CasewellThe law in plain words
Under SDCL 25-4-45, "As between parents adversely claiming the custody, neither parent may be given preference over the other in determining custody."
The same section tells the judge to follow the child's best interests. It names the child's "temporal and mental and moral welfare." In plain words, that means the child's daily needs, emotional health and upbringing.
Wondering who usually ends up with custody? Our page on the chances of getting full custody in South Dakota explains what the figures can and cannot show.
Legal custody and physical custody
South Dakota orders deal with two separate questions.
- Legal custody: who makes the major decisions, such as school, health care and religion.
- Joint legal custody: both parents keep full rights and must confer on major decisions, under SDCL 25-5-7.1.
- Split responsibilities: within joint legal custody, the court can give one parent the final say on specific areas, such as education.
- Routine choices: whichever parent the child is staying with handles everyday matters.
- Physical custody: how the child's time is divided between the two homes.
Both parents get equal access to school and medical records. Parents sharing joint legal custody must also foster the child's relationship with the other parent.
"Full custody" is not a term in the statutes. People usually mean sole legal custody plus primary physical custody.
Is South Dakota a 50/50 state?
No. South Dakota law sets no presumption of equal time or of joint physical custody.
- The statute: SDCL 25-4A-26 says nothing in the joint custody statutes presumes joint physical custody.
- Asking for it: if either parent applies, the court must consider joint physical custody. It must also write findings, unless both parents waive them.
- Over an objection: a court that orders joint legal custody may also order joint physical custody, even if a parent objects.
- By agreement: if both parents agree, the court does not have to run through the special factors.
Equal time is possible, but the evidence has to support it. Sole physical custody to one parent is also a common result.
The best-interest factors
The custody statute itself has no list of factors. The South Dakota Supreme Court filled the gap in Fuerstenberg v. Fuerstenberg (1999).
Judges may, but do not have to, weigh these Fuerstenberg factors:
- parental fitness, meaning each parent's ability to meet the child's needs
- stability of the child's home, school and relationships
- which parent has been the primary caretaker
- the child's preference, if the child is mature enough
- harmful parental misconduct
- separating siblings, which courts generally avoid
- a substantial change of circumstances, in later cases
The court restated this list in Roth v. Haag (2013). It called the child's best interests its "brightest beacon." Not every factor fits every case.
Joint physical custody: the SDCL 25-4A-24 factors
When one parent asks for joint physical custody and the other objects, SDCL 25-4A-24 adds 23 factors. They sit on top of the usual best-interest factors. In groups:
- Home and fitness: whether each parent is a suitable custodian with a suitable home. That includes the ability to provide food, clothing and medical care.
- The child's needs: whether the child would suffer without active contact with both parents. Adjustment to home, school and community counts too.
- Attachment: whether breaking the bond with the closer parent would harm the child.
- Cooperation: whether the parents respect each other, communicate and broadly agree on daily child rearing. The court must weigh the level of conflict.
- Blocking contact: whether a parent denied contact without good reason, or tried to turn the child against the other parent.
- Care and example: how actively each parent cares for the child, and the stability of each home.
- Wishes: the child's wishes or strong opposition, given age and maturity. A parent's opposition is one factor, not a veto.
- Distance and safety: how far apart the parents live, and any safety risk to the child or others.
- Specific red flags: letting a registered sex offender have access to the child, and false abuse claims made to gain an edge in the case.
Your child's preference
South Dakota sets no age at which a child chooses. Under SDCL 25-4-45, the judge may consider the preference of a child old enough to form an intelligent one.
- Maturity, not age: the question is whether the child can give a reasoned preference.
- Joint physical custody: the court weighs the child's wishes, or strong opposition, and the reasons behind them.
- Keeping children out of court: for good cause, a judge can exclude the child from a contested custody hearing.
A preference is one factor. The judge makes the final decision.
Mothers' and fathers' rights
Married mothers and fathers start equal. Under SDCL 25-5-7, both are equally entitled to custody of a child born during the marriage.
