South Dakota Child Custody Laws for Unmarried Parents

South Dakota child custody laws for unmarried parents award custody of a child born to parents who are not married to each other to the mother. The courts may award custody to either parent, but the unmarried father of a child may only gain custody if he goes to court.

An unmarried father would have to prove both that he has a strong parental bond with the child and that the mother is unfit in order to gain custody of the child. A local attorney in South Dakota would be able to provide more information.

There are two aspects to child custody: legal custody and physical custody. Legal custody is the right to make decisions about the child’s upbringing. This would include decisions about such issues as the child’s education, religion, and medical care.

Having legal custody gives a parent the right to make such decisions as where a child goes to school, what medical care the child receives, and whether the child is raised in a particular religious faith, among other issues.

Physical custody is where the child lives. A parent with primary or sole physical custody is the “custodial parent.” The other parent is referred to as the “noncustodial parent.”

In South Dakota, a court usually grants a noncustodial parent regular visits, including weeknights, alternating weekends, and school and summer holidays. Parents may have joint physical custody, where the child spends roughly equal time with each parent. Or one parent may be awarded sole physical custody of the child.

Can an Unmarried Father Take a Child from the Mother?

The courts do have the authority to give custody to either parent, but the unmarried father of a child may only gain custody through court action. In South Dakota, to gain custody, an unmarried father would have to prove both the existence of his own strong parental bond with the child and a significant failure on the mother’s part to meet her parental obligations.

The mother would have to have neglected or abandoned the child or have engaged in physical abuse.

Even if a father is unlikely to win physical custody, he may be able to maintain some parental rights. The courts may still grant visitation or other such rights even after granting custody to a non-parent.

Still, an unmarried father may certainly petition a court for custody. However, to gain custody, whether sole or shared, a better approach for a father who is not married to his child’s mother might be to negotiate a parenting plan with the child’s mother.

What Is Likely to Happen if There Is a Custody Battle Between Unmarried Parents?

South Dakota law requires that courts make child custody decisions on the basis of the child’s best interests standard. This same standard also applies in cases in which the parents are not married to each other.

A South Dakota court assesses each parent’s fitness to parent. A court may deny custody to a parent that it believes to be unfit or even to a parent who is fit if it thinks that would serve the best interests of the child.

The courts look at several factors, including the following:

• If the child is old enough and mature enough, the court would listen to the child’s preferences and take them into consideration;
• The preferences of the parents regarding custody;
• How willing each parent is to work cooperatively with the child and the other parent;
• Whether there is a history on the part of either parent of domestic violence, child abuse, neglect, or substance abuse;
• The mental health of everyone involved in the case;
• The physical health of everyone involved in the case;
• The child’s existing relationships with their parents, any siblings, and other members of the extended family; South Dakota courts prefer to keep siblings together;
• Which parent is best able to serve as a role model and raise the child to be a responsible adult;
• The results of any investigation made to determine the nature of care and welfare of the children.

Other factors may play a role in some cases as well. In South Dakota, if either parent requests joint physical custody, a judge must at least consider it as an option. If the parents are not able to agree on joint custody, a judge must decide what would be in the child’s best interests after considering several factors including those noted above.

What Are Some Other Issues That Unmarried Parents May Experience?

If the unmarried mother were to abandon their child or neglect or abuse the child, then she might lose primary custody to the father. Again, however, this assumes that the unmarried father has established his paternity in a legally acceptable way. If his name is on the birth certificate, that would be sufficient.

Unmarried parents also have the same right as married parents to work out their own parenting arrangements. This should be put in writing and should state how the parents plan to manage legal and physical custody of their child, visitation, and all the other legal issues involved in the care of their child. A good parenting plan would include a process for the parents to use if they decide to share legal custody and make decisions collaboratively.

With respect to legal custody, the plan might provide that one parent or the other would have the final say regarding decisions if the parents cannot agree. It might also include a process for modifying the arrangement if necessary, e.g., if one parent wants to move out of the state.

Of course, a complete parenting plan would also need to include an agreement about child support and how the parents would pay all of the costs associated with child-rearing. It would also state how the plan regarding finances might be changed.

A legal consultation with a South Dakota attorney would be able to help an unmarried couple negotiate a parenting plan. Mediation might also help unmarried parents come up with a plan that works best for them.

The main goal is for the parents to agree on all the terms of any agreement. They would then submit their plan to a court. The court would review the plan. If the court believes that the best interests of the child are served by the plan, it would put it in a court order. The court would then enforce the order if either parent were to violate its terms.

Do I Need an Attorney for Child Custody Between Unmarried Parents?

If you are an unmarried parent and need guidance about getting the custody arrangement you prefer, you want to talk to a South Dakota child custody lawyer. LegalMatch.com can connect you in a convenient way to a lawyer who can protect your rights. Your lawyer can review the facts of your situation and guide you to the best path to the arrangement you want. If the mother of your child is willing, your lawyer would be able to help negotiate a parenting arrangement with your child’s mother. You are most likely to be successful in getting the plan that works best for you if you have a lawyer’s representation.