South Dakota Child Custody Agreement

Introduction

Key Things to Know

1. 1

   A schedule applies whether or not you agree. SDCL 25-4A-11 requires the standard guidelines to be attached to the summons, and they become an order of the court upon fulfillment of the requirements of service. They continue in effect unless the parties agree, or the court orders otherwise, so a written agreement is not the start of the schedule in South Dakota. It is the replacement of one that already exists.

2. 2

   Agreeing switches off two specific mechanisms. Under SDCL 25-4A-25, if both parents agree to joint physical custody the court is not required to consider the factors set out in SDCL 25-4A-24. Under SDCL 25-4A-13, a temporary custody order must contain specific findings of fact and conclusions of law except if the court confirms the agreement of the parties. Both are reductions in what the judge must work through, not changes to the standard the judge applies.

3. 3

   Agreeing does not create a presumption. No South Dakota statute gives an agreed arrangement extra weight, and SDCL 25-4A-26 says that nothing in the joint physical custody sections creates a presumption that joint physical custody is in a child's best interest. Reading a 50/50 split into the law because both parents proposed it is a mistake the statute forecloses.

4. 4

   Court approval is the operative act, and South Dakota says so in plain terms. SDCL 25-4A-12 requires an agreed plan to be approved by court order, and for a mediated agreement SDCL 25-4-61 provides that the agreement is not binding upon the parties until approved by order of the court. Once an order exists it is enforceable by contempt after notice and hearing under SDCL 25-4A-1, and SDCL 25-4A-5 requires the court to impose sanctions for a wilful violation, including make-up parenting time and costs and attorney fees. Approval carries its own precondition: SDCL 25-4A-32 requires each party to complete a court approved parenting education course within sixty days of service, and no final decree or order is entered until both parties certify completion.

5. 5

   South Dakota kept the ordinary vocabulary. Chapter 25-4A is headed Custody and Visitation Rights, and the chapter uses custody, visitation and parenting time alongside one another rather than substituting one for the others. There is no parenting plan or parental responsibilities relabelling here, so generic joint and sole, legal and physical custody language reads correctly in a South Dakota filing. One term does not travel: the codified Appendix to chapter 25-4A states that the guidelines do not address shared parenting, which in South Dakota is a separate concept.

6. 6

   There is no general list of best interest factors. SDCL 25-4-45 gives the court the standard rather than a checklist: it is guided by what appears to be for the best interests of the child in respect to the child's temporal and mental and moral welfare, it may consider the preference of a sufficiently mature child, and it may not prefer one parent over the other on the basis of the parent's sex. The twenty-three factors at SDCL 25-4A-24 apply only in considering a contested request for joint physical custody, and they sit on top of the general standard rather than replacing it.

7. 7

   Domestic violence changes the analysis, and South Dakota handles it with two stacked presumptions. SDCL 25-4-45.5 provides that a conviction of domestic abuse, a conviction of assault, or a history of domestic abuse creates a rebuttable presumption that awarding custody to the abusive parent is not in the best interest of the minor, and that a history of domestic abuse may only be proven by greater convincing force of the evidence. SDCL 25-4A-22 adds a separate rebuttable presumption that joint physical custody is not in the child's best interests where the court finds a history of committing domestic abuse, or an assault conviction as defined in SDCL 25-4-45.5. If there has been abuse or a protection order, this is a situation to raise with a lawyer rather than settle on a form.

South Dakota Requirements for Child Custody Agreement

• Standard Guidelines Become an Order on Service, SDCL 25-4A-11

  The filing party must attach the South Dakota Supreme Court standard parenting guidelines to the summons and complaint, and they become an order of the court upon fulfillment of the requirements of service. The child remains with the parent who was primary caregiver for the majority of the prior twelve months, and the guidelines continue in effect, unless the parties agree, or the court orders otherwise. Draft the agreement as a replacement for a schedule that is already running.

• Form and Approval of an Agreed Plan, SDCL 25-4A-12

  Any agreement by the parties for visitation other than the standard guidelines must be in writing, signed by both parties and filed with the court. It shall be approved by court order and replace the standard guidelines or any plan previously filed. Unsigned or unfiled terms leave the guidelines in place.

• Required Coverage of a Parenting Time Schedule, SDCL 25-4A-10

  The statute directs that the standard guidelines address the frequency and time for noncustodial parenting time, the hours or days of that time, definitions for weekends, holidays, birthdays and other special occasions, time periods for summer parenting time, and treatment that varies with the child's age and circumstances. A replacement schedule should cover the same ground so nothing is left to the guidelines by default.

• Decision-Making Responsibilities, SDCL 25-5-7.1

  The responsibilities that may be allocated are 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 unique to a particular family. Allocate each one expressly rather than assigning legal custody as a single undivided block.

• Agreement to Joint Physical Custody, SDCL 25-4A-25 and 25-4A-26

  If both parents agree to joint physical custody the court is not required to consider the factors set out in SDCL 25-4A-24. SDCL 25-4A-26 provides that nothing in those sections creates a presumption that joint physical custody is in a child's best interest, so the agreement should state the arrangement rather than rely on any default.

• Findings on a Temporary Order, SDCL 25-4A-13

  A temporary custody order must contain specific findings of fact and conclusions of law, except if the court confirms the agreement of the parties. An interim arrangement recorded in writing is therefore worth including where the case will not be resolved quickly.

• Mediated Agreements Are Not Binding Until Approved, SDCL 25-4-61

  After the agreement is signed the mediator presents it to the court, and the agreement is not binding upon the parties until approved by order of the court. The mediator must also advise the parties of their right to review the agreement with counsel before signing. Do not treat a signed mediation memorandum as an enforceable arrangement.

• Enforcement and Sanctions, SDCL 25-4A-1 and 25-4A-5

  A decree or order relating to custody or visitation is enforceable by contempt after notice and hearing, and the court is required to impose sanctions for a wilful failure to comply, including make-up parenting time and costs and attorney fees. Enforcement runs on the order, which is why approval matters.

• Relocation Notice, SDCL 25-4A-17, 25-4A-18 and 25-4A-19

  The notice regime applies only if an existing custody order or other enforceable agreement does not expressly govern relocation of the child's principal residence, so a relocation clause in the agreement displaces it. Otherwise reasonable notice is at least forty-five days, or a shorter period if reasonable under the specific facts, the notice contents are prescribed, and the other parent has thirty days to seek a hearing before consent is presumed.

• Parenting Education Course, SDCL 25-4A-32

  Each party in a custody or parenting time action must complete a court approved parenting education course within sixty days of service, and no final decree or order is entered until both parties certify completion. Build the deadline into the timetable for getting the agreement approved.