Unified Judicial System
SHARED PARENTING GUIDELINES
[October 12, 1999)
A powerful cause of stress, suffering, and maladjustment in children of divorce is not simply the divorce itself, but continuing conflict between the parents before, during and after the divorce. To minimize conflict over the children, the 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. When parents' maturity, personality and communication skills are adequate, the ideal arrangement is reasonable visitation upon reasonable notice, since that provides the greatest flexibility. The next best arrangement is a detailed visitation agreement made by the parents to fit their particular needs and, more importantly, the needs of the children. If the parents are unable to agree, however, the following guidelines will help the parents, lawyers and judges in working out an arrangement fair to the children and the parents. (See Paragraph 1.17 below.) In the event visitation becomes an issue in court, the judge will set whatever visitation schedule best meets the needs of the children.
1. GENERAL RULES
Parents should always avoid speaking negatively about the other and should firmly discourage such conduct by relatives or friends. In fact, the parents should speak in positive terms about the other parent n the presence of the children. Each parent should encourage the children to respect the other. Children
should never be used by one parent to spy on the other. The basic rules of conduct and discipline established by the custodial parent should be the base-line standard for both parents and any step-parents, and consistently enforced by all, so that the children do not receive mixed signals.
Children will benefit from continued contact with all relatives and family friends on both sides of the family for whom they feel affection. Such relationships should 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. In South Dakota
grandparents have a legal right to reasonable visitation with their grandchildren, if it is in their best interests. Usually the children will visit with the paternal relatives during times the children are with their father and with the maternal relatives during times they are with their mother.
In cases where both parents resided in the same community at the time of separation, and then one parent left the area, thus changing the visitation pattern, the court will consider imposing the travel costs for the children necessary to facilitate future visits on the parent who moved. The court will also consider other factors, however, such as the economic circumstances of the parents and the reasons prompting the move.
1.1 Parental communication. Parents should always keep each other advised of their home and work addresses and telephone numbers. As far as possible, all communication concerning the children shall be conducted between the parents themselves in person, or by telephone at their residences and not at their places of employment.
1.2 Grade Reports and Medical Information. The custodial parent shall provide the Noncustodial parent with grade reports and notices from school as they are received and shall permit the Noncustodial parent to communicate concerning the child directly with the school and with the children's doctors and other professionals outside the presence of the custodial parent. Each parent shall immediately notify the other of any medical emergencies or serious illnesses of the children. The custodial parent shall notify the noncustodial parent of all school or other events (like Church or Scouts) involving parental participation.
If the child is taking medications, the custodial parent shall provide a sufficient amount and appropriate instructions.
1.3 Visitation Clothing. The custodial parent shall send an appropriate supply of children's clothing with them, which shall 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 the appropriate clothing may be sent.
1.4 Withholding Support or Visitation. Neither visitation 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 non-compliance. Children have a right both to support and visitation, neither of which is dependent upon the other. In other words, no support does not mean no visitation and no visitation does not mean no support. If there is a violation of either a visitation or a support order, the exclusive remedy is to apply to the court for appropriate sanctions.
1.5 Adjustments in this Visitation Schedule. Although this is a specific schedule, the parties are expected to fairly modify visitation 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.
1.6 Custodial Parent's Vacation. Unless otherwise specified in a court order or agreed by the parties, the custodial parent is entitled to a vacation with the children for a reasonable period of time, usually equal to the vacation time the noncustodial parent takes with the children. The custodial parent should plan a vacation during the time when the noncustodial is not exercising extended visitation.
1.7 Insurance Forms. The parent who has medical insurance coverage on the children shall supply, 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. A parent who, except in an emergency, takes the children to a
doctor, dentist or other provider not so approved or qualified should pay the additional cost thus created. However, when 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 parties to what is more important: allowing the child to remain with the original provider or the economic
consequences of changing. When there is an obligation to pay medical expenses, the parent responsible therefor shall be promptly furnished with the bill by the other. 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 should be promptly turned over to the parent who paid the bill for which the refund was paid.
1.8 Child support abatement. Unless a court order otherwise provides, support shall not abate during any visitation period. (South Dakota law provides: "An abatement of a portion of the child support may be ordered if a child spends more than ten days a month with the noncustodial parent." SDCL 25-7-6.14. However, no abatement may be taken unless there is a court order allowing it.)
1.9 Missed Visitation. When a scheduled visitation cannot occur due to events beyond either parents' control, such as illness of the parent exercising visitation or the child, a mutually agreeable substituted visitation date shall be arranged, as quickly as possible. Each parent shall timely advise the other when a particular visitation cannot be exercised. Missed visitation should not be unreasonably accumulated.
