South Dakota House passes fathers’ rights/shared custody bill

The state house of representatives in South Dakota have passed bill that will require divorce court judges to start from the assumption that physical custody will be shared equally between mothers and fathers. While the shared custody bill still has to make it through the state senate and be signed by the governor, fathers’ rights groups are lauding the bill’s passage in the state house. Proponents say it will help bring South Dakota into line with family law in other states and give fathers greater access to their children.

South Dakota is currently one of only 13 states with no statutory language promoting shared parenting. Georgia does have language in its child custody law prohibiting gender bias.

Joint legal custody is already the default assumption in South Dakota. The new bill would change the rules for physical custody from today’s standard that the children’s primary caregiver is awarded primary physical custody and the other parent is given visitation.

Bill’s proponents say noncustodial parents in South Dakota see their children an average of only three to six days a month

A representative of the organization Children Need Parents, which works to protect both mothers’ and fathers’ rights, testified before the state house that the average noncustodial parent in South Dakota only gets to see his or her children three to six times a month.

In reality, “noncustodial parent” means “father” in most cases. According to a 2007 study by the U.S. Census Bureau, 82.6 percent of all custodial parents in the U.S. are mothers.

“Saying that only 15 percent of the fathers are fit to have custody isn’t right,” said Rapid City, South Dakota, representative Don Kopp, explaining why he voted for the bill.

Opponents of the bill argued that the assumption that parents will share parenting time equally would lead to children “living out of suitcases” and take away judges’ discretion to determine the best interest of the child.

Proponents say that children whose parents share physical custody perform better in school and experience fewer emotional problems and brushes with the legal system. They say that other states have not experienced any great upheavals from such laws.

They also deny that judges’ discretion would be taken away. Judges would still have the authority to consider factors like drug abuse or domestic violence when denying shared custody. The bill would merely require judges to provide a written explanation if they choose to deny a 50-50 share of parenting time.

“Judges would still have the full discretion to determine what is in the best interest of the child,” said state representative Melissa Magstad.

It is unclear whether the law would apply to legitimation and paternity proceedings for unmarried fathers.


  • Sioux Falls Argus Leader, “House OKs custody change,” John Hult, February 24, 2011
  • Sioux Falls Argus Leader, “Bill aimed at helping fathers in custody cases moves ahead,” John Hult, February 16, 2011

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