have unfettered full access to the social media accounts of the minor children with the exception of private communications between the other parent and children.
1.13. Privacy of Residence. A parent may not enter the residence of the other parent except by express invitation of the resident parent, regardless of whether a parent retains a property interest in the residence. The children must be picked up at and returned to the front entrance of the other parent's residence. The parent dropping off the children must not leave until the children are safely inside the other parent's residence. Parents must refrain from surprise visits to the other parent's home. A parent's time with the children is his/her own, and the children's time with the other parent is equally private.
1.14. Parenting Time Refusal. Parents should always encourage the children to attend parenting time with the other parent absent circumstances outlined in 1.17. Parents shall not deny parenting time with the other parent solely based on the refusal of the children.
1.15. Special Considerations for Adolescents. While children never get to choose where they live, within reason, the parents should honestly and fairly consider their teenager's wishes on time with a parent. Neither parent should attempt to pressure their teenager to make a decision on time with a parent adverse to the other parent. Teenagers should explain the reasons for their wishes directly to the affected parent, without intervention by the other parent.
1.16. Day Care Providers. When parents reside in the same community, they should use the same day care provider. To the extent feasible, the parents should rely on each other to care for the children when the other parent is unavailable.
1.17. Special Circumstances:
A. Child Abuse. When child abuse has been established and a continuing danger is shown to exist, all time with the abusive parent must cease or only be allowed under supervision, depending on the circumstances. Court intervention is usually required in child abuse cases.
B. Domestic Abuse. Witnessing domestic abuse has long-term, emotionally detrimental effects on children. A person who loses control and acts impulsively with the other parent may be capable of doing so with children as well. Depending on the nature of the spousal abuse and when it occurred, the court may require an abusive parent to successfully complete appropriate counseling before being permitted unsupervised time with the children.
C. Substance Abuse. Time with the children must not occur when a parent is abusing substances.
D. Long Interruption of Contact. In those situations where the noncustodial parent has not had an ongoing relationship with the children for an extended period, time with the children should begin with brief parenting time and a gradual transition to the Parenting Plan in these guidelines.
E. Abduction Threats. Noncustodial parents who have threatened to abduct or hide the children will have either no time with the children or only supervised time.
F. Breastfeeding Child. Parents must be sensitive to the special needs of breastfeeding children. A child's basic sleep, feeding, and waking cycles should be maintained to limit disruption in the child's routine. Forcibly changing these routines due to the upheaval of parental disagreement is detrimental to the physical health and emotional well-being of the child. On the other hand, it is important that the child be able to bond with both parents.
(a) For children being exclusively breastfed, the nursing child can still have frequent parenting time with the father. The amount of time will be dictated by the infant's feeding schedule, progressing to more time as the child grows older. Yet where both parents have been engaged in an ongoing caregiving routine with a nursing child, the same caregiving arrangement should be continued as much as possible to maintain stability for the child. If the father has been caring for the child overnight or for twenty-four hour periods while the nursing mother sleeps or works, then these guidelines encourage that arrangement to continue.
(b) A mother may not use breastfeeding as a means to deprive the father of time with the child. If, for example, a nursing mother uses day care or a babysitter for the child, the same accommodations (i.e., bottle feeding with breast milk or formula, or increased time between breast feeding sessions) used with the day care provider or babysitter will be used with the father, if the father is capable of personally providing the same caregiving.
G. A Parent's New Relationship. Parents should be sensitive to the danger of exposing the children too quickly to new relationships while they are still adjusting to the trauma of their parents' separation and/or divorce.
H. Religious Holidays and Native American Ceremonies. Parents must respect their children's needs to be raised in their faith and to maintain their cultural heritage and must cooperate with each other to achieve these goals. However, religious holidays and Native American ceremonies should not be used to unreasonably deprive the noncustodial parent of time with the children.
I. Other. The court will limit or deny time with the children to parents who show neglectful, impulsive, immoral, criminal, assaultive, or other risk-taking behavior with or in the presence of the children.
1.18. Additional Time with the Noncustodial Parent. The children's time with the noncustodial parent should be liberal and flexible. For many parents, these guidelines should be considered only a minimum direction for interaction with the children. These guidelines are not meant to foreclose the parents from agreeing to modify the Parenting Plan as they find reasonable and in the best interests of their children at any given time.
