An Act to provide a rebuttable presumption in favor of joint physical custody of a minor child.
Be it enacted by the Legislature of the State of South Dakota:
Section 1. That 25-4A-21 be AMENDED:
25-4A-21.
In
any custody dispute between parents, upon applicationUpon
the petition of
either parent,
the court shall consider granting joint
for the initial determination regarding
physical custody of a minor child,
there is a rebuttable presumption that equal or approximately equal
time spent between the child and each parent is in the best interest
of the minor child. This presumption may be rebutted by a
preponderance of evidence showing that joint physical custody is not
in the best interest of the child based on the factors set forth in
25-4A-24.
The court
shall consider the factors set forth in 25-4A-24,
and shall
make written findings of fact and conclusions of law regarding the
best
interests
interest of the
minor child,
unless waived by both parties
in accordance with 25-4A-24,
unless the parents have stipulated to the terms of an agreement
resolving the petition.
Section 2. That 25-4A-22 be AMENDED:
25-4A-22.
The
court shall determine the appropriate physical care, custody, and
control of a minor child, in accordance with 25-4A-21,
following the consideration of factors set forth in 25-4-45.5.
A finding by
the court that a parent has a
conviction or a
history of
committing
domestic abuse
or has an assault conviction as defined in 25-4-45.5,
creates a rebuttable presumption that joint physical custody is not
in the best interests
interest
of the child.
Section 3. That 25-4A-23 be AMENDED:
25-4A-23.
Prior to ruling on
a
petition for
joint physical custody
petition
under 25-4A-21,
the court may require
that the
parties to
parents
participate in a home study or
a,
custody evaluation.
Prior to the court ruling on a joint physical custody petition,
either parent may request mediation pursuant to 25-4-56.
In
any case where the court orders the parties to participate in a home
study, custody evaluation, or custody mediation, the,
or mediation in accordance with 25-4-56.
The court shall
allocate the costs of
the same
any home study, custody evaluation, or mediation required under this
section between
the
parties
parents.
Section 4. That 25-4A-24 be AMENDED:
25-4A-24.
In
considering a contested request for
The presumption in favor of
joint physical custody,
in addition to the traditional factors for determining the best
interests of a child, the court shall consider the following factors
under 25-4A-21
may be rebutted upon a presentation of evidence pertaining to:
(1) Whether each parent is a suitable physical custodian for the child;
(2) Whether each parent has an appropriate dwelling to support physical custody of the child;
(3) Whether the psychological and emotional needs and the development of the child will suffer due to lack of active contact with, and attention from, both parents if joint physical custody is not granted;
(4) Whether one parent has denied
the child,
without just cause,
the child
the opportunity for continuing contact with the other parent. Facts
supporting an application of the presumption in 25-4-45.5
constitute just cause;
(5) Whether the parents can show mutual respect for and effectively communicate with each other regarding the child's needs. When considering this factor, the court shall include a determination of the degree to which the parents are in general agreement about their approach to daily child rearing matters;
(6) The extent to which both parents actively care for the child;
(7) Whether each parent can support the other parent's relationship with the child. When considering this factor, the court shall include a determination of conflict between the parents, as joint physical custody requires substantial and regular interaction between the parents on a myriad of issues;
(8) Whether the 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;
(9) Whether a parent has intentionally alienated or interfered with the other parent's relationship with the child;
(10) Whether one or both parents are opposed to joint physical custody. A parent's opposition to joint physical custody is not determinative in itself, but only one factor for the court to consider;
(11) The geographic proximity of the parents;
(12) Whether the safety of the child, other children, or the other parent will be jeopardized by an award of joint physical custody;
(13) 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 as a sex offender under chapter 22-24B;
(14) Whether a parent has attempted to influence a custody determination by alleging, falsely or without good cause, that the child or the sibling of the child has been subjected to physical or sexual abuse or abuse and neglect, as set forth in 25-4-45.8;
(15) Whether a parent is physically and mentally capable of providing temporal, mental, and moral wellness for the child;
(16) Whether a parent has the capacity and disposition to provide the child with protection, food, clothing, medical care, and other basic needs;
(17) Whether a parent is willing
and
capable
able to provide
the child love, affection, guidance, and education in order to impart
the family's religion or creed;
(18) Whether a parent is committed to prepare the child for responsible adulthood, as well as to ensure that the child experiences a fulfilling childhood;
(19) Whether a parent provides exemplary modeling so that the child witnesses firsthand what it means to be a good parent, a loving spouse, and a responsible citizen;
(20) Whether a parent provides a stable and consistent home environment including the relationship and interaction of the child with the parents, stepparents, siblings, and extended families;
(21) The extent of the child's
adjustment in
regards
regard to home,
school, and community;
(22) Whether a break in
attachment
with
to the parent
with whom the
child has formed a closer attachment would
cause detriment
be detrimental
due to the break in continuity for the child; and
(23) Whether a parent is guilty of misconduct that may have a harmful effect on the child.
Section 5. That 25-4A-25 be REPEALED.
If
both parents agree to joint physical custody of a child, the court is
not required to consider the factors set forth in 25-4A-24.
Section 6. That 25-4A-26 be REPEALED.
Nothing
in 25-4A-21
to 25-4A-27,
inclusive, creates a presumption of joint physical custody. The court
shall determine the appropriate physical care, custody, and control
of a minor child based on a determination of the best interests of
the child.