CHAPTER 25-5
PARENT AND CHILD
25-5-1 25-5-1, 25-5-2. Repealed by SL 1991, ch 210, §§ 1, 2
25-5-3 Presumption of parentage.
25-5-4 25-5-4, 25-5-5. Repealed by SL 1991, ch 210, §§ 4, 5
25-5-6 Parental control of child's property.
25-5-7 Parents equally entitled to custody and earnings of child born in wedlock.
25-5-7.1 Joint legal custody order--Factors for court's consideration--Joint physical custody.
25-5-7.2 Residential parent to make routine decisions concerning child.
25-5-7.3 Parents to have equal access to records pertaining to child--Name and address of both parents to be listed.
25-5-7.4 Written applications to enroll child in activity or program to provide name and address of other parent.
25-5-7.5 Access to records and application requirements not applicable to certain parents.
25-5-7.6 Parent sharing custody to foster other parent's relationship with child.
25-5-8 Father's rights not superior to mother's while separated.
25-5-9 Habeas corpus to award child custody when parents separated without divorce--Rules of law governing.
25-5-10 Custody and earnings of children born out of wedlock.
25-5-10.1 Best interest of child not presumed--Change of custody.
25-5-11 Wages of minor payable to minor or conservator.
25-5-12 Relinquishment of child control and earnings--Abandonment by parent.
25-5-13 Residence of child--Right to change--Procedure.
25-5-14 Parent and child not answerable for act of other.
25-5-15 Parental liability for willful acts of child--Limitation of recovery--Motor vehicle cases excepted--Specific findings in disputed cases.
25-5-16 Judicial cognizance of parental abuses--Freeing child from parental dominion.
25-5-17 25-5-17, 25-5-18. Repealed by SL 1991, ch 211, §§ 7, 8
25-5-18.1 Parental duty to support child.
25-5-18.2 Parental duty to support certain grandchildren.
25-5-19 Emancipation by express agreement--Approval of circuit court.
25-5-20 25-5-20. Repealed by SL 1991, ch 211, § 10
25-5-21 Duty of emancipated child to parent.
25-5-22 25-5-22. Repealed by SL 1991, ch 211, § 11
25-5-23 Foster parents' liability to foster children.
25-5-23.1 Foster parents' liability for acts of foster child--Motor vehicle cases excepted--No costs to be assessed if child adjudicated delinquent or in need of supervision.
25-5-24 Emancipated minor defined.
25-5-25 Age of majority for certain purposes--Parent or guardian liability.
25-5-26 Petition for emancipation--Procedure.
25-5-27 Rescission of declaration of emancipation.
25-5-28 Declaration obtained by fraud voidable--Proceedings.
25-5-29 Person other than parent permitted to seek custody of child--Parent's presumptive right to custody--Rebuttal.
25-5-30 Circumstances suggesting serious detriment to child.
25-5-31 No right created on behalf of stepparent.
25-5-32 Parental rights need not be terminated if custody awarded to person other than parent.
25-5-33 Child support, parent's duty to provide for child when custody awarded to person other than parent.
25-5-34 Applicability of §§ 25-5-29 to 25-5-34.
25-5-35 Breastfeeding permitted in certain locations.
25-5-3. Presumption of parentage.
The husband and wife are presumed to be the parents of any child born to the wife during the marriage or within ten months after the dissolution of the marriage.
Source: SDC 1939, § 14.0301; SL 1991, ch 210, § 3; SL 1994, ch 194.
25-5-6. Parental control of child's property.
The parent, as such, has no control over the property of the child.
Source: SDC 1939, § 14.0318.
25-5-7. Parents equally entitled to custody and earnings of child born in wedlock.
Subject to the court's right to award custody of the child to either parent, considering the best interest of the child as to its temporal, mental, and moral welfare the father and mother of any minor child born in wedlock are equally entitled to the child's custody, service, and earnings.
Source: SDC 1939, § 14.0303; SL 1991, ch 210, § 6; SL 2008, ch 131, § 1.
25-5-7.1. Joint legal custody order--Factors for court's consideration--Joint physical custody.