GUIDELINE 2. NONCUSTODIAL PARENTING TIME WITH CHILDREN UNDER AGE FIVE
2.1. Children Under Age Five Generally. Newborns (birth to three months) and infants (three to six months) have a great need for continuous contact with their primary caregiver, but also frequent contact with both parents who provide a sense of security, nurturing, and predictability. Generally, overnights for a very young child is not recommended unless the noncustodial parent is very closely attached to the child and is able personally to provide primary care, the child is adaptable, and the parents are cooperative. Older children are able to tolerate more and longer separations from one parent or the other. The following guidelines for children under age five are designed to take into account childhood developmental milestones. Since children mature at different rates, these may need to be adjusted to fit a child's individual circumstances. These guidelines will not apply in those instances where the parents are truly sharing equally all the caregiving responsibilities for the children and the children are equally attached to both parents. In those situations where the custodial parent has been the primary caregiver and the noncustodial parent has maintained a continuous relationship with the children, but has not shared equally in child caregiving, the following guidelines generally apply.
2.2. Newborns - Birth until Three Months. Three, two-hour custodial periods per week and one weekend custodial period for six hours at the custodial parent's residence or another agreed location. No overnights, except in circumstances described in 1.17 F(a) and (b) (noncustodial parent caring for infant in accord with previous arrangements). Breastfeeding must be accommodated, but the parents must cooperate in working out alternatives. See Paragraph 1.17 F (breastfeeding).
2.3. Infants - Three until Six Months. Alternative Parenting Plans: (1) Three, three-hour custodial periods per week, and one weekend day for six hours. Breast feeding must be accommodated, but the parents must cooperate in working out alternatives. Or (2) Three, three-hour custodial periods per week, and one overnight on a weekend not to exceed eighteen hours, if the child is not breastfeeding and the noncustodial parent is capable of personally providing primary care. See exceptions in Paragraph 1.17 F (breastfeeding).
2.4. Babies - Six until Twelve Months. Alternative Parenting Plans: (1) Three, four-hour custodial periods per week and one weekend day for six hours; or (2) Three, four-hour custodial periods per week and one overnight on a weekend not to exceed eighteen hours, if the child is not breastfeeding, and the noncustodial parent is capable of providing personal primary care; or (3) Child spends time in alternate homes, but spends significantly more time in one parent's home and no more than one to two overnights spaced regularly throughout the week at the other parent's home, if the child is not breastfeeding. As to arrangements (1), (2), and (3), see exceptions in Paragraph 1.17 F. Arrangement (3) requires an adaptable child.
2.5. Toddlers - Twelve until Thirty-six Months. Alternative Parenting Plans: (1) Three, eight-hour custodial periods per week on a predictable schedule; or (2) Three, eight-hour custodial periods per week on a predictable schedule and one overnight per week not to exceed eighteen hours; or (3) Child spends time in alternate homes, but with significantly more time in one parent's home with one or two overnights spaced regularly throughout the week. Arrangement (3) requires an adaptable child.
2.6. Preschoolers - Three until Five Years. Alternative Parenting Plans: (1) One overnight custodial period not to exceed eighteen hours and two additional eight-hour parenting periods each week, separate from the overnight custodial period, with the child returning to the custodial parent's home at least one hour before bedtime; or (2) Two or three nights at one home, spaced throughout the week, the remaining time at the other parent's home. Arrangement (2) requires an adaptable child.
If parents cannot agree on which provision shall apply in sections 2.2 through 2.6, the parties shall use option 1 until further order of the court.
2.7. Children in Day Care. In families where a child has been in day care before the parental separation, the child may be able to tolerate more time with the noncustodial parent earlier because the child is more accustomed to separations from both parents. The noncustodial parent of a child under age five should not during his/her time place the child with a babysitter or day care provider. If the noncustodial parent cannot be with the child personally, the child should be returned to the custodial parent. Allowing the child to visit with relatives for short periods of time may be appropriate, if the relatives are not merely serving as babysitters. While a child is in day care, the noncustodial parent may remove the child to have parenting time, provided that suitable prior arrangements are made with both the custodial parent and the day care provider. This parenting time must also not jeopardize the provision of the day care by that provider. The noncustodial parent must be available to provide direct care and at least one day's notice is given to the custodial parent. The parent removing the child is either to take the child to the other parent at the regular pick up time, or see that the child is returned to day care prior to the pick up time. Parental responsibility for day care costs will remain the same.
