21.3.14 96th Legislative Session 393
Introduced by: Representative St. John
An Act to provide a rebuttable presumption in favor of joint physical custody of a minor child.
Be it enacted by the Legislature of the State of South Dakota:
Section 1. That § 25-4A-21 be AMENDED:
25-4A-21. Joint physical custody--Consideration upon application--Findings.
any custody dispute between parents, upon application Upon
the petition of
either parent ,
the court shall consider granting joint
the initial determination regarding physical
custody of a minor child,
there is a rebuttable presumption that equal or approximately equal
time spent between the child and each parent is in the best interest
of the minor child.
A presumption under this section may be rebutted by substantial, credible evidence, as referenced in § 19-19-301, and based on the factors set forth in § 25-4A-24.
shall consider the factors set forth in § 25-4A-24,
make written findings of fact and conclusions of law regarding the
of the minor
waived by both parties
unless the parents have stipulated to the terms of an agreement
resolving the petition.
Section 2. That § 25-4A-22 be AMENDED:
25-4A-22. Rebuttable presumption against joint physical custody.
court shall determine the appropriate physical care, custody, and
control of a minor child, in accordance with § 25-4A-21,
following the consideration of factors set forth in § 25-4-45.5.
A finding by
the court that a parent has a conviction
or history of
abuse or has an assault conviction as
defined in § 25-4-45.5,
rebuttable presumption that joint physical custody is not in the best
of the child.
Section 3. That § 25-4A-23 be AMENDED:
25-4A-23. Home study or custody evaluation--Mediation.
Prior to ruling on a
joint physical custody
the court may
a home study
a custody evaluation .
Prior to the court ruling on a joint physical custody petition,
either parent may request mediation pursuant to § 25-4-56. In
any case where the court orders the parties to participate in a home
study, custody evaluation, or custody mediation, the,
or mediation in accordance with § 25-4-56.
The court shall
allocate the costs of the
home study, custody evaluation, or mediation required under this
Section 4. That § 25-4A-24 be AMENDED:
25-4A-24. Factors for rebutting presumption favoring joint physical custody.
considering a contested request for The
presumption in favor of joint
physical custody ,
in addition to the traditional factors for determining the best
interests of a child, the court shall consider the following factors
under § 25-4A-21
may be rebutted upon the presentation of evidence pertaining to:
(1) Whether each parent is a suitable physical custodian for the child;
(2) Whether each parent has an appropriate dwelling to support physical custody of the child;
(3) Whether the psychological and
emotional needs and the development of the child will suffer due to
contact with ,
and attention from ,
if joint physical custody is not granted;
(4) Whether one parent has denied
without just cause,
opportunity for continuing contact with the other parent. Facts
supporting an application of the presumption in § 25-4-45.5
constitute just cause;
(5) Whether the parents can show mutual respect for and effectively communicate with each other regarding the child's needs. When considering this factor, the court shall include a determination of the degree to which the parents are in general agreement about their approach to daily child rearing matters;
(6) The extent to which both parents actively care for the child;
(7) Whether each parent can support the other parent's relationship with the child. When considering this factor, the court shall include a determination of conflict between the parents, as joint physical custody requires substantial and regular interaction between the parents on a myriad of issues;
joint physical custody arrangement is in accord with the child's
wishes or whether
the child has strong opposition to joint physical custody, taking
into consideration the child's age, maturity, and reason for the
(9) Whether a parent has intentionally alienated or interfered with the other parent's relationship with the child;
(10) Whether one or both parents are opposed to joint physical custody. A parent's opposition to joint physical custody is not determinative in itself, but only one factor for the court to consider;
(11) The geographic proximity of the parents;
(12) Whether the safety of the child, other children, or the other parent will be jeopardized by an award of joint physical custody;
(13) Whether a parent allows another person custody or control of, or unsupervised access to, a child after knowing the person is required to register or is on the sex offender registry as a sex offender under chapter 22-24B;
(14) Whether a parent has attempted to influence a custody determination by alleging, falsely or without good cause, that the child or the sibling of the child has been subjected to physical or sexual abuse or abuse and neglect, as set forth in § 25-4-45.8;
(15) Whether a parent is physically and mentally capable of providing temporal, mental, and moral wellness for the child;
(16) Whether a parent has the capacity and disposition to provide the child with protection, food, clothing, medical care, and other basic needs;
(17) Whether a parent is willing
to provide the
child love, affection, guidance, and education in order to impart the
family's religion or creed;
(18) Whether a parent is committed to prepare the child for responsible adulthood, as well as to ensure that the child experiences a fulfilling childhood;
(19) Whether a parent provides exemplary modeling so that the child witnesses firsthand what it means to be a good parent, a loving spouse, and a responsible citizen;
(20) Whether a parent provides a stable and consistent home environment including the relationship and interaction of the child with the parents, stepparents, siblings, and extended families;
(21) The extent of the child's
school, and community;
(22) Whether a break in
with whom the
child has formed a closer attachment would cause
to the break in continuity for the child; and
(23) Whether a parent is guilty of misconduct that may have a harmful effect on the child.
Section 5. That § 25-4A-25 be REPEALED.
25-4A-25. Parental agreement for joint physical custody.
Section 6. That § 25-4A-26 be REPEALED.
25-4A-26. No presumption of joint physical custody.
Catchlines are not law. (§ 2-16-13.1) Underscores indicate new language.
indicate deleted language.