While married parents live apart, a father has no rights superior to the mother's. In a divorce, neither parent may be given preference.
A husband is presumed to be the father of a child born during the marriage. The same applies to a child born within 10 months after the marriage ends.
For unmarried parents, the starting point is different, as the next section explains.
If you were never married
An unmarried mother has custody at first. Under SDCL 25-5-10, she is entitled to custody, but the court can award custody to either parent.
- Starting custody only: SDCL 25-5-10.1 says her starting custody is not presumed to be best for the child.
- Changing it: a father asking for custody does not have to show a change of circumstances first.
- Paternity: a father needs paternity established, by a court order or a signed, notarized affidavit of paternity.
- Affidavit at birth: hospitals offer the affidavit before discharge. It creates a presumption, meaning the man is treated as the father unless shown otherwise.
- Challenging it: generally within 60 days, or sooner if a court or agency case about the child starts. Fraud, pressure or a serious mistake allows up to three years.
- Time limit: a paternity case can be brought any time before the child turns 18.
Once paternity is set, a court order covers custody and support. An unmarried father should also act early. Unless the mother names him, he may get no notice of an adoption without asserting paternity within 15 days of birth.
Domestic violence
Abuse changes the starting point. Under SDCL 25-4-45.5, a judge must consider a domestic abuse conviction, an assault conviction or a history of domestic abuse.
- Presumption: a domestic abuse conviction or history creates a rebuttable presumption against custody to the abusive parent. Rebuttable means the parent can try to overcome it.
- Standard: a history of abuse must be shown by "greater convincing force of the evidence," meaning more convincing than the other side's.
- What counts: the court may consider protection orders against a parent and arrest reports after domestic abuse calls.
- Joint physical custody: a history of abuse, or an assault conviction, also creates a presumption against joint physical custody.
- Mediation: it is not ordered where a parent has a domestic abuse conviction or history.
- Therapy: since 2025, courts presume reunification therapy is not in the child's interests where abuse is found.
The court also weighs false abuse reports made to influence custody. A child conceived through rape or incest triggers a separate presumption against custody.
Protection orders
A parent can ask the circuit court for a protection order under SDCL chapter 25-10. There is no filing fee.
- Who can file: includes a parent who has a child, or is expecting one, with the abuser.
- Emergency order: if the sworn statement shows immediate danger, a judge can grant a temporary order without the other parent present.
- How long that lasts: generally 30 days, until the full hearing.
- Hearing: usually within 30 days. The other parent must be personally served at least five days before.
- Custody: after the hearing, the order can award temporary custody or set temporary visits.
- How long: a final order lasts for a fixed period of up to five years.
- Parenting class: if a child lives with either party, the restrained person must take parenting instruction.
Since July 1, 2026, a petition dismissed without a hearing must be sealed.
Emergency and temporary orders
South Dakota builds a temporary order into custody actions. Under SDCL 25-4A-11, the parenting guidelines become an interim court order once the other parent is served.
- Where the child stays: for a child of the marriage, with the parent who gave most of the care in the 12 months before filing. Parents can agree otherwise.
- Unmarried parents: a different starting rule applies. An unmarried mother starts with custody under SDCL 25-5-10, though the court can award it to either parent.
- Temporary only: that arrangement creates no presumption about final custody.
- Objecting: if either parent objects, the court must hold a hearing within 30 days.
- The temporary order: it must reflect each parent's demonstrated participation in the child's life.
- Maximizing time: if time is not roughly equal, the judge must maximize each parent's time, consistent with that participation and the child's welfare.
For danger from abuse, a protection order is the fastest route to temporary custody. A South Dakota court can also act in an emergency to protect a child present in the state.
Moving with your child
Moving starts with notice. Under SDCL 25-4A-17, a parent planning to move the child's main home must notify the other parent in writing.
- Timing: at least 45 days before the move, or less if reasonable in the circumstances.
- How: by certified mail or admission of service, with a copy filed in court.
- What it says: the new address, the reason, why the move helps the child and a proposed visit plan.