2.8. Holidays. For toddlers and preschool-age children, when the parents celebrate the holiday in the same or a nearby community, the parents will alternate Easter, Memorial Day, 4th of July, Labor Day, Thanksgiving, Christmas Eve and Christmas Day each year so that the children spend equal time with each parent during this holiday period. Prior to a child's 5th birthday, holiday parenting time shall be consistent with the longest period of parenting time currently being exercised by the noncustodial parent starting on the day of the holiday.
2.9. Mother's Day - Father's Day. The children shall be with their mother each Mother's Day and with their father each Father's Day. Prior to a child’s 5th birthday, this parenting time shall be consistent with the longest period of parenting time currently being exercised by the noncustodial parent.
2.10. Vacation for Children Three until Five Years Old. Upon thirty days advance written notice (by mail, email, or text message), each parent is entitled to a vacation of up to two separate one-week periods of uninterrupted time with children each year, not to conflict with the other parent’s holiday parenting time. Parents are encouraged to coordinate vacation plans.
GUIDELINE 3. NONCUSTODIAL PARENTING TIME FOR CHILDREN AGE FIVE AND OLDER WHEN THERE IS SOLE CUSTODY OR PRIMARY PHYSICAL CUSTODY AND THE PARENTS RESIDE NO MORE THAN 200 MILES APART
3.1. Weekends. Parenting time will consist of alternate weekends from Friday at 5:30 p.m. to Sunday at 7:00 p.m., or an equivalent period of time if the noncustodial parent is unavailable on weekends and the children do not miss school. The starting and ending times may change to fit the parents' schedules. In addition, if time and distance allow, the noncustodial parent may spend time on a regular schedule with the children once or twice per week for two or three hours, or have one midweek overnight time. In most cases, it is a positive experience for the children to have the noncustodial parent involved in taking the children to and from school, and it is recommended that the noncustodial parent extend the alternating weekends by picking up the children from school on Friday and taking the children to school on Monday. All transportation for the midweek custodial periods is the responsibility of the parent exercising them.
3.2. Mother's Day - Father's Day. The children shall be with their mother each Mother's Day and with their father each Father's Day from 9:00 a.m. to 8:00 p.m.
3.3. Summer Vacation. The children will be with each parent for one-half of the school summer vacation. Summer vacation begins the day after school is released and ends the day before school commences. The custodial parent may elect to have the child the week before school resumes as part of their summer vacation to allow the child to be well prepared to recommence school. At the option of the noncustodial parent, the time may be consecutive or it may be split into two or more blocks of time. If the children go to summer school and it is impossible for the noncustodial parent to schedule this time other than during summer school, the noncustodial parent may elect to take the time when the children are in summer school and transport the children to the summer school sessions at the children's school or an equivalent summer school session in the noncustodial parent's community.
3.4. Winter (Christmas) Vacation. The children will spend with each parent one-half of the school winter vacation, a period that begins when the children are released from school and continues to the morning of the day the children return to school. If the parents cannot agree on the division of this period, the noncustodial parent will have the first half in even-numbered years. If there are an odd number of days during winter vacation, the noncustodial parent shall get the extra day. Holidays, such as Christmas, are extremely important times of shared enjoyment, family tradition, and meaning. Families living in the same or nearby communities must work out ways for the children to spend part of each important holiday at both homes. If the parents are unable to work out a shared arrangement for the Christmas/New Year holiday and they celebrate the holidays in the same or a nearby community, in those years when Christmas does not fall in a parent's week, the children will be with the other parent from 11:00 a.m. to 8:00 p.m. on Christmas Day.
3.5. Holidays. Parents will alternate the following holidays so long as they are observed by the child's school district: Martin Luther King, Jr. Day; President's Day; Easter; Memorial Day; the 4th of July; Labor Day; Native Americans' Day; Halloween; and Thanksgiving. Thanksgiving will begin on Wednesday evening and end on Sunday evening; Easter weekend will begin on Thursday evening and end on Sunday evening; Martin Luther King Jr. Day, President's Day, and Native Americans' Day weekends will begin on the preceding Friday evening and end on Monday evening; the 4th of July will begin the evening of July 3 at 5:00 p.m. and end the morning of July 5 at 10:00 a.m.; Halloween will begin at 3:00 p.m. and end at 8:00 p.m. Unless otherwise specified, holiday weekends begin when the children are released from school and continues to the morning of the day the children are returned to school.
