South Dakota's "Shared Parenting Law" will go into effect on July 1, 2014. The new law does not establish a presumption of shared parenting and the court will still have the final say in determining custody. The law does however, encourage the use of shared parenting in divorces.
Joint physical custody of a minor child shall be considered by the court, upon application of either parent in any custody dispute. This is a significant change from the prior law which required the parents to agree in order to have "shared parenting" ordered.
If a party is filing a modification of custody, that party still has the burden of proving a substantial change in circumstances. The fact that this law has changed is not enough to meet that burden without other substantial changes.
14 Considerations Courts Make in Shared Parenting Cases
In addition to the traditional factors a court considers when determining the best interests of the child, a court must also consider these factors in shared parenting cases:
- Whether each parent is a suitable physical custodian for the child;
- Whether each parent has an appropriate dwelling to support physical custody of the child;
- Whether the psychological and emotional needs and the development of the child will suffer due to lack of active contact with both parents, if joint physical care is not granted;
- Whether one parent has denied, without just cause, the child the opportunity for continuing contact with the other parent;
- Whether the parents show mutual respect for and effectively communicate with each other regarding the child’s needs. The court will include a determination of the degree to which the parents are in general agreement about their daily child rearing matters;
- The extent to which both parties actively care for the child;
- Whether each parent can support the other parent’s relationship with the child;
- Whether a 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 objection;
- Whether the parent has intentionally alienated or interfered with the other parent’s relationship with the child;
- Whether one or both parents are opposed to joint physical custody;
- The geographic proximity of the parents;
- Whether the safety of the child, other children, or the other parent will be jeopardized by an award of joint physical custody;
- 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; and
- Whether a parent has attempted to influence a custody determination by alleging falsely or without just good cause, that the child or the sibling of the child has been subjected to physical or sexual abuse and neglect.