- Objecting: the other parent has 30 days to ask for a hearing. Silence is treated as consent.
- The decision: if the move would substantially change parenting time, the judge applies the usual best-interest factors.
Notice is not needed if the move brings the child closer to the other parent. The same applies to moves within the same school district. Some protection order and abuse situations are also excepted.
These rules apply only where your order does not already govern moves. The court's relocation page has the notice forms.
Moving to a neighboring state? Its custody rules may differ. Read our guides for Iowa, Minnesota, Montana and Nebraska.
Changing custody
Either parent can ask the court to change custody or parenting time.
- After a contested hearing: the parent asking must show a substantial change in circumstances. Then the child's best interests decide.
- After an agreement: in Moulton v. Moulton (2017), that limit did not apply where custody was only agreed and never tried.
- Unmarried parents: a change from the mother's initial custody needs no change of circumstances.
- New laws alone: neither the 2014 joint custody statutes nor the 2026 guidelines justify a change by themselves.
If a parent willfully ignores the order, the court must impose sanctions. These can include make-up time, legal fees and a fine of up to $1,000. Aggravated or repeated violations can lead to a custody change.
Parenting guidelines, classes and mediation
The Supreme Court sets minimum parenting time guidelines for the whole state. A revised version, form UJS-302, took effect on July 1, 2026.
- Under age 5: short, frequent visits for babies, growing with age. Overnights can continue where both parents already share care.
- Age 5 and up, under 200 miles apart: alternate weekends, half of summer break and a midweek overnight if distance allows.
- More than 200 miles apart: a separate long-distance schedule applies.
- Holidays: a chart alternates holidays by even and odd years. Mother's Day goes to the mother and Father's Day to the father.
- Winter break: Christmas Eve and Christmas Day alternate, and the rest of the break is split in halves.
- Safety: the guidelines may not apply where there is family violence, substance abuse or a risk of flight.
Parents can agree on any written plan the court approves. If they cannot agree, the guidelines apply until the court orders otherwise.
Custody and parenting-time cases generally require a parenting class. Contested custody or visitation cases also go to mediation, unless an exception in the statute applies.
- Parenting class: both parents must finish a court-approved course within 60 days of service. The judge can waive it for good cause.
- Before the final order: a final decree generally waits until both parents have complied, unless excused.
- Mediation: the court must order mediation in custody disputes and split the cost. It is not ordered where there is domestic abuse.
- Home study or evaluation: before ruling on joint physical custody, the court may order one and divide the cost.
- Lawyer for the child: in some cases, the court can appoint counsel to represent the child's best interests.
- Parenting coordinator: the court can appoint one to help resolve ongoing disputes.
Under a detailed shared parenting plan of at least 180 nights a year in each home, a child support credit may apply.
Grandparents, other caregivers and an absent parent
A parent's right to custody is presumed to serve the child. Under SDCL 25-5-29, a non-parent who has acted as the child's caregiver can still ask for custody.
To win, they must overcome that presumption. That takes abandonment, persistent neglect, giving up parental duties or serious detriment to the child. SDCL 25-5-30 lists situations that may show serious detriment:
- Harm: a likelihood of serious physical or emotional harm with the parent
- Absence: an extended, unjustified absence of parental custody
- Others raising the child: someone else meeting the child's needs for a long time
- Bonds: a bond with the caregiver strong enough that a change would cause significant harm
- Delay and commitment: how long the parent waited to seek custody, and their commitment
No South Dakota statute we found ends a parent's rights after a set time away. Only a court can terminate rights. In an adoption, a judge may skip the consent of a parent who abandoned the child for six months or more.
How to file for custody in South Dakota
South Dakota must usually be the child's home state, meaning the child lived there for the six months before filing.
- Check paternity. If it is not established, contact the Department of Social Services first.
- Fill in the forms. These are the case filing statement (UJS-232), summons (UJS-181) and complaint (UJS-182).
- Attach the guidelines. Add a copy of the parenting guidelines (UJS-302) to the back of the summons.