3.6. Children's Birthdays. As with holidays, a child's birthday will be alternated annually between the parents. If a child's birthday falls on a weekday, it will be celebrated from 3:00 p.m. to 8:00 p.m. If a child's birthday falls on a weekend, it will be celebrated from 11:00 a.m. to 8:00 p.m. In some instances, the parents may agree to share the child's birthday, with each parent spending a few hours with the child.
3.7. Parent's Birthdays. The children will spend the day with the parent on the parent's birthday, unless it interferes with the other parent's scheduled time during a vacation or a major holiday. If a parent's birthday falls on a holiday, that parent may elect to exercise parenting time on another day during that month, upon sufficient advance notice to the other parent.
3.8. Conflicts Between Regular and Holiday Weekends. When there is a conflict between a holiday weekend and the regularly scheduled weekend time with the parent, the holiday takes precedence. Unless mutually agreed, there will be no makeup parenting time in conflicts between holiday weekend and the regularly scheduled weekend time.
3.9. Parenting Time Before and During Summer Periods. The custodial parent will have the weekend before the beginning and the weekend after the end of the noncustodial parent's summer period, regardless of whose weekend it may be. Weekend time "missed" during the summer period will not be "made up." During the noncustodial parent's extended summer time with the children of more than three consecutive weeks, it will be the noncustodial parent's duty to arrange for a mutually convenient 48-hour continuous period of time for the custodial parent to spend with the children, unless impractical because of distance.
3.10. Parent's Vacation with Children Age Five and Older. Unless otherwise specified in a court order or agreed upon by the parents, each parent is entitled to a vacation with the children for a reasonable period of time, usually equal. The custodial parent should plan a vacation during the time when the other parent is not scheduled to spend time with the children. Parents are encouraged to coordinate vacation plans.
3.11. Notice of Canceled Time with the Children. Whenever possible, the noncustodial parent will give a minimum of three days notice of intent not to exercise all or part of the scheduled time with the children. When such notice is not reasonably possible, the maximum notice permitted by the circumstances, and the explanation, will be provided to the other parent. Custodial parents will give the same type of notice when events beyond their control make the cancellation or modification of the scheduled time with the noncustodial parent necessary. If the custodial parent cancels or modifies the noncustodial parent's time with the children because the children have a scheduling conflict, the noncustodial parent will be given the opportunity to take the children to the scheduled event or appointment.
3.12. Pick Up and Return of Children. When the parents live in the same community, the responsibility for picking up and returning the children will be shared. Usually the parent who receives the children will handle the transportation. The person picking up or returning the children has an obligation to be punctual, to arrive at the agreed-upon time, not substantially earlier or later. Repeated, unjustified violations of this provision may subject the offender to court sanctions.
GUIDELINE 4. NONCUSTODIAL PARENTING TIME WITH CHILDREN AGE FIVE AND OLDER WHEN PARENTS RESIDE MORE THAN 200 MILES APART
4.1. Holidays. Where distance and finances permit, on an alternating basis, the Thanksgiving break, school winter (Christmas) break, and spring break will be with the noncustodial parent.
4.2. Summers. This parenting time will consist of all but 10 days of the school summer vacation period beginning three days after school is released and ending one week before school recommences so the children will be well prepared to recommence school.
4.3. Priority of Summer Time with Noncustodial Parent. Summer time with the noncustodial parent takes precedence over summer activities (such as sports) when the noncustodial parent's time cannot be reasonably scheduled around such events. Even so, the conscientious noncustodial parent will often be able to enroll the child in a similar activity in the noncustodial parent's community.
4.4. Notice. At least sixty (60) days written notice (by mail, email, or text message) must be given by the noncustodial parent of the date for commencing extended summer parenting time with the children so that the most efficient means of transportation may be obtained and the parents and the children may arrange their schedules. Failure to give the precise number of days notice does not entitle the custodial parent the right to deny the noncustodial parent parenting time with the children.
4.5. Additional Time with the Noncustodial Parent. Where distance and finances permit, additional parenting time for the noncustodial parent, such as holiday weekends or special events, is encouraged. When the noncustodial parent is in the area where the children reside, or the children are in the area where the noncustodial parent resides, liberal time with the children must be allowed and because the noncustodial parent does not get weekly time with the children, the children can miss some school to spend time with the noncustodial parent, so long as it does not substantially impair the children's scholastic progress.