1.10 Visitation A Shared Experience. Because it is intended that visitation be a shared experience between siblings and, unless these Guidelines, a court order, or circumstances, such as age, illness, or the particular event, suggest otherwise, all of the children shall participate in any particular visitation.
1.11 Telephone Communication. Telephone calls between parent and child shall be liberally permitted at reasonable hours and at the expense of the calling parent. The custodial parent may call the children at reasonable hours during those periods the children are on visitation. The children may, of course, call either parent, though at reasonable hours, frequencies and at the cost of the parent called if it is a long distance call. During long vacations the parent with whom the child is on vacation is only required to make the child available to telephone calls every five days. At all other times the parent the child is with shall not refuse to answer the phone or turn off the phone in order to deny the other parent telephone contact. If a parent uses an answering machine, messages left on the machine for the child should be returned. Parents should agree on a specified time for calls to the children so that the children will be made available.
1.12 Mail Contact. Parents have an unrestricted right to send cards, letters and packages to their children. The children also have the same right with their parents. Neither parent should interfere with this right.
1.13 Privacy of Residence. A parent may not enter the residence of the other except by express invitation of the resident parent, regardless of whether a parent retains a property interest in the residence of the other. Accordingly, the children shall be picked up and returned to the front entrance of the appropriate residence. The parent dropping the children off should not leave until the children are safely inside. Parents should refrain from surprise visits to the other parent's home. A parent's time with the children is their own, and the children's time with that parent is equally private.
1.14 Children Under Age Five. Infants (children under eighteen months of age) and toddlers (eighteen months to three years) have a great need for continuous contact with the primary caretaker who provides a sense of security, nurturing and predictability. Generally overnight visits for infants and toddlers are not recommended unless the noncustodial parent is very closely attached to the child and is able to provide primary care. Older preschool age children (three to five) are able to tolerate limited separations from the primary caretaker. The following guidelines for children under age five are designed to take into account the child's developmental milestones as a basis for visitation. Since children mature at different rates these may need to be adjusted to fit the child's unique circumstances. These guidelines may not apply to those instances where the parents are truly sharing equally all the caretaking responsibilities for the child and the child is equally attached to both parents. Yet in the majority of situations where the custodial parent has been the primary caretaker and the noncustodial parent has maintained a continuous relationship with the child but has not shared equally in child caretaking the following guidelines should generally apply:
A. Infants ¨ Birth to Six Months. Alternate parenting plans: (1) Three two-hour visits per week, with one weekend day for six hours; or (2) Three two-hour visits per week, with one overnight on a weekend for no longer than a twelve hour period, if the child is not breast feeding and the noncustodial parent is capable of providing primary care.
B. Infants ¨ Six to Eighteen months. Alternate parenting plans: (1) Three, three-hour visits per week with one weekend day for six hours; or (2) Same as (1), but with one overnight not to exceed twelve hours, if the child is not breast feeding and the noncustodial parent is capable of providing primary care; or (3) Child spends time in alternate homes, but spends significantly more time at one of them and no more than two twelve-hour overnights per week at the other. This arrangement should be considered only for mature, adaptable children and very cooperative parents.
C. Toddlers ¨ Eighteen to Thirty-six months: Alternate parenting plans: (1) The noncustodial parent has the child up to three times per week for a few hours on each visit, on a predictable schedule: or (2) Same as (1) but with one overnight per week; or (3) Child spends time in alternate homes, but with more time in one than the other with two or three overnights spaced regularly throughout the week. This requires an adaptable child and cooperative parents.
D. Preschoolers ¨ Three to five-years-old. Alternate parenting plans: (1) One overnight visit (i.e. Saturday morning to Sunday evening) on alternate weekends and one midweek visit with the child returning to the custodial parent's home at least one-half hour before bedtime; or (2) Two or three nights at one home, spaced throughout the week, the remaining time at the other home. In addition, for preschoolers, a vacation of no longer than two weeks with the noncustodial parent.
E. Children in day care. In families where a child has been in day care prior to the parental separation, the child may be able to tolerate flexible visits earlier because the child is more accustomed to separations from both parents. The noncustodial parent who exercises visitation of a child under age five should not during the visits place the child with a baby-sitter or day care provider. If the Noncustodial parent cannot be with the child personally, the child should be returned to the custodial parent. Visiting for short periods with relatives may be appropriate, if the relatives are not merely serving as baby-sitters.
1.15 Visitation With Adolescents. Within reason the parents should honestly and fairly consider their teenager's wishes on visitation. Neither parent should attempt to pressure their teenager to make a visitation decision adverse to the other parent. Teenagers should explain the reasons for their wishes directly to the affected parent, without intervention by the other parent.