- File with the clerk of courts and pay the fee, or ask for a fee waiver.
- Serve the other parent. Regular or certified mail is not proper service.
- File proof of service, such as the sheriff's return.
- Take the parenting class within 60 days of service.
The other parent has 30 days to answer. If you agree, file a signed stipulation with a financial statement and support calculation. The Unified Judicial System custody page has every form.
How much does it cost to file for custody in South Dakota?
Fees come from the court's filing checklist, SDCL 16-2-29 and the fee guide effective July 1, 2026.
| Filing | Fee |
|---|---|
| Custody, parenting time and support complaint | $72 |
| Divorce | $97 |
| Answer from the other parent | $25 |
| Motion to modify a final custody or visitation order | $50 filing fee |
| Protection order | Free |
These are the listed fees, last checked October 28, 2026. Confirm them with the clerk before filing. If you cannot afford them, file a Motion to Waive Filing Fee (UJS-022). Mediation, evaluations and the parenting class cost extra.
What changed recently
- July 1, 2026: revised statewide parenting guidelines took effect. They describe overnights with babies as bond-building when both parents provide routine.
- July 1, 2026: a protection order petition dismissed without a hearing must be sealed. Petitions found baseless and harassing must be sealed too.
- July 1, 2026: lawmakers repealed the probation provisions for contempt of a custody or visitation order.
- July 1, 2025: courts gained power to order family or reunification therapy. It is presumed wrong where a parent or child suffered domestic abuse.
- July 1, 2025: lawmakers revised the rules on an unmarried father's rights in adoption cases.
Core statutes such as SDCL 25-4-45 and 25-4A-24 were last amended before 2024. Last checked October 28, 2026. Laws can change, so check before you rely on this.
Building the record
South Dakota judges weigh each parent's demonstrated part in the child's life, the child's stability and any safety concerns. Those questions turn on dates and details.
Note each exchange, school task and doctor visit as it happens. Casewell keeps those notes and the messages behind them together, so a lawyer can read a clear timeline.
Before you record a call or a handover, check whether you can record your co-parent in South Dakota.
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Is South Dakota a 50/50 custody state?
No. South Dakota law creates no presumption of joint physical custody or equal time. A judge can order equal time when it serves the child.
Does an unwed mother get full custody in South Dakota?
At first, yes. The law gives an unmarried mother custody, but the court can award custody to either parent. Her starting custody gets no presumption in court.
What rights do fathers have in South Dakota?
The same as mothers in a custody case. Neither parent may be given preference, and an unmarried father can seek custody once paternity is established.
How long does a father have to be absent to lose his rights in South Dakota?
South Dakota sets no period that ends a parent's rights automatically. Only a court can terminate them. Six months of abandonment can let a judge skip that parent's consent to an adoption.
At what age can a child choose which parent to live with in South Dakota?
South Dakota has no fixed age. A judge may consider the preference of a child old enough to form an intelligent one.
How much does it cost to file for custody in South Dakota?
The court's checklist lists $72 for a custody complaint, and the fee guide lists $97 for a divorce. Confirm with the clerk. A fee waiver is available.
Sources
This page summarizes South Dakota's Codified Laws, the South Dakota Parenting Guidelines, 2025 and 2026 session laws and Supreme Court decisions, as of October 2026. It explains the law in general terms and is not legal advice.
- SDCL 25-4-45 — custody in divorce, child's preference checked
- SDCL 25-4A-24 — joint physical custody factors checked
- SDCL 25-5-10 — custody of a child born to unmarried parents checked
- SDCL 25-4-45.5 — domestic abuse presumption checked
- SDCL 25-4A-17 — notice before relocating a child checked
- SDCL 25-5-30 — serious detriment to a child checked
- South Dakota Parenting Guidelines (UJS-302), effective July 1, 2026 checked
- Roth v. Haag, 2013 S.D. 48 checked
- Moulton v. Moulton, 2017 S.D. 73 checked
- South Dakota UJS — child custody, parenting time and support forms checked