GUIDELINE 5. SHARED PARENTING PLAN
5.1. Shared Parenting Plan. South Dakota law allows parents to agree in writing to a detailed Shared Parenting Plan, which provides that the children will reside no less than one hundred eighty nights per calendar year in each parent's home, and that the parents will share the duties and responsibilities of parenting the children and the expenses of the children in proportion to their incomes. Such Shared Parenting Plan must be incorporated into the custody order. SDCL 25-7-6.27. A Shared Parenting Plan requires adaptable children and cooperative parents.
5.2. Factors for Shared Parenting. SDCL 25-4A-24 sets forth the factors the court considers in granting shared parenting.
Source: SL 2004, ch 313 (Supreme Court Rule 02-07), eff. July 1, 2002; SL 2013, ch 261, (Supreme Court Rule 12-10), eff. Apr. 18, 2012.Source: SL 2004, ch 313 (Supreme Court Rule 02-07), eff. July 1, 2002; SL 2013, ch 261, (Supreme Court Rule 12-10), eff. Apr. 18, 2012.Source: SL 2004, ch 313 (Supreme Court Rule 02-07), eff. July 1, 2002; SL 2013, ch 261, (Supreme Court Rule 12-10), eff. Apr. 18, 2012.Source: SL 2004, ch 313 (Supreme Court Rule 02-07), eff. July 1, 2002; SL 2013, ch 261, (Supreme Court Rule 12-10), eff. Apr. 18, 2012.Source: SL 2004, ch 313 (Supreme Court Rule 02-07), eff. July 1, 2002; SL 2013, ch 261, (Supreme Court Rule 12-10), eff. Apr. 18, 2012.Source: SL 2013, ch 261, (Supreme Court Rule 12-10), eff. Apr. 18, 2012; SL 2020, ch 251 (Supreme Court Rule 20-03), eff. Jul. 1, 2020.
25-4A-1. Custody or visitation rights enforceable by contempt proceedings.
After notice and hearing, any decree or order of the court relating to custody of or visitation with a child may be enforced by contempt.
Source: SL 1994, ch 195, § 1.
25-4A-2. Written request for order to show cause for violation of visitation or custody decree--Hearing date.
Any party granted visitation or custody rights to a child by a court decree may request the court to enter an order to show cause why the other party should not be held in contempt of court for violation of the decree relating to visitation or custody of the child. Upon receipt of a written request for an order to show cause, the court may issue such an order and forthwith schedule a hearing date not less than thirty days in the future. No particular formality may be required of the moving party in making a written request for an order to show cause.
Source: SL 1994, ch 195, § 2.
25-4A-3. Affirmative inquiry into contempt--Contemnor's rights.
At the hearing, the court shall affirmatively inquire into the matters of visitation and custody and enter any orders the court deems appropriate. The alleged contemnor has the right to remain silent and the right to counsel.
Source: SL 1994, ch 195, § 3.
25-4A-4. Affirmative defense by contemnor.
An alleged contemnor may plead and prove that the movant voluntarily relinquished the actual care, control, and possession of the child for time encompassed by the court-ordered periods of possession. Such a relinquishment is an affirmative defense in whole or part to the order to show cause.
Source: SL 1994, ch 195, § 4.
25-4A-4.1. Motion for enforcement of visitation rights--Hearing.
If a noncustodial parent believes that the custodial parent has willfully violated or willfully failed to comply with any provisions of a custody or visitation decree, the noncustodial parent may file with the court clerk a motion for enforcement of visitation rights. The motion shall be filed on a form provided by the court clerk. Upon filing of the motion, the court shall immediately set a hearing on the motion, which may not be more than twenty-one days after the filing of the motion.
Source: SL 2018, ch 155, § 2.
25-4A-5. Sanctions for violation of custody or visitation decree.
If the court finds that any party has willfully violated or willfully failed to comply with any provisions of a custody or visitation decree, the court shall impose appropriate sanctions to punish the offender or to compel the offender to comply with the terms of the custody or visitation decree.
The court may enter an order clarifying the rights and responsibilities of the parents and the court's order. The court may order one or more of the following sanctions:
(1) To require the offender to provide the other party with make up time with the child equal to the time missed with the child, due to the offender's noncompliance;
(2) To require the offender to pay, to the other party, court costs and reasonable attorney's fees incurred as a result of the noncompliance;
(3) To require the offender to pay a civil penalty of not more than the sum of one thousand dollars;
(4) To require the offender to participate satisfactorily in counseling or parent education classes;
(5) To require the offender to post bond or other security with the court conditional upon future compliance with the terms of the custody or visitation decree or any ancillary court order;
(6) To impose a jail sentence on the offender of not more than three days; or
(7) In the event of an aggravated violation or multiple violations, the court may modify the existing visitation or custody situation, or both of any minor child.
