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Is there a presumption under South Dakota law that custody of children in a divorce should be joint physical custody?

 On July 1, 2014, South Dakota passed the Shared Parenting Act, which made significant changes to the way joint custody in divorce and other custody matters is determined. There is still no presumption under this new law that joint physical custody of the children be awarded in all divorce and other Shared Parenting Conceptcustody cases. However, the law takes joint physical custody options seriously and recognizes its value in determining what is best for the children when setting a custody and parenting time arrangements.

Under the law before the Shared Parenting law went into effect, joint physical custody of children could only be awarded if the parents agreed to it. Under the new law, a judge must carefully review a request for joint custody by either party. The judge must consider 14 factors in deciding whether to grant a request for joint physical custody as well as the best interests of the child guidelines. A few of these 14 factors include:

  • Whether each parent is a suitable custodian parent for the child
  • Whether each parent has a satisfactory dwelling for the child if joint physical custody is awarded
  • Whether the child's emotional and psychological needs will suffer if joint physical custody is not granted
  • Whether the parents show respect toward each other and are able to communicate well regarding the child's needs and other child rearing matters

Can I File a Motion to Change My Child Custody Agreement to Joint Physical Custody?

In any decision regarding your child, it is best if your ex-spouse and you agree on your custody arrangement. If you both agree that you want joint physical custody of your child, you can file a new agreement allowing this with the court. However, if your spouse does not want joint physical custody and you are already divorced, your situation is different. You can only file a motion requesting joint physical custody if you can show the following:

  • You have the burden of proving a substantial change in circumstances.
  • The enactment of the new Shared Parenting Law is not sufficient to meet your burden unless there are other substantial changes in your circumstances.

If you have questions regarding whether to file a motion to request physical joint custody of your child or other family law questions, call our experienced family law attorneys to schedule a free consultation to get these questions answered.

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