1.16 Day Care Providers. When parents reside in the same community, they should use the same day care provider. To the extent possible the parents should rely on each other to care for the children when the other parent is unavailable.
1.17 Special circumstances.
A. Child Abuse. When child abuse has been established and a continuing danger is shown to exist, all visitation should cease or only be allowed under supervision, depending on the circumstances. Court intervention is usually required in child abuse cases.
B. Spouse Abuse. Witnessing spouse abuse has long-term, emotionally detrimental effects on children. Furthermore, a person who loses control and acts impulsively with a spouse, may be capable of doing so with children as well. Depending on the nature of the spouse abuse and when it occurred, the court
may require an abusive spouse to successfully complete appropriate counseling before being permitted unsupervised visitation.
C. Substance Abuse. Visitation should not occur when a Noncustodial parent is abusing substances.
D. Long Interruption of Contact. In those situations where the noncustodial parent has not had an ongoing relationship for an extended period, visitation should begin with brief visits and a very gradual transition to the visitation in these guidelines.
E. Kidnapping Threats. Noncustodial parents who have threatened to kidnap or hide the children should have no visitation or only supervised visits.
F. Breast Feeding Child. Forcibly weaning a child, whether breast feeding or bottle feeding, during the upheaval of parental separation is not appropriate for the physical health or emotional well-being of the child. Until weaning has occurred without forcing, a nursing infant should have visits of only a few hours each. A parent should not use breast feeding beyond the normal weaning age as a means to deprive the other parent of visitation.
G. A Parent's New Relationship. Parents should be sensitive to the danger of exposing the children too quickly to new relationships while they are still adjusting to the trauma of their parent's separation and divorce.
H. Religious Holidays and Native American Ceremonies. Parents should respect their children's needs to be raised in their faith and in keeping with their cultural heritage and cooperate with each other on visitation to achieve these goals. These goals should not be used to deprive the noncustodial parent of visitation.
I. Other. The court will limit or deny visitation to noncustodial parents who show neglectful, impulsive, immoral, criminal, assaultive or risk-taking behavior with or in the presence of the children.
2. VISITATION OF CHILDREN OVER AGE FIVE WHEN THERE
IS SOLE CUSTODY OR PRIMARY PHYSICAL CUSTODY AND
PARENTS RESIDE NO MORE THAN 200 MILES APART
2.1 Weekends. Alternate weekends from Friday at 5:30 P.M. to Sunday at 7 P.M.; the starting and ending times may change to fit the parents' schedules. Or an equivalent period of time if the visiting parent is not available on weekends and the child does not miss school. In addition, if time and distance allow, one or two midweek visits of two to three hours. All transportation for the midweek visits are the responsibility of the visiting parent.
2.2 Mother's Day - Father's Day. The alternate weekends will be shifted, exchanged or arranged so that the children are with their mother each Mother's Day weekend and with their father each Father's Day weekend. Conflicts between these special weekends and regular visitation shall be resolved
pursuant to Paragraph 1.9.
2.3 Extended Visitation. One-half of the school summer vacation. At the option of the Noncustodial parent, the time may be consecutive or it may be split into two blocks of time. If the child goes to summer school and it is impossible for the noncustodial parent to schedule this visitation time other than during summer school, that parent may elect to take the time when the child is in summer school and transport the child to the summer school session at the child's school or an equivalent summer school session in the noncustodial parent's community.
2.4 Winter (Christmas) Vacation. One-half the school winter vacation, a period which begins the evening the child is released from school and continues to the evening of the day before the child will return to school. If the parents cannot agree on the division of this period, the noncustodial parent shall have the first half in even-number years. If the parents live in the same community, in those years when Christmas does not fall in a parent's week, that parent shall have from Noon to 9 P.M. on Christmas Day. For toddlers and preschool age children, when the parents live in the same community, the parents should alternate each year Christmas Eve and Christmas Day so that the children spend equal time with each parent during this holiday period.
2.5 Holidays. Parents shall alternate the following holiday weekends: Easter, Memorial Day, the 4th of July, Labor Day and Thanksgiving. Thanksgiving will begin on Wednesday evening and end on Sunday evening; Memorial Day and Labor Day Weekends will begin on Friday and end on Monday evening;
Easter weekend will begin on Thursday evening and end on Sunday evening: while the 4th of July, when it does not fall on a weekend, shall include the weekend closest to the 4th. Holiday weekends begin at 5:30 P.M. and end at 7 P.M. on the appropriate days.
2.6. Children's Birthdays. Like the holidays, a child's birthday shall be alternated annually between the parents. If the birthday falls on a weekend, it shall extend to the full weekend, and any resulting conflict with regular visitation shall be resolved pursuant to Paragraph 1.9. If the birthday falls on a weekday, it shall be celebrated from 3 P.M. to 9 P.M. (or so much of that period as the noncustodial parent elects to use).
