WomensLaw serves and supports all survivors, no matter their sex or gender.

Legal Information: South Dakota

Custody

Laws current as of November 28, 2023

How will the judge decide whether to grant joint physical custody?

At the request of either parent, the judge will consider awarding joint physical custody.1 If you and the other parent agree on joint physical custody, the judge doesn’t need to consider the factors included below.2 However, if one parent does not agree to joint physical custody, the judge may consider the following factors to make his/her ruling:

  1. whether each of you is suited for physical custody of your child and has an appropriate home for the child;
  2. if your child will suffer psychologically, emotionally, or developmentally if s/he doesn’t have active contact and attention from you and the other parent through joint custody; 
  3. if one parent has denied the other parent the opportunity of continuing contact with your child without a good reason to do so, legally referred to as “just cause”;
  4. whether you and the other parent can communicate effectively with each other regarding your child and can show respect for each other; 
  5. the extent to which both parents actively care for the child;
  6. whether you and the other parent can support your child’s relationship with each other;
  7. considering your child’s age, maturity, and reasoning, what are your child’s wishes or feelings regarding joint physical custody;
  8. if you or the other parent has intentionally alienated or interfered with the other parent’s relationship with the child;
  9. if one of the parents doesn’t agree with joint custody;
  10. how close the parents live to each other;
  11. if the safety of you, your child who is the subject of the case, or your other children will be at risk if joint physical custody is awarded;
  12. if you or the other parent allows a registered sex offender to have custody or control over your child;
  13. if you or the other parent tried to influence the custody process by falsely or without reason alleging that your child or his/her sibling has been the victim of physical or sexual abuse or neglect;
  14. each parent’s physical and mental ability to provide mental and moral wellness for your child;
  15. the ability and readiness of the parent to protect your child and provide food, clothing, medical care, and other basic needs; 
  16. the ability and willingness of the parent to provide love, affection, guidance, and education in order to nurture the family’s religion or faith;
  17. if the parent is committed to prepare the child for responsible adulthood, as well as to ensure that s/he experiences a fulfilling childhood; 
  18. if the parent can be a good model for the child as to what it means to be a good parent, loving spouse, and a responsible citizen;
  19. whether a parent can provide a stable and consistent home environment, including the relationship and interaction of the child with the parents, step-parents, siblings, and extended family;
  20. how well adjusted your child is to the home, school, and community; 
  21. if a break in attachment with the parent to whom the child has form a closer bond would be harmful because of the break in continuity for the child; and
  22. if the parent is guilty of misconduct that might have a harmful effect on the child.3

There is not a presumption of joint physical custody, which means the judge will not automatically assume that it is the best option. The judge will decide based on the best interests of the child.4 Before deciding on joint custody, the judge can require a home study or custody evaluation for the parents. Either parent may also request mediation prior to the judge ruling on joint physical custody.5

1 SDCL § 25-4A-21
2 SDCL § 25-4A-25
3 SDCL § 25-4A-24
4 SDCL § 25-4A-26
5 SDCL § 25-4-45.3