The provisions of this section do not prohibit the court from imposing any other sanction appropriate to the facts and circumstances of the case.
Source: SL 1994, ch 195, § 5; SL 2008, ch 125, § 1; SL 2018, ch 155, § 3.
25-4A-5.1. Copy of § 25-4A-5 attached to order for parenting time.
Any order of the court for parenting time shall have attached a copy of § 25-4A-5.
Source: SL 2018, ch 155, § 1.
25-4A-6. Probation for contemnor.
The contemnor may be placed on probation for a period of time, not to exceed five years or until discharge. The probation, if warranted, may be supervised by a probation officer who shall, if directed by the court, require reports from the contemnor and visit with the contemnor at the contemnor's home.
Source: SL 1994, ch 195, § 6.
25-4A-7. Motion to revoke probation of contemnor.
Any violation of the terms and conditions of the probation imposed by the court may be brought before the court by a motion to revoke probation. The motion to revoke probation may be made by the original moving party, the attorney general, or the state's attorney. If the motion to revoke probation alleges a prima facie case that the probationer has violated a term or condition of probation, the court may cause the probationer's arrest by warrant. An arrested probationer shall be brought promptly before the court causing the arrest.
Source: SL 1994, ch 195, § 7.
25-4A-8. Application of section 23A-38-2 to proceedings for custody or visitation decree violations.
The provisions of § 23A-38-2 do not apply to §§ 25-4A-1 to 25-4A-7, inclusive.
Source: SL 1994, ch 195, § 8.
25-4A-9. Standard guidelines defined.
For the purposes of §§ 25-4A-9 to 25-4A-16, inclusive, the term, standard guidelines, means the parenting guidelines established by court rules promulgated by the South Dakota Supreme Court pursuant to § 25-4A-10.
Source: SL 2002, ch 125, § 1; SL 2008, ch 126, § 1.
25-4A-10. Noncustodial parenting time--Minimum standard guidelines--Promulgation of court rules.
The South Dakota Supreme Court shall promulgate court rules establishing standard guidelines to be used statewide for minimum noncustodial parenting time in divorce or separate maintenance actions or any other custody action or proceeding. The minimum standard guidelines shall provide a framework for noncustodial parenting time including frequency and time for noncustodial parenting time; hours or days of noncustodial parenting time; definitions for weekends, holidays, birthdays, and other special occasions; and time periods for summer noncustodial parenting time.
In establishing the minimum standard guidelines, the court may consider varying ages and circumstances of children and treat varying ages and circumstances differently.
The Supreme Court shall establish rules pursuant to § 16-3-1 to provide for a public hearing process to review the minimum standard guidelines and to recommend any amendments deemed to be necessary.
Source: SL 2002, ch 125, § 2; SL 2008, ch 126, § 2; SL 2020, ch 105, § 1.
25-4A-11. Plaintiff in custody action to file and serve guidelines--Guidelines as court order--Custody of minors.
Upon the filing of a summons and complaint for divorce or separate maintenance or any other custody action or proceeding, the plaintiff shall also file and serve upon the defendant a copy of the standard guidelines. The standard guidelines attached to the summons shall become an order of the court upon fulfillment of the requirements of service. Any minor child of the marriage shall remain in the custody of the parent who has been the primary caregiver for the minor child for the majority of time in the twelve months preceding the filing of the summons and complaint, unless the parties agree otherwise. The standard guidelines shall apply and continue in effect, unless the parties agree, or the court orders otherwise. Imposition of the standard guidelines creates no presumption as to who may be awarded custody at any hearing.
Source: SL 2002, ch 125, § 3; SL 2008, ch 127, § 1.
25-4A-12. Visitation agreement other than standard guidelines--Requirements.
Any agreement by the parties for visitation other than the standard guidelines shall be in writing, signed by both parties and filed with the court. The agreed plan shall be approved by court order and replace the standard guidelines or any plan previously filed.
Source: SL 2002, ch 125, § 4.
25-4A-13. Objections to custody or visitation order--Hearing--Temporary order.
