Changes to South Dakota’s Parenting Guidelines – Effective July 1, 2022

Effective July 1, 2022, changes are coming to the South Dakota Parenting Guidelines (“Guidelines”). These changes provide significantly more clarity to decrease arguments between parents as to what the Guidelines state. Below are some of the changes you should be aware of:

All items previously listed under Guideline 1. General Rules have now been relocated to Guideline 4. General Rules Applicable to All Parents. This means all the guideline numbers have moved up, making it even more important to understand and follow the most up-to-date guidelines.

Notably, across the Guidelines, the distinction between custodial and noncustodial parents has been significantly decreased and, in most cases removed, in favor of language identifying the parent providing primary care or the “residential parent.” This is a trend on a national scale and one that will likely bleed over into other areas of family law as well.

Enforcement.

• This new opening section states the Guidelines are enforceable as a court order; however, a parent has a right to object. If parents cannot agree on a parenting plan, the Guidelines are mandatory and enforceable, however, if a parent disagrees with the use of the Guidelines, either parent may file a written objection and participate in a court hearing.

Guideline 1. For Parents Who Have Children Under Age 5.

• There is no longer an exception for shared responsibility. The previous Guidelines offered a carve-out for whether the Guidelines would apply to parents who “are truly sharing equally all the caregiving responsibilities for the children and the children are equally attached to both parents.” In general, the previous Guidelines would only apply when there is a true distinction of primary caregiver as custodial parent and the other parent as noncustodial. This distinction no longer exists in the new Guidelines.

• Terms and conditions related to breastfeeding have moved to Guideline 1.8.

• Addition of terms to continue the status quo. The new Guidelines for children up to three years of age allow for a parenting schedule to continue where both parents are engaged in ongoing caregiving and overnights are allowed to maintain as much stability as possible. The previous Guidelines did not provide this exception to the alternative parenting schedules.

• Parents of a child or children 3 to 5 years old gain parenting time under one alternative schedule. Option 1 for parenting schedules in this age group used to permit one overnight not to exceed 18 hours. Under the new Guidelines, this has been extended to 24 hours.

• No more restrictions on the non-custodial parent’s use of daycare services. The new Guidelines removed all language that prevented the non-custodial parent from using a daycare, babysitter, or relatives, and mandated the non-custodial parent to return the child to the custodial parent if the non-custodial parent needed daycare or a babysitter.

• Non-custodial parent can no longer remove child from daycare for parenting time. All language referencing a non-custodial parent’s ability to remove the child from daycare with prior approval from the custodial parent and daycare provider has been deleted.

• Holidays are now set out in a chart. Previously, the Guidelines only stated certain holidays to alternate if parents lived in the same or nearby communities and limited those parenting times to the longest amount of time permitted during normal parenting time. Now there is a chart like the one used for older children. A separate Mother’s Day and Father’s Day subsection was removed and incorporated into the chart. In the chart,Parent 1 is mom; Parent 2 is dad.

• Each parent is entitled to two separate 5-day vacation periods. This lowers the previously permissible two separate one-week vacations. However, the new Guidelines state the parent may extend the 5-day period to 7 days depending on the adaptability of the children.

• A new section regarding long-distance parenting for children under the age of 5 has been added. It points out how implementing the Guidelines over long-distances can be difficult, and parents should use alternative methods, such as phone calls and video calls, for the parent and child bond to build.

Guideline 2:For Parents Who Have Children Aged 5 and Older and Reside no More Than 200 Miles Apart.

• Weekends now begin immediately after school and go until Monday morning drop-off at school. Weekends are no longer 5:30 p.m. on Friday until 7:00 p.m. on Sunday. Weekend parenting time is now extended to include Sunday overnights. Parenting time begins Friday at 3:15 p.m. or immediately after school lets out, whichever applies, and goes until 8:00 a.m. Monday morning or whenever school starts Monday morning.

• Mid-week visits are in a new subsection, are delegated to Wednesday nights (if parents cannot agree on a night), and start immediately after school until the return to school on Thursday morning. Like the weekend times, mid-week overnight parenting time begins at 3:15 p.m. or immediately after school lets out and goes until 8:00 a.m. or whenever school starts on Thursday morning.