In any custody dispute between parents, the court may order joint legal custody so that both parents retain full parental rights and responsibilities with respect to their child and so that both parents must confer on, and participate in, major decisions affecting the welfare of the child. In ordering joint legal custody, the court may consider the expressed desires of the parents and may grant to one party the ultimate responsibility over specific aspects of the child's welfare or may divide those aspects between the parties based on the best interest of the child. If it appears to the court to be in the best interest of the child, the court may order, or the parties may agree, how any such responsibility shall be divided. Such areas of responsibility may include the child's primary physical residence, child care, education, extracurricular activities, medical and dental care, religious instruction, the child's use of motor vehicles, and any other responsibilities which the court finds unique to a particular family or in the best interest of the child. If the court awards joint legal custody, it may also order joint physical custody in such proportions as are in the best interests of the child, notwithstanding the objection of either parent.
Source: SL 1989, ch 217, § 1; SL 2011, ch 131, § 1; SL 2012, ch 141, § 1.
25-5-7.2. Residential parent to make routine decisions concerning child.
During the time a child, over whom the court has ordered joint legal custody to both parents, resides with either parent, that parent shall decide all routine matters concerning the child.
Source: SL 1989, ch 217, § 2.
25-5-7.3. Parents to have equal access to records pertaining to child--Name and address of both parents to be listed.
Access to records and information pertaining to a minor child, including, but not limited to, medical, dental, orthodontia, optometric and similar health care, and school records shall be made equally available to both parents. Counseling, psychiatric, psychotherapy, and other records subject to confidentiality or privilege shall only be released in accordance with state and federal law; but, if available to one parent, shall be available to both. The parents shall make reasonable efforts to ensure that the name and address of the other parent is listed on all such records.
Source: SL 1989, ch 217, § 3; SL 2008, ch 129, § 1.
25-5-7.4. Written applications to enroll child in activity or program to provide name and address of other parent.
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 shall provide the name and address of the other parent on, or supplementary to, the application. The provisions of this section do not apply to any written application for any type of annuity or insurance.
Source: SL 2008, ch 129, § 2.
25-5-7.5. Access to records and application requirements not applicable to certain parents.
The provisions of §§ 25-5-7.3 and 25-5-7.4 do not apply in any case in which a court has:
(1) Terminated the rights of either parent; or
(2) Restrained either parent, by court order, from contact with the child.
Moreover, a court of competent jurisdiction may determine that the application of § 25-5-7.3 or 25-5-7.4, or both, is inappropriate under the facts and circumstances of any particular case.
Source: SL 2008, ch 129, § 3.
25-5-7.6. Parent sharing custody to foster other parent's relationship with child.
Each parent sharing joint legal custody of their child shall foster the other parent's relationship with the child.
Source: SL 2011, ch 131, § 2.
25-5-8. Father's rights not superior to mother's while separated.
The husband and father, as such, has no rights superior to those of the wife and mother in regard to the care, custody, education, and control of the children of the marriage, while such husband and wife live separate and apart from each other.
Source: SDC 1939, § 14.0305.
25-5-9. Habeas corpus to award child custody when parents separated without divorce--Rules of law governing.
When husband and wife live separate and apart from each other without being divorced, the circuit court or judge thereof, upon application of either, may grant a writ of habeas corpus to inquire into the custody of any minor unmarried child of the marriage, and may award the custody of such child to either for such time and under such regulations as the case may require. The decision of the court or judge must be guided by the rules provided by law for awarding custody of a minor or appointing guardians.
Source: SDC 1939, § 14.0305.
25-5-10. Custody and earnings of children born out of wedlock.
The mother of an unmarried minor born out of wedlock is entitled to its custody, services, and earnings subject to the court's right to award custody of the child to either parent, considering the best interests of the child as to its temporal, mental, and moral welfare.
Source: SDC 1939, § 14.0304; SL 1982, ch 192; SL 1991, ch 210, § 7.
25-5-10.1. Best interest of child not presumed--Change of custody.
Notwithstanding any initial entitlement to custody pursuant to § 25-5-10, there is no legal presumption that such custody is in the best interest of the child, nor is a change of circumstances required for a change of the initial custody as determined by § 25-5-10.
Source: SL 2008, ch 131, § 2.
25-5-11. Wages of minor payable to minor or conservator.
The wages of a minor employed in service may be paid to the minor or to the minor's conservator.
