When a divorcing couple has a disagreement about child custody, South Dakota judges are advised to make “balanced and methodical” determinations about the arrangement that is in the child’s best interests.
It is necessary for the court to evaluate the temporal, mental, and moral welfare of a child while determining what is in the best interests of the child in a custody dispute.
Case law Fuerstenberg v. Fuerstenberg, 1999 SD 35, states that courts may take into account the following factors:
- Which parent is better equipped to provide for the child’s temporal, mental and moral welfare;
- Who can provide a stable and consistent home environment;
- Who is more committed and involved in parenting the child;
- If the child is of a sufficient age to form an intelligent preference, the court may consider that preference;
- Where there is no evidence that a parent’s marital misconduct has a harmful effect on a child, it should not be taken into account in awarding custody;
- Siblings should not be separated absent compelling circumstances
South Dakota law promotes joint custody between parents, takes into account the preferences of children who are of legal age to make their own decisions, and does not favor either the mother or the father (as used to be the case).
Courts that make custody determinations may also alter or vacate their orders at any moment, providing for continuing supervision of a child and his or her parents.
Joint Custody
In addition to the standard grounds for evaluating a child’s best interests, the court shall consider the following factors when deciding a contested request for joint physical custody: SD Codified L § 25-4A-24
- Whether each parent is a suitable physical custodian for the child;
- Whether each parent has an appropriate dwelling to support physical custody of the child;
- 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;
- Whether one parent has denied, without just cause, the child the opportunity for continuing contact with the other parent;
- Whether the parents can show mutual respect for and effectively communicate with each other regarding the child’s needs;
- The extent to which both parents actively care for the child;
- Whether each parent can support the other parent’s relationship with the child;
- 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;
- Whether a parent has intentionally alienated or interfered with the other parent’s relationship with the child;
- Whether one or both parents are opposed to joint physical custody;
- The geographic proximity of the parents;
- Whether the safety of the child, other children, or the other parent will be jeopardized by an award of joint physical custody;
- 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;
- 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;
- Whether a parent is physically and mentally capable of providing temporal, mental, and moral wellness for the child;
- Whether a parent has the capacity and disposition to provide the child with protection, food, clothing, medical care, and other basic needs;
- 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;
- Whether a parent is committed to prepare the child for responsible adulthood, as well as to ensure that the child experiences a fulfilling childhood;
- 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;
- 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;
- The extent of the child’s adjustment in regards to home, school, and community;
- 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
- Whether a parent is guilty of misconduct that may have a harmful effect on the child.
A court finding that a parent has a history of domestic abuse or an assault conviction establishes a rebuttable presumption that joint physical custody is not in the child’s best interests. (See SD Codified L § 25-4A-22)