2.7. Parents' Birthdays. The children should spend the day with the parent who is celebrating their birthday, unless it interferes with a noncustodial parent's extended visitation during vacation.
2.8. Conflicts between Regular and Holiday Weekends. When there is a conflict between a holiday weekend and the regular weekend visitation, the holiday takes precedence. Thus, if the noncustodial parent misses a regular weekend because it is the custodial parent's holiday, the regular alternating visitation schedule will resume following the holiday. If the noncustodial parent receives two consecutive weekends because of a holiday, regular alternating visitation will resume the following weekend with the custodial parent. The parents should agree to make up missed weekends due to holiday conflicts.
2.9. Visitation Before and During Vacations. There will be no visitation the weekend(s) before the beginning of the noncustodial parent's summer vacation visitation period(s), regardless of whose weekend it may be. Similarly, that parent's alternating weekend visitation(s) shall resume the second weekend after each period of summer vacation that year. Weekend visitation "missed" during the summer vacation period will not be "made up." During any extended summer visitation of more than three consecutive weeks, it will be the noncustodial parent's duty to arrange, for a time mutually convenient, a 48-hour continuous period of visitation for the custodial parent unless impracticable because of distance.
2.10. Notice of Canceled
Visitation. Whenever possible, the noncustodial parent shall give a minimum of three days notice of intent not to exercise all or part of the scheduled visitation. When such notice is not reasonably possible, the maximum notice permitted by the circumstances, and the reason therefor, shall be given. Custodial parents shall give the same type of notice when events beyond their control make the cancellation or modification of scheduled visitation necessary. If the custodial parent cancels or modifies a visit because the child has a schedule conflict, the noncustodial parent should be given the opportunity to take the child to the scheduled event or appointment.
2.11. Pick Up and Return of Children. When the parents live in the same community, the responsibility of picking up and returning the children should be shared. Usually the noncustodial parent will pick up and the custodial parent will return the children to that parent's residence. The person picking up or returning the children during times of visitation has an obligation to be punctual: to arrive at the agreed time, not substantially earlier or later. Repeated, unjustified, violations of this provision may subject the offender to court sanctions.
2.12. Additional Visitation. Visitation should be liberal and flexible. For many parents these guidelines should be considered as only a minimum direction for interaction with the children. These guidelines are not meant to foreclose the parents from agreeing to such additional visitation as they find reasonable at any given time.
3. VISITATION OF CHILDREN OVER AGE FIVE WHEN SOLE
CUSTODY OR PRIMARY PHYSICAL CUSTODY AND PARENTS
RESIDE MORE THAN 200 MILES APART
3.1 Extended visitation. All but three weeks of the school summer vacation period and, on an alternating basis, the school Winter (Christmas) vacation and Spring Break.
3.2 Priority of Summer Visitation. Summer visitation with the noncustodial parent takes precedence over summer activities (such as Little League) when the visitation cannot be reasonably scheduled around such events. Even so, the conscientious noncustodial parent will often be able to enroll the child in a similar activity.
3.3 Notice. At least 60 days notice should be given of the date for commencing extended visitation, so that the most efficient means of transportation may be obtained and the parties and the children may arrange their schedules. Failure to give the precise number of days notice does not entitle the custodial parent the right to deny visitation.
3.4 Additional Visitation. Where distance and finances permit, additional visitation, such as for holiday weekends or special events, are encouraged. When the noncustodial parent is in the area where the child resides, or the child is in the area where the noncustodial parent resides, liberal visitation shall be allowed and because the noncustodial parent does not get regular visitation, the child can miss some school during the visits so long as it does not substantially impair the child's scholastic progress.
Version 2 (June 1997). These guidelines were compiled by Justice John K. Konenkamp in consultation with various circuit judges, lawyers and mental
health professionals. The sources for these guidelines include: "Sharing the Children" by Robert Adler; "The Custody Revolution" by Richard Warshak,
Ph.D.; "Child Custody Litigation" by Richard Gardner, M.D.; "Mom's House, Dad's House" by Isolina Ricci, Ph.D,; "What About the Children: A
Guide for Divorced and Divorcing Parents" by Jack Arbuthnot, Ph.D. and Donald A. Gordon, Ph.D.; lecture materials from "Child Custody" by Muriel
Sugarman, M.D; and guidelines from Nebraska, Indiana, Texas and Wyoming. As judges, attorneys and mental health professionals work with these
guidelines we anticipate they will be refined in future years. Please contact Justice Konenkamp if you have any suggestions for improvement.
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Last Modified: Tuesday, October 12, 1999 11:17:33