South Dakota Child Custody Agreement
A parenting schedule is already running against your family from the moment service is complete, and a written agreement is how you replace it.
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Introduction
South Dakota is one of the few states where a parenting schedule is already in force before a judge has looked at your case. Under SDCL 25-4A-11 the party filing a divorce, separate maintenance, paternity or other custody action must file and serve the South Dakota Supreme Court's standard parenting guidelines along with the summons and complaint, and those guidelines become an order of the court upon fulfillment of the requirements of service. The same section keeps the child with whichever parent was the primary caregiver for the majority of the preceding twelve months, and it holds both of those defaults in place unless the parties agree, or the court orders otherwise. A plan therefore governs the family either way, and what the parents choose is whose plan it is. SDCL 25-4A-12 sets out the route: an agreement for visitation other than the standard guidelines must be in writing, signed by both parties and filed with the court, and it shall be approved by court order and replace the standard guidelines or any plan previously filed. Until that order is entered, the state's schedule is the one in effect.
Key Things to Know
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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.
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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.
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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.
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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.
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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.
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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.
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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.
Key decisions before you file
Before you file a Child Custody Agreement in South Dakota, a few decisions shape the document: which option to choose and what each one means. The Child Custody Agreement guide walks through them.
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South Dakota Requirements for Child Custody Agreement
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Frequently Asked Questions
Agreeing displaces defaults that are already operating. SDCL 25-4A-11 provides that the standard guidelines attached to the summons become an order of the court upon fulfillment of the requirements of service, that the child remains with the parent who was the primary caregiver for the majority of the prior twelve months unless the parties agree otherwise, and that the guidelines apply and continue in effect unless the parties agree, or the court orders otherwise. Agreement also switches off two mechanisms: under SDCL 25-4A-25 the court is not required to consider the SDCL 25-4A-24 factors where both parents agree to joint physical custody, and under SDCL 25-4A-13 a temporary order need not carry specific findings of fact and conclusions of law if the court confirms the agreement of the parties. What agreement does not do is create a presumption in your favor, and SDCL 25-4A-26 rules out any presumption of joint physical custody.
Yes, and for mediated agreements the statute states it outright. SDCL 25-4-61 provides that after the agreement is signed by the parties the mediator shall present the agreement to the court, and that the agreement is not binding upon the parties until approved by order of the court. The same section requires the mediator to advise the parties of their right to review the agreement with counsel before signing. For an agreement reached without a mediator, SDCL 25-4A-12 requires the plan to be in writing, signed by both parties and filed with the court, and to be approved by court order.
They are the standard schedule adopted by the South Dakota Supreme Court and codified as the Appendix to SDCL chapter 25-4A. SDCL 25-4A-11 requires the filing party to attach them to the summons in a divorce, separate maintenance, paternity or other custody action, and they become an order of the court upon fulfillment of the requirements of service. They apply to your case unless the parties agree, or the court orders otherwise. SDCL 25-4A-10 sets out what they must cover, including 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 varying by the child's age and circumstances.
No statute requires parents to draft or submit one, but a plan governs the family either way. If the parents do not replace the standard guidelines, the guidelines are the plan, because SDCL 25-4A-11 makes them an order on service. If the parents do want their own terms, SDCL 25-4A-12 requires the agreement to be in writing, signed by both parties and filed with the court, and it shall be approved by court order and replace the standard guidelines or any plan previously filed. So the practical question is not whether to have a plan but whose plan applies.
Not a general one. SDCL 25-4-45 gives the court the standard rather than a list: 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 child of sufficient age to form an intelligent preference, and it may not prefer one parent over the other because of the parent's sex. The section also lets the court vacate or modify custody provisions at any time. The only enumerated list in the code is the one at SDCL 25-4A-24, and it has a narrow trigger.
Only where joint physical custody is contested. SDCL 25-4A-24 opens by saying that 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 twenty-three listed factors. Two limits follow. The list has no application to a case that is not a contested joint physical custody request, and SDCL 25-4A-25 provides that if both parents agree to joint physical custody the court is not required to consider those factors at all. Describing South Dakota as a twenty-three factor state without that qualifier misstates what happens in an agreed case.
SDCL 25-4A-11 supplies the default: the child remains with whichever parent was the primary caregiver for the majority of the twelve months preceding the action, unless the parties agree otherwise. That default runs from service, before any hearing. SDCL 25-4A-13 then governs a temporary custody order, requiring specific findings of fact and conclusions of law, except if the court confirms the agreement of the parties. Parents who want a different interim arrangement have to say so in writing rather than rely on the case being resolved quickly.
SDCL 25-4A-17 applies only if an existing custody order or other enforceable agreement does not expressly govern the relocation of the child's principal residence, so parents who put a relocation clause in their own agreement displace the statute. Where it does apply, reasonable notice is notice given at least forty-five days before relocation, or a shorter period if reasonable under the specific facts giving rise to the relocation, and it must be written and served by certified mail or admission of service with proof filed with the court of record unless waived. SDCL 25-4A-18 prescribes the contents: the new address and telephone number if known, the purpose of relocating, why the relocation is in the child's best interest, and the relocating party's proposed visitation plan. Under SDCL 25-4A-19 the other parent has thirty days to seek a hearing, and if none is requested within thirty days the relocation is presumed to be consented to. Notice is not required in four situations, including a move that brings the child closer to the noncustodial parent or that stays within the child's current school district.
SDCL 25-4-56 directs the court to order mediation in a custody or visitation dispute, but the same section carves out cases where a parent has a conviction or history of domestic abuse as described in SDCL 25-4-45.5. Where mediation does happen, SDCL 25-4-61 controls what follows: the mediator reduces the agreement to writing, advises the parties of their right to review it with counsel before signing, and presents it to the court, and the agreement is not binding upon the parties until approved by order of the court. Mediation in South Dakota is a route to an order, not a way around one.
Two rebuttable presumptions stack. Under SDCL 25-4-45.5, 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 the section adds that a history of domestic abuse may only be proven by greater convincing force of the evidence. Under SDCL 25-4A-22, a court finding of a history of committing domestic abuse, or an assault conviction as defined in SDCL 25-4-45.5, creates a separate rebuttable presumption that joint physical custody is not in the child's best interests. Two knock-on effects matter to parents trying to agree: mediation is not ordered in those cases under SDCL 25-4-56, and SDCL 25-4A-17 removes the relocation notice duty in specified protection order and recent conviction situations.