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Legal Information: South Dakota

Custody

Laws current as of November 28, 2023

If the other parent doesn’t follow the custody order, what can I do?

Once the other parent is notified of the custody process and hearing, any decision or order of court is enforceable.1 If one of the parents does not follow the order, the other parent can ask the judge to enter an order to show cause why they should not be held in contempt of court.2 If the custodial parent refuses to follow the visitation schedule, the non-custodial parent can also file a motion for enforcement of visitation rights.3 In both cases the judge will schedule a hearing on the matter.

If the judge believes that one of the parents willfully violated or failed to obey the custody or visitation order, s/he can impose a punishment (sanctions) to punish the offender or to make him/her follow the order. The judge can order that the offending parent does one or more of the following:

  • provide make-up time with the child;
  • pay court costs and attorney’s fees associated with the violation;
  • pay a civil penalty up to $1,000;
  • participate in counseling or parent education classes; 
  • post money (a bond) or other security with the court that would not be returned if  the parent failed to obey the order moving forward; 
  • serve jail time of not more than three days; or
  • obey any other sanction that the judge believes is appropriate in the case.4

If there is a serious (grave) violation or multiple violations, the judge may change (modify) the existing custody or visitation order.4

1 SDCL § 25-4A-1
2 SDCL § 25-4A-2
3 SDCL § 25-4A-4.1
4 SDCL § 25-4A-5

If I don’t agree with the custody order, how can I get it changed?

In South Dakota, the standard parenting guidelines will set out the custody arrangement to be followed by the parents. You can object to the standard guidelines and the judge will order a hearing within thirty days. Considering the best interest of the child, the judge will then issue a temporary custody and visitation order.1

Once there is a final custody order in place, if there is a substantial change in circumstances from the time the custody order was issued, you can request a change (modification). The judge will hold a hearing to consider the best interest of the child as well as the other factors included the question How will the judge decide to grant joint physical custody? when deciding whether to grant the change requested.2

1 SDCL § 25-4A-13
2 SDCL § 25-4A-27

Can the non-custodial parent have access to the child’s records?

Both parents have equal access to records and information related to the child, including healthcare and school records. The law says that both parents should make reasonable efforts so that the name and address of the other parent is listed on these records.1 This is also the case when enrolling your child in any social, religious, or peer group activity.2

However, everything explained above does not apply in a case where a judge has:

  1. terminated the rights of one of the parents; 
  2. issued a court order that restrains one of the parents from contact with the child; or
  3. determined that it’s inappropriate under the circumstances in a particular case.3

1 SDCL § 25-5-7.3
2 SDCL § 25-5-7.4
3 SDCL § 25-5-7.5

What steps do I have to take if I am the custodial parent and I want to relocate out of state with my child?

If a custody order doesn’t say anything about changing the primary residence of your child, the parent that wants to move has to send a written notice to the other parent. This “reasonable written notice” can be done by certified mail or the other parent can admit in writing that they received it (admission of service).  “Reasonable” notice means that it is given at least 45 days before the move or a shorter period of time if it’s reasonable within the circumstances that are causing the move. Proof of this notice has to be filed with the court.1

The relocation notice has to include:

  • city, state, and telephone number of the new residence; 
  • purpose for moving;
  • why moving is in the best interest of the child; and
  • a proposed visitation plan for the non-relocating parent.2

If the other parent doesn’t agree with the move, s/he must request a hearing within 30 days of receiving the notice. The court will then hold a hearing considering the best interest of the child. If no objection to the move is filed, it will be assumed (presumed) that the non-custodial parent consents.3  

No relocation notice has to be given if one of the following is true:

  1. moving will bring your child closer to the other parent; 
  2. the move is within the limits of your child’s current school district;
  3. there is a valid restraining order protecting you or your child from the non-custodial parent; or
  4. in the last 12 months, the non-custodial parent has been convicted of violating a restraining order, criminal assault, child abuse, or another domestic violence crime and the victim was you or your child.3 

Note: The exceptions listed in #3 and #4 do not apply an order establishing parenting time was issued as part of the restraining order, after the restraining order, or after the criminal conviction.

1 SDCL § 25-4A-17
2 SDCL § 25-4A-18
3 SDCL § 25-4A-19
4 SDCL § 25-4A-17

If I move to a new state, can I transfer my child custody case there?

After a final custody order is issued, there may come a time when you and your children move to a different state. For information about how to request to transfer the custody case to a new state, please go to the Transferring a custody case to a different state section in our general Custody page. However, it’s important to keep in mind that you may likely first need to get permission from the court or from the other parent to move your children out of state. Please talk to a lawyer to make sure your plans to move don’t violate your custody order or your state’s parental kidnapping laws.