Custody in South Dakota.
The starting point the law actually sets, what the judge has to weigh, and the deadlines that catch people out.
See a different stateSouth Dakota
for legal custody, physical custody, or time. SDCL 25-5-7.1 is permissive throughout: "In any custody dispute between parents, the court may order joint legal custody." And SDCL 25-4-45 states the neutrality rule directly: "As between parents adversely claiming the custody, neither parent may be given preference over the other in determining custody." That is a rule against favoring either parent — not a rule requiring an even split. Importantly, the state's default parenting guidelines carry no presumption either: SDCL 25-4A-11 says "Imposition of the standard guidelines creates no presumption as to who may be awarded custody at any hearing."
Use the state’s own words
South Dakota uses "custody" and "visitation," plus "joint legal custody" and "joint physical custody" (SDCL 25-5-7.1). You will also meet two terms that matter enormously in practice: the "South Dakota Parenting Guidelines" (the state's default parenting time schedule) and a "shared parenting plan."
How South Dakota decides
Decisions against where the child lives
SDCL 25-5-7.1 handles both in one section. On decisions: "the court may order joint legal custody so that both parents retain full parental rights and responsibilities with respect to their child and so that both parents must confer on, and participate in, major decisions affecting the welfare of the child." The court may divide specific areas of responsibility, which "may include the child's 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 which the court finds unique to a particular family." On residence, the same section closes with: "If the court awards joint legal custody, it may also order joint physical custody in such proportions as are in the best interests of the child, notwithstanding the objection of either parent." That last clause means a South Dakota judge can order shared physical custody over one parent's objection.
What the judge must weigh
South Dakota's statute contains no list of factors — this is one of the shortest best-interest standards in the country. SDCL 25-4-45 in full on this point: "In awarding the custody of a child, the court shall be guided by consideration of what appears to be for the best interests of the child in respect to the child's temporal and mental and moral welfare. If the child is of a sufficient age to form an intelligent preference, the court may consider that preference in determining the question. As between parents adversely claiming the custody, neither parent may be given preference over the other in determining custody." The specific considerations South Dakota judges apply come from Supreme Court decisions rather than the statute. Two statutory add-ons narrow the field: SDCL 25-4-45.1 provides that "Fault shall not be taken into account with regard to the awarding of property or the awarding of child custody, except as it may be relevant to… the fitness of either parent," and SDCL 25-4-45.5 requires the court to consider domestic abuse convictions and history (below).
What the child wants
No age is set. SDCL 25-4-45: "If the child is of a sufficient age to form an intelligent preference, the court may consider that preference in determining the question." Note that the verb is "may," not "shall" — even a mature child's preference is something the court is permitted to weigh, not required to follow.
Where there has been violence or abuse
SDCL 25-4-45.5 requires the court, in awarding custody involving a minor, to consider: a conviction of domestic abuse as defined in SDCL 25-10-1(1); a conviction of assault against a person as defined in SDCL 25-10-1(2), except against a relative by blood who does not live in the same household; or a history of domestic abuse. "The conviction or history of domestic abuse creates a rebuttable presumption that awarding custody to the abusive parent is not in the best interest of the minor. A history of domestic abuse may only be proven by greater convincing force of the evidence."
The paperwork and the people
The parenting plan
This is where South Dakota does something no other state in this group does. SDCL 25-4A-11: "Upon the filing of a summons and complaint for divorce or separate maintenance or any other custody action or proceeding, the plaintiff shall also file and serve upon the defendant a copy of the standard guidelines. The standard guidelines attached to the summons shall become an order of the court upon fulfillment of the requirements of service." So the South Dakota Parenting Guidelines become a binding court order automatically, the moment service is complete — before any hearing. The state judiciary confirms this in plain terms: "These are the default guidelines for the State of South Dakota. If both parties cannot reach an agreement on a specific parenting plan, these guidelines will become mandatory." The same statute adds a second automatic rule: "Any minor child of the marriage shall remain in the custody of the parent who has been the primary caregiver for the minor child for the majority of time in the twelve months preceding the filing of the summons and complaint, unless the parties agree otherwise." You can replace the guidelines with your own agreed plan, or ask the court to order something different, but until then the guidelines apply. The guidelines and the shared parenting plan forms are published by the South Dakota Unified Judicial System at https://ujs.sd.gov/self-help/family-law-help/shared-parenting-guidelines-plans/.