Source: SDC 1939, § 14.0319; SL 1983, ch 206; SL 1993, ch 213, § 113.
25-5-12. Relinquishment of child control and earnings--Abandonment by parent.
The parent, whether solvent or insolvent, may relinquish to the child the right of controlling him and receiving his earnings. Abandonment by the parent is presumptive evidence of such relinquishment.
Source: SDC 1939, § 14.0319.
25-5-13. Residence of child--Right to change--Procedure.
A parent entitled to the custody of a child has the right to change the child's residence, subject to the power of the circuit court to restrain a removal that would prejudice the rights or welfare of the child. A parent desiring to relocate a minor child shall follow the provisions of §§ 25-4A-17 to 25-4A-19, inclusive.
Source: SDC 1939, § 14.0306; SL 2020, ch 106, § 2.
25-5-14. Parent and child not answerable for act of other.
Except as provided by § 25-5-15, neither parent nor child is answerable as such, for the act of the other.
Source: SDC 1939, § 14.0309.
25-5-15. Parental liability for willful acts of child--Limitation of recovery--Motor vehicle cases excepted--Specific findings in disputed cases.
Any person, firm, association, private or public corporation, including the State of South Dakota and its political subdivisions, suffering damages to real, personal, or mixed property, or personal injury, through any malicious and willful act of a minor child under the age of eighteen years while residing with the child's parents, has a cause of action against and may recover from the parents of such child. In each case the amount of recovery against one or both of the parents is limited to actual damages of two thousand five hundred dollars and the taxable court costs, and does not apply to damages proximately caused through the operation of a motor vehicle by the minor child. If the issue is disputed, any determination that a parent is not responsible for the full amount of actual damages and costs authorized by this section shall be justified in a specific finding, in writing or on the record.
Source: SL 1957, ch 41; SDC Supp 1960, § 14.0309-1; SL 1979, ch 166; SL 1980, ch 188; SL 1993, ch 194; SL 2010, ch 136, § 1.
25-5-16. Judicial cognizance of parental abuses--Freeing child from parental dominion.
The abuse of parental authority is the subject of judicial cognizance in a civil action in the circuit court, brought by the child or by its relatives within the third degree, or by the officers of the poor where the child resides; and when the abuse is established, the child may be freed from the dominion of the parent and the duty of support and education enforced.
Source: SDC 1939, § 14.0307.
25-5-18.1. Parental duty to support child.
The parents of any child are under a legal duty to support their child in accordance with the provisions of § 25-7-6.1, until the child attains the age of eighteen, or until the child attains the age of nineteen if the child is a full-time student in a secondary school. If it is determined by the court that the child support obligation survives the death of the parent, the amount due may be modified, revoked, or commuted to a lump sum payment by the court, taking into consideration all factors deemed relevant, including the financial resources of the child and the other parent and the needs of the decedent's family.
Source: SL 1986, ch 218, § 68; SL 1989, ch 220, §§ 1, 19; SL 2001, ch 133, § 6.
25-5-18.2. Parental duty to support certain grandchildren.
The parents of a minor mother or minor father may be required to contribute to the support of their grandchild according to their financial means until they are no longer legally responsible to support the minor mother or minor father in accordance with § 25-5-18.1.
Source: SL 1995, ch 142.
25-5-19. Emancipation by express agreement--Approval of circuit court.
Emancipation is express when it is by agreement of both parents if living, and if not, the surviving parent and the child. Any such express agreement of emancipation shall be presented to the circuit court of the county in which the child resides for approval. The court shall issue a declaration of emancipation if it finds the emancipation would not be contrary to the child's best interest. The declaration of emancipation and a copy of the agreement shall be filed by the clerk of courts.
Source: SDC 1939, § 14.0308 (4); SL 1991, ch 211, § 9.
25-5-21. Duty of emancipated child to parent.
The legal duty of an emancipated child to his parent is the same as that of a child who has reached his majority.
Source: SDC 1939, § 14.0308 (4).
25-5-23. Foster parents' liability to foster children.
Foster parents shall be liable for personal injuries sustained by foster children only to the extent natural parents are liable to their children.
Source: SL 1980, ch 189.
25-5-23.1. Foster parents' liability for acts of foster child--Motor vehicle cases excepted--No costs to be assessed if child adjudicated delinquent or in need of supervision.