If either party objects to the initial custody arrangement in § 25-4A-11 or the standard guidelines, the court shall order a hearing which shall be held not later than thirty days after the date of the objection. In making an order for temporary custody, the order for custody shall reflect the degree of each parent's demonstrated participation in the child's life. The court shall issue a temporary custody and visitation order after considering the best interests of the child consistent with the provisions of § 25-4-45. If the order for temporary custody results in less than a substantially equal parenting time, the court shall construct a parenting time schedule that maximizes the time each parent has with the child consistent with each parent's demonstrated participation in the child's life and is consistent with ensuring the child's welfare. Each temporary custody order shall include specific findings of fact and conclusions of law, except if the court confirms the agreement of the parties.
Source: SL 2002, ch 125, § 5; SL 2018, ch 156, § 1.
25-4A-14. Standard guidelines subject to certain court orders.
The standard guidelines are subject to any provision established by a South Dakota state court in the following: a temporary or permanent domestic protection order, an order arising out of an abuse or neglect proceeding, a bond condition arising out of a criminal case, and an order in any other proceeding affecting child custody or support.
Source: SL 2002, ch 125, § 6.
25-4A-15. Attorney fees and costs.
The court may order either party to pay attorney fees and costs in an action filed under §§ 25-4A-9 to 25-4A-16, inclusive, in accordance with § 15-17-38 or any other applicable statute.
Source: SL 2002, ch 125, § 7.
25-4A-16. Parents responsible for child support.
The parents are responsible for payment of child support in accordance with § 25-7-6.1.
Source: SL 2002, ch 125, § 8.
25-4A-16.1. Request for implementation of standard visitation guidelines--Objection--Hearing--Order.
Subject to the jurisdictional and procedural provisions of chapter 26-5B, any parent subject to a court order of this state or subject to the jurisdiction of a court of this state pursuant to chapter 26-5B relating to visitation, custody, or child support may request the court to enter an order implementing the standard visitation guidelines. If the request is made in a child support proceeding, compliance with chapter 26-5B, including appropriate notice and an opportunity to be heard, if not previously provided, is required. The request shall be in writing and shall include a copy of the existing order establishing custody, visitation, or support and provide a current address of the responding party. Upon filing of the written request, the moving party shall serve a copy of the standard guidelines, together with a copy of the request and provide notice that absent an objection, the guideline visitation shall be imposed. The notice shall provide instructions as to the manner in which objections may be made. The service of such notice shall be deemed complete when an affidavit of the service of such notice and of the particular mode thereof, duly signed and verified by the person or officer making the service, shall have been filed with the court and such record or affidavit shall be presumptive evidence of the completed service of the notice herein required. If a party objects to the imposition of the standard guidelines within ten days of service, the court shall conduct an expedited hearing as soon as practical. Based upon the evidence presented at the hearing, the court may order the parties to abide by the standard visitation guidelines or may order any other relief as it deems appropriate.
Source: SL 2006, ch 140, § 1; SL 2008, ch 128, § 1; SL 2009, ch 278 (Supreme Court Rule 08-08), eff. Nov. 1, 2008; SL 2012, ch 140, § 1.
25-4A-17. Notice required before relocating child--Exceptions.
If an existing custody order or other enforceable agreement does not expressly govern the relocation of the principal residence of a child, a parent who intends to change his or her principal residence shall, provide reasonable written notice by certified mail or admission of service to the other legal parent of the child. Reasonable notice is notice that is given at least forty-five days before relocation or a shorter period if reasonable under the specific facts giving rise to the relocation. Proof of the notice shall be filed with the court of record unless notice is waived by the court.
No notice need be provided pursuant to this section if:
(1) The relocation results in the child moving closer to the noncustodial parent; or
(2) The relocation is within the boundaries of the child's current school district; or
(3) There is an existing valid protection order in favor of the child or the custodial parent against the noncustodial parent unless the noncustodial parent has a valid order for parenting time established either in the protection order file or another custody proceeding subsequent to the entry of the protection order; or
(4) Within the preceding twelve months, the nonrelocating parent has been convicted of violation of a protection order, criminal assault, child abuse, or other domestic violence and either the child or the custodial parent was the victim of the crime or violation unless the noncustodial parent has a valid order for parenting time established subsequent to the conviction.
Source: SL 2004, ch 173, § 1; SL 2016, ch 141, § 1.
25-4A-18. Contents of notice of relocation.
The notice required in § 25-4A-17 shall contain the following:
(1) The address and telephone number, if known, of the new residence;
(2) The purpose for relocating;
(3) Why the relocation is in the best interest of the child; and
(4) The relocating party's proposed visitation plan for the nonrelocating parent upon relocation.