Mediation
Yes — South Dakota is the strongest "shall" in this group, with clear domestic-violence exemptions. SDCL 25-4-56: "In any custody or visitation dispute between parents, the court shall order mediation to assist the parties in formulating or modifying a plan, or in implementing a plan, for custody or visitation and shall allocate the cost of the mediation between the parties. However, mediation shall not be ordered if: (1) One of the parents has been convicted of domestic abuse as defined in subdivision 25-10-1(1); or (2) One of the parents has been convicted of assault against a person as defined in subdivision 25-10-1(2), except against any person related by consanguinity, but not living in the same household; or (3) One of the parents has a history of domestic abuse; or (4) Mediation is not readily available or the court determines that mediation is not appropriate based on the facts and circumstances of the case." As with the custody presumption, "A history of domestic abuse may only be proven by greater convincing force of the evidence."
If the court appoints someone to look into it
Two routes, both with the cost falling on the parents. SDCL 25-4-56 lets the court "direct that an investigation be conducted to assist the court in making a custody or visitation determination" and requires it to "allocate the costs of such investigation between the parties." SDCL 25-4-45.4 covers counsel for the child: if the court determines mediation under SDCL 25-4-56 is not feasible, it "may appoint counsel for any child involved in any divorce or custody proceeding, in which the child is alleged to be neglected or abused, or if a parent, guardian, or custodian request counsel be appointed… and if the court determines that it is in the best interest of the child." That counsel "shall be charged with representation of the child's best interests and may not be counsel for any other party," and "The court shall allocate the cost of the appointed counsel between the parents, guardian, or custodian of the child."
Moving away
What you must do before you move
SDCL 25-4A-17: "If an existing custody order or other enforceable agreement does not expressly govern the relocation of the principal residence of a child, a parent who intends to change his or her principal residence shall provide reasonable written notice by certified mail or admission of service to the other legal parent of the child. Reasonable notice is notice that is given at least forty-five days before relocation or a shorter period if reasonable under the specific facts giving rise to the relocation. Proof of the notice shall be filed with the court of record unless notice is waived by the court." Four exceptions mean no notice is required: the relocation moves the child closer to the noncustodial parent; the move is within the boundaries of the child's current school district; there is an existing valid protection order in favor of the child or the custodial parent against the noncustodial parent (unless that parent has a valid parenting time order entered after the protection order); or within the preceding twelve months the nonrelocating parent has been convicted of violating a protection order, criminal assault, child abuse, or other domestic violence with the child or the custodial parent as victim (again, unless a valid parenting time order came after the conviction). Note the first line: if your existing order already covers relocation, your order controls, not this statute.
Later on
Changing the order
The statute gives the court broad power without stating a test. SDCL 25-4-45: "the court may, before or after judgment, give such direction for the custody, care, and education of the children of the marriage as may seem necessary or proper, and may at any time vacate or modify the same." The specific showing South Dakota courts require before changing a custody order comes from Supreme Court decisions rather than from this section, and there is no statutory waiting period.
If you were never married
SDCL 25-5-10: "The mother of an unmarried minor born out of wedlock is entitled to its custody, services, and earnings subject to the court's right to award custody of the child to either parent, considering the best interests of the child as to its temporal, mental, and moral welfare." So the mother starts with custody by statute, but that is a starting point, not a ceiling — the court can award custody to either parent on a best-interests analysis. An unmarried father will need his paternity established before the court will make custody and visitation orders in his favor.
The thing that catches South Dakota parents completely off guard is that a parenting schedule becomes a court order before anyone sees a judge. Under SDCL 25-4A-11, the plaintiff must attach the South Dakota Parenting Guidelines to the summons, and "The standard guidelines attached to the summons shall become an order of the court upon fulfillment of the requirements of service." The same statute freezes the status quo: the child "shall remain in the custody of the parent who has been the primary caregiver for the minor child for the majority of time in the twelve months preceding the filing," unless you both agree otherwise. Read the guidelines the day you are served — they are your order until you replace them. The second surprise: unlike most states, South Dakota's best-interest statute gives judges no checklist at all, just "temporal and mental and moral welfare" and a rule that neither parent gets preference. Third, mediation here is not optional. SDCL 25-4-56 says the court "shall order mediation" in any custody or visitation dispute — with a hard exemption if there is a domestic abuse conviction or a proven history of domestic abuse, which you should raise early rather than waiting to be scheduled.
What we could not confirm
- We could not confirm from the statute what you must prove to change an existing custody order. SDCL 25-4-45 lets the court "at any time vacate or modify" custody but does not state the test; that standard comes from South Dakota Supreme Court decisions and is meaningfully harder to meet after a final custody order than before one. Ask a South Dakota attorney or your clerk of courts what showing your judge expects before you file.
Compare all fifty states
Where 50/50 really is the default, and the twenty-six states where nothing is presumed.
And the money side
How South Dakota calculates child support, and the overnight number that changes it.
The rest of what we have written about South Dakota. Every figure is quoted from South Dakota’s own statute or its courts’ own published schedule, and carries the date we last checked it.