State Laws and Legislation

South Dakota Custody and Visitation Law

Custody and Visitation for Gay, Lesbian and Bisexual Parents
South Dakota courts typically will not consider a parent’s sexual orientation in custody and visitation determinations unless it is shown to adversely affect or harm the child(ren).

South Dakota law states: “In any custody dispute between parents, the court may order joint legal custody so that both parents retain full parental rights and responsibilities with respect to their child and so that both parents must confer on major decisions affecting the welfare of the child. In ordering joint legal custody, the court may consider the expressed desires of the parents and may grant to one party the ultimate responsibility over specific aspects of the child’s welfare or may divide those aspects between the parties based on the best interest of the child. If it appears to the court to be in the best interest of the child, the court may order, or the parties may agree, how any such responsibility shall be divided. Such areas of responsibility may include primary physical residence, education, medical and dental care and any other responsibilities which the court finds unique to a particular family or in the best interest of the child.”

In a 1994 case, Van Driel v. Van Driel, the trial court awarded primary custody to the mother. The father appealed, arguing that his former wife’s same-sex relationship was grounds for reversal. The state Supreme Court affirmed the trial court’s decision, noting that a parent’s conduct must be shown to have had some harmful effect on the children. The high court observed that there was not evidence of harmful effect in this case. Additionally, the court dismissed the father’s contention that this case was similar to the Chicoine case. The state Supreme Court distinguished Chicoine by pointing out that the mother had engaged in a lot of inappropriate behavior and in this case there was no evidence of that in this case.

In 1992’s Chicoine v. Chicoine, the trial court awarded the father, Michael, custody, and the lesbian mother, Lisa, unsupervised overnight visits with the restriction that there were no unrelated females or gay men present. There was a record of Lisa suffering a “myriad of psychological problems,” taking the children to gay bars and allowing the children to sleep in the bed with her and her partner unclothed. Michael appealed, arguing that the trial court abused its discretion in granting unsupervised overnight visitation to Lisa. Michael argued that the children would be harmed by continued exposure to Lisa’s “homosexual lifestyle.” The state Supreme Court clarified that visitation between a parent and child is in most circumstances in the best interests of the child unless the exercise of visitation will be harmful to the welfare of the children. The Supreme Court felt that the trial court had not done all it should have to ensure that Lisa will put the needs of the children first and ordered a home study to be conducted to be determine whether the children would be in a safe and stable environment at Lisa’s home.

In a 1984 case, Wolff v. Wolff, the father was granted custody of the child, and the mother appealed. One of her arguments was that the father had an ongoing sexual relationship with a juvenile who moved into the home after the separation and that some of these sexual acts were performed in the presence of the child. The state Supreme Court agreed that “maintaining and exposing the child to an active male homosexual … is not conducive to raising this boy in a wholesome home environment.” The high court concluded that awarding the father custody was an abuse of discretion of the part of the trial court.

Custody and Visitation for Transgender Parents
There are no published cases dealing with transgender parents. State law, however, does not seem to permit the consideration of factors that do not affect the best interests of the child to be used in custody and visitation determinations.

Custody and Visitation for Same-Sex Co-Parents
Although there are no published cases dealing with same-sex co-parents, state law allows for a person not legally or biologically related to petition for visitation.

South Dakota law states: “The court may allow any person other than the parent of a child to intervene or petition a court of competent jurisdiction for custody or visitation of any child with whom he or she has served as a primary caretaker, has closely bonded as a parental figure, or has otherwise formed a significant and substantial relationship. It is presumed to be in the best interest of a child to be in the care, custody and control of the child’s parent, and the parent shall be afforded the constitutional protections as determined by the United States Supreme Court and the South Dakota Supreme Court. A parent’s presumptive right to custody of his or her child may be rebutted by proof: (1) That the parent has abandoned or persistently neglected the child; (2) That the parent has forfeited or surrendered his or her parental rights over the child to any person other than the parent; (3) That the parent has abdicated his or her parental rights and responsibilities; or (4) That other extraordinary circumstances exist which, if custody is awarded to the parent, would result in serious detriment to the child. …

“Parental rights need not be terminated if custody awarded to person other than parent. If a court determines that a person other than a parent should be awarded custody or visitation, the court need not terminate either parent’s parental rights over the child. A judgment awarding to a person other than a parent custodial rights may award the parent visitation rights with the child. …

“Nothing in [state law] creates any right on behalf of a stepparent to seek custody or visitation with a stepchild who has lived with that stepparent merely because the stepparent was married to or living with the child’s parent.”

Citations: S.D. CODIFIED LAWS § 25-5-7.1; § 25-5-32; § 25-5-31; Van Driel v. Van Driel, 525 N.W.2d 37 (S.D. 1994); Chicoine v. Chicoine, 479 N.W.2d 891 (S.D. 1992); Wolff v. Wolff, 349 N.W.2d 656 (S.D. 1984).


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Last Updated: 3/27/2007  

Updated: Mon, March 26, 2007 - 11:00:20