2020 Senate Bill 121 - Introduced

SDLRC - 2020 Senate Bill 121 - SD Legislature revise parenting guidelines and repeal Supreme Court authority to promulgate guidelines.

An Act to revise parenting guidelines and repeal Supreme Court authority to promulgate guidelines.

Be it enacted by the Legislature of the State of South Dakota:

Section 1. That   25-4A-10 be REPEALED.

25-4A-10. Supreme Court to promulgate guidelines for noncustodial parenting time.

Section 2. That   25-4A-9 be AMENDED:

25-4A-9. Standard guidelines defined.

For the purposes of      25-4A-9 to 25-4A-16 25-4A-16.1, inclusive, the term, standard guidelines, means the parenting guidelines established by court rules promulgated by the South Dakota Supreme Court pursuant to    25-4A-10      25-4A-29 through 25-4A-34.3.

Section 3. That a NEW SECTION be added:

25-4A-29. Parenting arrangements to minimize harm to children   recommendations for parenting arrangements.

A powerful cause of stress, suffering, and maladjustment in children of divorce or separation is not simply the divorce or separation itself, but rather the continuing conflict between their parents before, during, and after the divorce, separation, or both. To minimize harm to their children, parents should agree on a parenting arrangement that is most conducive to the children having frequent and meaningful contact with both parents, with as little conflict as possible. If parental maturity, personality, and communication skills are adequate, the ideal arrangement is equal, or approximately equal, time with both parents, since that provides the greatest stability for the children. The next best arrangement is a detailed parenting agreement made by the parents to fit their particular needs and, more importantly, the needs of their children. It is recommended that an annual calendar be prepared that maximizes the children's contact with each parent, minimalizes conflict, and raises parent and child awareness of the parenting schedule. If the parents are unable to agree on their own parenting plan, however, these guidelines become mandatory and will be used as their parenting plan and are enforceable as a court order. If a parent's time with the children becomes an issue in court, the judge shall set whatever parenting plan best meets the needs of the children.

Section 4. That a NEW SECTION be added:

25-4A-30. Parents speaking about other parent   Contact with relatives   Relocation of parent.

A parent shall always avoid speaking negatively about the other parent and shall firmly discourage such conduct by relatives or friends. Each parent shall speak in positive terms about the other parent in the presence of the children. Each parent shall encourage the children to respect the other parent. Children should never be used by one parent to spy or report on the other parent. The basic rules of conduct and discipline established by the custodial parent should be the baseline standard for both parents and any step-parents, and consistently enforced by all caregivers, so that the children do not receive mixed messages.

Children will benefit from continued contact with all relatives and friends on both sides of the family for whom they feel affection. Such relationships must be protected and encouraged. But relatives, like parents, need to avoid being critical of either parent in front of the children. Parents should have their children maintain ties with both the maternal and paternal relatives. Usually the children will visit the paternal relatives during times when the children are with their father and the maternal relatives during times when they are with their mother.

In cases where both parents reside in the same community at the time of separation, and then one parent leaves the area, thus changing the parenting plan, the court shall consider imposing on the parent who moved the travel costs for the children necessary to facilitate future time with the children; however, the court shall also consider other factors such as the economic circumstances of the parents and the reasons prompting the move. Before relocating the children, the custodial parent is required to comply with South Dakota's statutory forty-five-day written notice requirements.

Section 5. That a NEW SECTION be added:

25-4A-30.1. Parental communication.

Parents shall always keep each other advised of their home and work addresses and telephone numbers. Whenever feasible, all communication concerning the children must be conducted directly between the parents in person, or by telephone, or at their residences, or via email or text message. Absent an emergency, communication should not occur at a parent's place of employment.

Section 6. That a NEW SECTION be added:

25-4A-30.2. A child's academic and medical information.

Both parents shall ensure the other parent has the name, address, and telephone number of the school where any child attends and must authorize the other parent to communicate concerning the child directly with the school and with the child's doctors and other professionals, outside the presence of the custodial parent. Both parents have an obligation to contact the school to ensure receipt of school report cards, notices, and similar information, so that each parent can remain involved with their child's education. Both parents shall be listed on all of the child's records. Each parent shall immediately notify the other parent of any medical emergencies or serious illnesses of a child. Access to records and information pertaining to a minor child, including medical, dental, orthodontia and similar health care, and school records must be made equally available to both parents. Counseling, psychiatric, psychotherapy, and other records subject to confidentiality or privilege must only be released in accordance with state and federal law; but, if available to one parent, must be available to both. The parents shall make reasonable efforts to ensure that the name and address of the other parent is listed on all such records. If the child is taking medications, both parents shall provide a sufficient amount and appropriate instructions. If either parent enrolls the child in any social, beneficent, religious, or peer group activity, service, benefit, or program for which written application is required, the enrolling parent must provide the name and address of the other parent on, or supplementary to, the application. This provision does not apply to insurance or annuities. The parent enrolling the child shall advise the other parent of the name of the coach, director, and organization providing the activity along with their contact information. The custodial parent shall notify the noncustodial parent of all school or other events, such as church and sports, involving parental participation. The noncustodial parent also has an obligation to contact the activity director to ensure receipt of information such as practice schedules, games, and other similar information.

Attendance at academic or disciplinary meetings pertaining to the minor child shall be limited to the parents and the respective school professionals. Others may not attend such meetings without advance, written mutual parental agreement or court order.

Section 7. That a NEW SECTION be added:

25-4A-30.3. Clothing.

