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South Dakota's Passage of SB74 promoting Joint Physical Custody

The 2014 South Dakota legislature passed SB74, which has now been signed by Governor Dennis Daugaard and will become law on July 1, 2014.

This law will have a substantial impact on South Dakota families, but it is important to know what this bill will - and will not - do.  The answer to the question also depends upon several factors beyond those contained in the new legislation.

Perhaps the best place to start understanding SB74 is to review the legislation itself.  You can find a copy of the new law here.  What the bill does is establish a set of criteria for the Court to consider whenever a parent requests joint physical custody of a child.

It is equally important to understand the history of the law in South Dakota, as well as the history of previous attempts to enact a joint physical custody law.

Since before it was a state, South Dakota has had criteria for the determination of where to place children when a couple is no longer together.  That standard, called the "brightest beacon" is that the Court is always motivated to do what is in the "best interests of the child."  Courts will often comment that they don't care as much about what each parent desires, but that the judge will do whatever he or she feels is the best for the child.

In the early years of statehood, South Dakota had a standard that indicated that very young children belonged in the primary care of their mother.  This was called the "tender years" doctrine, and indicated that young children needed the nurturing of their mothers in order to develop in the best way possible.  There was also a presumption that older children should be in the primary care of their fathers, who would better prepare those children for work and careers.

Those standards have long-since been abandoned.  There is no more tender years doctrine; there is no more presumption that fathers are better at preparing children for careers and life's hard lessons as those children reach their teens.

South Dakota began developing a more sophisticated set of guidelines.  While the law simply states that the Court shall consider what is in the best interests of children as to their "temporal and mental and moral welfare" (SDCL 25-4-45) it also states that the Court may consider a child's preference if that child is of a sufficient age to form an intelligent preference, and further states, in that same law, that between parents, neither the husband nor the wife is given any preference.

These traditional factors were further fleshed out in a 1979 South Dakota Supreme Court opinion in the case of Fuerstenberg v. Fuerstenberg (the entire opinion can be found here).  It establishes several factors (and sub-factors) that Courts since that time are required to determine in trying to come to a conclusion as to the child's best interests.  Those include stability, fitness, separation of siblings, child's preference, harmful parental misconduct, and primary caretaker.  In addition, if there has been a prior custody decision (not an agreement, but a contested decision by a Court), the parent wishing further modification must show that there has been a "substantial change of circumstances" in order to get custody looked at again.  This is necessary in order to avoid a parent continually relitigating the same issue over and over in an effort to bankrupt the other parent.

However, nowhere in South Dakota law did the notion of "joint physical custody" appear.  Parents could agree to it, and some courts ordered it, but there was no definition or determination of whether it was right for any situation.  Some courts even decided that since joint physical custody was not firmly established in the law, that the judges were prohibited from enacting joint physical custody without the consent of both parents.

That changed, to a small degree, with a new law passed in 2012.  That law added a simple sentence to the custody laws that said, "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." (SDCL 25-5-7.1)

Prior attempts to add further clarification to joint physical custody were introduced and defeated in the legislature.  The primary reason those bills were defeated were because they all abandoned the notion of "best interests" as the controlling criterion.  These bills, introduced out of a belief that the judges of South Dakota were unfairly preferring mothers over father,s or denying joint physical custody requests, customarily started by saying that in all cases where joint legal custody was awarded, it is presumed that the parent would have joint physical custody as well.  They went on to define joint physical custody as spending equal time in both homes.  The bills further established a mechanism for undoing this "presumption of joint physical custody" but placed the entire burden on the parent who did not wish the child to spend equal time in both homes to have to bring that lawsuit forward.  Finally, these bills established a standard for the determination of those cases - that the parent who did not want joint physical custody had to show by "clear and convincing" evidence that joint physical custody was not in the best interests of the child.

This is a far cry from deciding what is best for a child on a case by case basis.  It says that what is best in each case is joint physical custody, and if you don't like it, it's your job to prove that joint physical custody is not in the best interests of the child.  Further, you have to prove it by some burden of evidence over and above the normal burden of proof in family law cases (which is a "preponderance" of the evidence, or, simply put, more likely true than not true).

These bills also had another devastating drawback.  They had no look-back provision to them.  In essence, no matter the history or circumstances, no matter how long a child had lived with one parent, the other could file the paperwork, enjoy the presumption of joint physical custody, and put the financial and evidentiary burden on the other parent to fight against this new law.  This would be true for a baby or a high school senior.  It would have changed the custodial arrangement of an overwhelming number of children in the State of South Dakota.

Finally, a compromise was worked out.  A law was drafted, based on the criteria from Iowa law, to add new considerations whenever joint physical custody is to be awarded. 

The important things about SB74 are:

1.  It does not abandon the "best interests of the child" standard, but rather, repeats that standard that should guide each case.

2.  It does not create a presumption of joint physical custody.

3.  It indicates clearly that these criteria, 14 in all, are to be considered in addition to the traditional factors for the determination of custody as set forth in our law and Fuerstenberg v. Fuerstenberg.

4.  It also states that the enactment of this law does not create an automatic "substantial change in circumstances" which would allow anyone to bring back their contested custody case for a brand new hearing. 

Judges will have to look at all these factors and see if they apply.  Judges will have to make findings and conclusions about each factor in each case, so we will know how judges are interpreting the various new provisions.  Lawyers will have to learn these new provisions and how they will interact with existing law and the particular facts of each case to determine whether joint physical custody is appropriate.

South Dakota Public Television held a discussion of SB74 and the history of the custody laws of the state of South Dakota in a program it calls "South Dakota Focus" on Thursday, March 27th, 2014.  I was proud to be invited to be on that panel discussion, along with representatives of the South Dakota Shared Parenting Coalition, and a therapist from Yankton who deals regularly in child custody and counseling issues.  It was an interesting and informative discussion, and may be viewed online by following this link:

I hope to add some frequently asked questions that will assist people in the decision about how this new law might impact their lives, their child's life, and their situation.  But for now, I want to throw out a couple of cautions:

1.  If you are the custodial parent of a child, this law does NOT automatically change every custody situation in the State of South Dakota and grant to the other parent an immediate right to have a 50/50 custody arrangement.  You do not need to agree just because the other parent says that they will now "automatically" be granted joint physical custody.  You should talk to a lawyer.

2.  If you are the non-custodial parent of a child, or someone who may be going through a separation or a divorce, do NOT be lured into litigation because a lawyer promised you that you would get joint physical custody of your child.  Look at the laws.  Look at the standards.  Look at the criteria.  That is what the Court is going to look at.  Custody lawsuits are not cheap, and the advice of a good lawyer, combined with your own knowledge, research, and understanding, will go a long way to deciding whether it is worth it to file such a lawsuit.