If a relocating parent is giving notice of relocation in compliance with subdivisions 25-4A-17(3) or (4), the address requirement in subdivision (1) of this section is fulfilled if the notice contains the city and state of the new residence.
Source: SL 2004, ch 173, § 2; SL 2016, ch 141, § 2.
25-4A-19. Request for hearing on relocation--Presumption of consent--Best interests of child.
At the request of the nonrelocating parent, made within thirty days of the notice of relocation, the court shall hold a hearing on the relocation. If no request for hearing is made within thirty days of notice, the relocation is presumed to be consented to by the nonrelocating parent. If an objection to the relocation is filed, the court shall consider the traditional best interest of the child factors when determining a proposed relocation that would result in a substantial alteration to the existing parenting time arrangement.
Source: SL 2004, ch 173, § 3; SL 2020, ch 106, § 1.
25-4A-20. Presumption that granting custody or visitation rights to person causing conception by rape or incest not in best interest of child.
There shall be a rebuttable presumption that it is not in the best interest of the child for the court to place the child in the custody of or to grant visitation rights to a person that the court has found by a standard of clear and convincing evidence to have committed an act of rape or incest against the other parent that resulted in the conception of the child. The court may revoke visitation rights upon such a finding.
Source: SL 2006, ch 139, § 2; SL 2019, ch 121, § 1.
25-4A-21. Joint physical custody--Consideration upon application--Findings.
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 § 25-4A-24, and shall make written findings of fact and conclusions of law regarding the best interests of the minor child, unless waived by both parties.
Source: SL 2014, ch 122, § 1.
25-4A-22. Rebuttable presumption upon finding of history of domestic abuse or assault.
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.
Source: SL 2014, ch 122, § 2.
25-4A-23. Home study or custody evaluation--Mediation.
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.
Source: SL 2014, ch 122, § 3.
25-4A-24. Factors for consideration on request for joint physical custody.
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 factors:
(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 consider;
(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;
(15) Whether a parent is physically and mentally capable of providing temporal, mental, and moral wellness for the child;
(16) Whether a parent has the capacity and disposition to provide the child with protection, food, clothing, medical care, and other basic needs;
(17) Whether a parent is willing and capable to provide the child love, affection, guidance, and education in order to impart the family's religion or creed;
(18) Whether a parent is committed to prepare the child for responsible adulthood, as well as to ensure that the child experiences a fulfilling childhood;
(19) Whether a parent provides exemplary modeling so that the child witnesses firsthand what it means to be a good parent, a loving spouse, and a responsible citizen;
(20) Whether a parent provides a stable and consistent home environment including the relationship and interaction of the child with the parents, stepparents, siblings, and extended families;
(21) The extent of the child's adjustment in regards to home, school, and community;
(22) Whether a break in attachment with the parent whom the child has formed a closer attachment would cause detriment due to the break in continuity for the child; and
(23) Whether a parent is guilty of misconduct that may have a harmful effect on the child.
Source: SL 2014, ch 122, § 4; SL 2018, ch 157, § 1.
25-4A-25. Parental agreement for joint physical custody.
If both parents agree to joint physical custody of a child, the court is not required to consider the factors set forth in § 25-4A-24.
Source: SL 2014, ch 122, § 5.
25-4A-26. No presumption of joint physical custody.
Nothing in §§ 25-4A-21 to 25-4A-27, inclusive, 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.
Source: SL 2014, ch 122, § 6.
25-4A-27. Modification of existing orders.
The enactment of §§ 25-4A-21 to 25-4A-27, inclusive, does not constitute a substantial change in circumstances justifying the modification of existing custody orders, but the provisions of §§ 25-4A-21 to 25-4A-27, inclusive, shall apply to modification proceedings which are otherwise properly before the court.
Source: SL 2014, ch 122, § 7.
25-4A-28. Parenting time enforcement form on Unified Judicial System website.
The Unified Judicial System shall develop and maintain the form on its website labeled, parenting time enforcement. The form shall include the following information:
(1) The court case number;
(2) The name of the custodial parent and the name of the noncustodial parent;
(3) The name and date of birth of each child;
(4) The reasons for the petition, including the last date of visitation and number of visitations in the last twelve months; and
(5) The petitioner's contact information.
Source: SL 2018, ch 155, § 4.