For custodial/noncustodial arrangement only, the custodial parent shall send an appropriate supply of children's clothing with the children, that must be returned clean, when reasonably possible, with the children by the noncustodial parent. The noncustodial parent shall advise, as far in advance as possible, of any special activities so that appropriate clothing belonging to the children may be sent. The custodial parent shall, upon request, send one set of higher quality clothing so that the noncustodial parent can take the children to church on Sunday. It is recommended that the noncustodial parent have some basic clothing available in that parent's home to ensure that all of the children's basic needs are met.

Section 8. That a NEW SECTION be added:

25-4A-30.4. Withholding support or time with the children.

Neither time with the children nor child support is to be withheld because of either parent's failure to comply with a court order. Only the court may enter sanctions for noncompliance. Children have a right both to support and, absent abuse or other safety concerns, time with the noncustodial parent, neither of which is dependent upon the other. In other words, no support does not mean the children will spend no time with the noncustodial parent, and no time with the noncustodial parent does not mean no support needs to be paid to the custodial parent. If there is a violation of either the parenting order or a support order, the exclusive remedy is to apply to the court for appropriate sanctions.

Section 9. That a NEW SECTION be added:

25-4A-30.5. Modifications in parenting plan.

Although this is a specific schedule, the parents are expected to fairly modify the parenting plan when family necessities, illnesses, or commitments reasonably so require. The requesting parent shall act in good faith and give as much notice as circumstances permit.

Section 10. That a NEW SECTION be added:

25-4A-30.6. Parent's vacation with children.

Unless otherwise specified in a court order or agreed upon by the parents, each parent is entitled to a vacation with the children for a reasonable period of time, usually equal. For custodial/noncustodial arrangements, the custodial parent should plan a vacation during the time when the noncustodial parent is not scheduled to spend time with the children. Parents are encouraged to coordinate vacation plans.

Section 11. That a NEW SECTION be added:

25-4A-30.7. Insurance forms.

The parent who has medical insurance coverage on the children shall supply to the other parent an insurance card and, as applicable, insurance forms and a list of insurer-approved or HMO-qualified health care providers in the area where the other parent is residing. Except in emergencies, the parent taking the children to a doctor, dentist, or other provider not so approved or qualified may be required to pay the additional cost thus created. However, if there is a change in insurance, which requires a change in medical care providers and a child has a chronic illness, thoughtful consideration should be given by the parents to what is more important, such as allowing the child to remain with the original provider or the economic consequences of changing carriers. If there is an obligation to pay medical expenses, the parent responsible for paying must be promptly furnished with the bill, and where applicable, the explanation of benefits, by the other parent. The parents shall cooperate in submitting bills to the appropriate insurance carrier. Thereafter, the parent responsible for paying the balance of the bill shall make arrangements directly with the health care provider and shall inform the other parent of such arrangements. Insurance refunds must be promptly turned over to the parent who paid the bill for which the refund was received.

Section 12. That a NEW SECTION be added:

25-4A-30.8. Child support abatement.

Child support abatements shall be liberally considered and applied in situations where the custodial parent's income is greater than or equal to the South Dakota median household income and the noncustodial parent has a consistent history of exercising that parent's time with the children.

Section 13. That a NEW SECTION be added:

25-4A-30.9. Noncustodial parent's missed time with the children.

If scheduled time with the children cannot occur due to events beyond either parent's control, such as illness of the parent exercising time with the children, then a mutually agreeable substituted date shall be arranged, as quickly as possible. Each parent shall timely advise the other parent when scheduled time with the children cannot be exercised. Missed time with the children may not be unreasonably accumulated.

Section 14. That a NEW SECTION be added:

25-4A-30.10. Parenting time based on child's age.

Except with very young children and adolescents, it usually makes sense for all the children to share the same schedule of parenting time with the noncustodial parent. Having brothers or sisters along can be an important support for children. Infants have special needs that may well prevent a parent from being with both the infant and the older children at the same time. Teenagers' special needs for peer involvement and for some control of their own lives may place them on different schedules from their younger brothers and sisters. Because it is intended that the noncustodial parent's time with the children be a shared experience between siblings and, unless these guidelines, a court order, or circumstances such as age, illness, or a particular event suggests otherwise, all the children should participate together in spending time with the noncustodial parent.

Section 15. That a NEW SECTION be added:

25-4A-30.11. Communication with children.

Either parent may call, text, email, or Skype, or use similar technology, to communicate with the children at reasonable times and with reasonable frequency during those periods the children are with the other parent. The children may, of course, call, text, email, or Skype, or use similar technology, to communicate with either parent, at reasonable hours and with reasonable frequencies. Parents are cautioned that communication between the parent and the children should not be so excessive as to interfere with the other parent's time, nor used to undermine the other parent's authority. During long vacations, the parent with whom the children are on vacation is required to make the children available for telephone calls with the other parent at least every three days. At all other times, the parent the children are with may not refuse to answer the other parent's telephone calls or turn off the telephone in order to deny the other parent telephone contact. If a parent uses an answering machine or cell phone voicemail, messages left should be returned by a telephone call to that parent as soon as possible. Parents should agree on a specified time for calls to the children so that the children will be made available no less than three days per week. Either parent may provide an any child with a cell phone. In such instances, it is not appropriate for a parent to use restrictions from talking to the other parent on that cell phone as a means of punishing the child subject to a parent's ability to set reasonable restrictions on cell phone use while the child is present in that parent's home. Communication between a parent and child may not be censored, recorded, or monitored, absent a court order. With older children, establishing an email account for communication with the other parent is recommended and should likewise not be read or monitored by the other parent without court permission. Email communication or text messaging between parents is also helpful in keeping the other parent informed about the children. Abuse, neglect, criminal activity, or protection orders m