No foster parent is liable for the acts of his or her foster child. However, this section does not apply to any action based on agency or negligent entrustment of a motor vehicle. No costs or fees may be charged or assessed against a foster parent as a result of a foster child in their care being adjudicated under § 26-8B-6 or 26-8C-7.
Source: SL 2001, ch 131, § 1.
25-5-24. Emancipated minor defined.
Any person under the age of eighteen years who:
(1) Has entered into a valid marriage, whether or not such marriage was terminated by dissolution; or
(2) Is on active duty with any of the armed forces of the United States of America; or
(3) Has received a declaration of emancipation pursuant to § 25-5-26;
is an emancipated minor.
Source: SL 1991, ch 211, § 1.
25-5-25. Age of majority for certain purposes--Parent or guardian liability.
An emancipated minor shall be considered as being over the age of majority for the following purposes:
(1) For the purpose of consenting to medical, chiropractic, optometric, dental, or psychiatric care, without parental consent, knowledge or liability;
(2) For the purpose of his capacity to enter into a binding contract;
(3) For the purpose of his capacity to sue and be sued in his own name;
(4) For the purpose of his right to support by his parents;
(5) For purposes of the rights of his parents to his earnings, and to control him;
(6) For the purpose of establishing his own residence;
(7) For the purpose of buying or selling real property;
(8) For the purpose of ending all vicarious liability of the minor's parents or guardian for the minor's torts; and
(9) For the purpose of enrolling in any school or college.
Nothing in this section may be construed to relieve the minor's parents or guardian from any liability for the torts of an emancipated minor if the liability arises out of an agency relationship, out of the operation of a motor vehicle as provided in § 25-5-15 or some other principle of law other than the parent-child relationship.
Source: SL 1991, ch 211, § 2.
25-5-26. Petition for emancipation--Procedure.
A minor may petition the circuit court of the county in which he resides for a declaration of emancipation. The petition shall be verified and shall set forth with specificity all of the following:
(1) That he is at least sixteen years of age;
(2) That he willingly lives separate and apart from his parents or guardian with the consent or acquiescence of his parents or guardian;
(3) That he is managing his own financial affairs;
(4) That the source of his income is not derived from any activity declared to be a crime by the laws of the State of South Dakota or the laws of the United States.
Before the petition is heard, such notice as the court deems reasonable shall be given to the minor's parents, guardian, or other person entitled to the custody of the minor, or proof made to the court that their addresses are unknown, or that for other reasons such notice cannot be given. If a minor is a ward or dependent child of the state, notice shall be given to the appropriate state agency.
The court shall sustain the petition if it finds that the minor is a person that fulfills the requirements of this section and that emancipation would not be contrary to his best interest.
If the petition is sustained, the court shall forthwith issue a declaration of emancipation, which shall be filed by the clerk of court.
If the petition is denied, the minor may appeal to the Supreme Court.
If the petition is sustained, the parents or guardian may appeal to the Supreme Court if they have appeared in the proceeding and opposed the granting of the petition.
A declaration is conclusive evidence that the minor is emancipated.
Source: SL 1991, ch 211, § 3; SL 1993, ch 213, § 114.
25-5-27. Rescission of declaration of emancipation.
A minor declared emancipated under § 25-5-26 or 25-5-19 or his conservator may petition the circuit court of the county in which he resides to rescind the declaration.
Before the petition is heard, such notice as the court deems reasonable shall be given to the minor's parents or guardian or proof made to the court that their addresses are unknown, or that for other reasons such notice cannot be given. However, no liability may accrue to any parent or guardian not given actual notice, as a result of rescission of the declaration of emancipation, until such parent or guardian is given actual notice.
The court shall sustain the petition and rescind the declaration of emancipation if it finds that the minor is indigent and has no means of support.
If the petition is sustained, the court shall forthwith issue a court order rescinding the declaration of emancipation granted under § 25-5-26, which shall be filed by the clerk of court.
Rescission of the declaration of emancipation does not alter any contractual obligations or rights or any property rights or interests which arose during the period that the declaration was in effect.
Source: SL 1991, ch 211, § 4.
25-5-28. Declaration obtained by fraud voidable--Proceedings.
