The Swier Law Firm Family Law FAQs

If the child is of a sufficient age to form an intelligent preference, a court may consider that preference in determining child custody. 

A child’s “primary caretaker” is determined by reviewing which parent invested the predominant time, care, and consistency in raising the child. This can be shown by (1) spending time with the child; (2) preparing meals; (3) playing; (4) attending to medical care; (5) choosing clothing; (6) , involvement in school; (7) attending the child’s extracurricular activities; (8) reading to the child; (9) preparing birthday parties; (10) knowing the pediatrician; (11) consistent disciplining; (12) arranging transportation; and (13) providing appropriate clothing, foods and toys. 

Some of the facts a court looks at to determine “stability” are: (1) the relationship and interaction of the child with the parents, step-parents, siblings and extended families; (2) the child’s adjustment to home, school and community; (3) the parent with whom the child has formed a closer attachment; and (4) continuity. 

Some of the facts a court looks at to determine “parental fitness” are: (1) parent’s mental and physical health; (2) parent’s ability to provide the child with protection, food, clothing, medical care, and other basic needs; (3) parent’s ability to give the child love, affection, guidance, education and to impart the family’s religion or creed; (4) parent’s willingness to maturely encourage and provide frequent and meaningful contact between the child and the other parent; (5) parent’s commitment to prepare the child for responsible adulthood, as well as to insure that the child experiences a fulfilling childhood; and (6) parent’s exemplary modeling so that the child witnesses firsthand what it means to be a good parent, a loving spouse, and a responsible citizen.  

Under a “shared parenting plan,” the parents agree that the minor child will reside no less than one hundred eighty nights per calendar year in each parent’s home, and that the parents will share the duties and responsibilities of parenting the children and the expenses of the children in proportion to their incomes. 

In any custody dispute between parents, a court may order “joint legal custody.” This arrangement allows both parents to maintain full parental rights and responsibilities. It also requires that both parents confer on, and participate in, major decisions affecting their child.

In ordering joint legal custody, a court may consider the parent’s desires and may provide to one parent the ultimate responsibility over specific aspects of the child’s welfare. A court may also divide these aspects between the parents based on the child’s best interests. If it appears to be in the child’s best interests, the court may order, or the parties may agree, how these responsibilities will be divided.

These areas of responsibility 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 a court finds unique to a particular family or in the child’s best interests. 

Yes. Whenever a divorce is granted, the court may, in its discretion or upon the request of either person, restore the spouse’s maiden name or the legal name used before the marriage to the spouse. 

A Qualified Domestic Relations Order (QDRO) is a judgment, decree or order for a retirement plan to pay child support, alimony or marital property rights to a spouse, former spouse, child or other dependent.

No. Fault is not to be taken into account when awarding property, except as it may be relevant to the acquisition of property during the marriage.

A South Dakota court divides property by considering the (1) length of the marriage; (2) value of the property owned by the spouses; (3) age of the spouses; (4) health of the spouses; (5) ability of the spouses to earn a living; (6) contribution of each spouse to accumulating the property; and (7) income-producing capacity of the property owned by the spouses.