• Summer breaks can still be broken up by the parent with whom the child spends the least amount of time with during the school year, but it now requires a 30-day advance notice of how the summer will be broken up. The parent who has the child for most of the school year has the weekend before and weekend immediately after the other parent’s summer parenting time, regardless of weekend designations. If blocks of time over 3 weeks are exercised, there must be a 48-hour continuous time for the parenting not exercising parenting time to spend with the child.
  
• Holidays are now tailored to school schedules. The times in the holiday chart now reflect standard start and release times for schools. Notably, some smaller holidays are now overnight instead of a block of time. For example, Halloween is from the release of school until the start of the next school day.
  
• Mother’s Day and Father’s Day are now overnight holidays.
• Christmas Eve and Christmas Day are separate from the winter break. This distinction helps with those families who may not celebrate Christmas and provides more clarification on parenting times for those who do.

• A child’s birthday is overnight, and parenting time is with all children, not just the child with the birthday. If the child’s birthday falls on a holiday, parenting time takes place the day before the holiday.

• Parents’ birthdays are overnight, as well. Parenting time starts at 8:00 a.m. on the parent’s birthday and continues until 8:00 a.m. the next day.

• Conflicts of parenting time, holidays, and birthdays are resolved the same, but no parent is allowed to have more than 3 weekends in a row of parenting time.
• Each parent gets a total of 14 days of vacation (taken in no more than 7-day increments) with the child on 30 days’ notice. In the event there is a dispute, the mother gets priority to choose dates in even-numbered years, and the father chooses in odd-numbered years.
• The minimum 3-day notice of cancelled time or intent to not exercise parenting time applies to both parents regardless of custodial status.

Guideline 3: For Parents Who Have Children Aged 5 and Older and Reside More Than 200 Miles Apart.

• A chart for holidays has been included and provides schedules for Christmas, Thanksgiving, Easter, and Spring Break (if separate from Easter break). Like the other provisions of the new guidelines, the timing focuses on when school releases for the start of break and when school ends for the end of break.

• Summers are still with the non-primary parent, but now provides the primary parent with one 48-hour period every three weeks to spend with the child. This parenting time for primary parent is entirely at the primary parent’s expense. Summertime with the non-primary parent still takes precedence over school activities, but there is a carve out for when the child reaches an age and maturity level that the activities become more important. The parents are then required to take that activity into account when scheduling summer parenting time.

• More carve-outs for additional parenting time for the parent living farther away have been added. The parent living away from the child, can, at his/her own expense travel to extend parenting time, keeping in mind the holiday schedule, and not purposefully interfering with that schedule, to exercise at least 48 hours of parenting time. This extra time cannot be exercised more than every other weekend.

Guideline 4: General Rules Applicable to all Parents.

• There is no longer the default to “basic rules of conduct and discipline established by the custodial parent” as the baseline for how the parents and any stepparents should guide conduct and discipline. The remainder of the General Rules remained largely unchanged. Most sections were combined for convenience and were rewritten to remove either very strict or ambiguous language.

Separate sections are added at the end of the Guidelines to provide basic information, such as:

• General legal definitions of “legal custody” and “physical custody.”

• A “Scope of Application” that adds parameters for the applicability of the Guidelines when there are factors such as violence, abuse and neglect, an incarcerated parent, and other factors are present.

• Any parenting time schedule already in place as of July 1, 2022, will be enforced pursuant to those terms, including the prior parenting guidelines. However, a request to change parenting to match the new guidelines can occur but may not solely rely on the fact that new guidelines exist. Likewise, any protection order will prevail over the new parenting guidelines.

Finally, the new Guidelines incorporated a 2-page ‘Tips to Stay Focused on the Children.” These tips focus on the effect divorce and separate households has on children and provides information on how to help children through the process. It is always important to keep the children at the center of decision-making and always have open communication to keep both parents involved and to make childhood as fulfilling as possible.

These changes were presented to and adopted by the South Dakota Supreme Court after the Court considered and weighed the written and oral arguments both for and against the revisions.