A declaration of emancipation obtained by fraud or by the withholding of material information is voidable. The voiding of any such declaration pursuant to this section does not alter any contractual obligations or rights or any property rights or interests which arose during the period that the declaration was in effect.
A proceeding under this section may be commenced by any person or by any public or private agency. Notice of the commencement of such a proceeding and of any order declaring the declaration of emancipation to be void shall be consistent with the requirements of § 25-5-27.
Source: SL 1991, ch 211, § 5.
25-5-29. Person other than parent permitted to seek custody of child--Parent's presumptive right to custody--Rebuttal.
Except for proceedings under chapter 26-7A, 26-8A, 26-8B, or 26-8C, the court may allow any person other than the parent of a child to intervene or petition a court of competent jurisdiction for custody or visitation of any child with whom he or she has served as a primary caretaker, has closely bonded as a parental figure, or has otherwise formed a significant and substantial relationship. It is presumed to be in the best interest of a child to be in the care, custody, and control of the child's parent, and the parent shall be afforded the constitutional protections as determined by the United States Supreme Court and the South Dakota Supreme Court. A parent's presumptive right to custody of his or her child may be rebutted by proof:
(1) That the parent has abandoned or persistently neglected the child;
(2) That the parent has forfeited or surrendered his or her parental rights over the child to any person other than the parent;
(3) That the parent has abdicated his or her parental rights and responsibilities; or
(4) That other extraordinary circumstances exist which, if custody is awarded to the parent, would result in serious detriment to the child.
Source: SL 2002, ch 126, § 1.
25-5-30. Circumstances suggesting serious detriment to child.
Serious detriment to a child may exist whenever there is proof of one or more of the following extraordinary circumstances:
(1) The likelihood of serious physical or emotional harm to the child if placed in the parent's custody;
(2) The extended, unjustifiable absence of parental custody;
(3) The provision of the child's physical, emotional, and other needs by persons other than the parent over a significant period of time;
(4) The existence of a bonded relationship between the child and the person other than the parent sufficient to cause significant emotional harm to the child in the event of a change in custody;
(5) The substantial enhancement of the child's well-being while under the care of a person other than the parent;
(6) The extent of the parent's delay in seeking to reacquire custody of the child;
(7) The demonstrated quality of the parent's commitment to raising the child;
(8) The likely degree of stability and security in the child's future with the parent;
(9) The extent to which the child's right to an education would be impaired while in the custody of the parent; or
(10) Any other extraordinary circumstance that would substantially and adversely impact the welfare of the child.
Source: SL 2002, ch 126, § 2.
25-5-31. No right created on behalf of stepparent.
Nothing in § 25-5-29 creates any right on behalf of a stepparent to seek custody or visitation with a stepchild who has lived with that stepparent merely because the stepparent was married to or living with the child's parent.
Source: SL 2002, ch 126, § 3.
25-5-32. Parental rights need not be terminated if custody awarded to person other than parent.
If a court determines that a person other than a parent should be awarded custody or visitation, the court need not terminate either parent's parental rights over the child. A judgment awarding to a person other than a parent custodial rights may award the parent visitation rights with the child.
Source: SL 2002, ch 126, § 4.
25-5-33. Child support, parent's duty to provide for child when custody awarded to person other than parent.
If a court awards a person other than a parent custodial rights to a child, the court may set child support in whatever amount it deems appropriate, and notwithstanding the provisions of any other statute to the contrary, may waive the parent's duty to provide monetary or other support for his or her child.
Source: SL 2002, ch 126, § 5.
25-5-34. Applicability of §§ 25-5-29 to 25-5-34.
It is the express legislative intent that §§ 25-5-29 to 25-5-34, inclusive, apply to all pending matters involving disputed custody of a child between a parent and a person other than a parent meeting the standing provisions of § 25-5-29, and all subsequent custody disputes involving a person other than a parent.
Source: SL 2002, ch 126, § 6.
25-5-35. Breastfeeding permitted in certain locations.
A mother may breastfeed her child in any location, public or private, where the mother and child are otherwise authorized to be present as long as the mother is in compliance with all other state and municipal laws. However, no municipality may outright ban breast feeding in public places.
Source: SL 2015, ch 145, § 1.
