DRAFT - 2005 Proposed Legislation (8/20/04)
FOR AN ACT ENTITLED, An Act to revise certain provisions relating to parenting guidelines, child custody, parent education and parenting time enforcement.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Section 1. That § 25-4A-10 be amended to read as follows:
25-4A-10. The South Dakota Supreme Court shall promulgate court rules establishing standard guidelines to be used statewide for child visitation in divorce or separate maintenance actions or any other custody action or proceeding. The standard guidelines shall reflect a parenting schedule that allows a child to have a minimum of 182 days (including overnights) with each parent, unless the parties agree otherwise. These guidelines shall provide a framework for child visitation including frequency and time for child visitation; hours or days of visitation; definitions for weekends, holidays, birthdays, and other special occasions; and time periods for summer visitations. In establishing the standard guidelines, the court may consider varying ages and circumstances of children and treat varying ages and circumstances differently.
Section 2. That § 25-4A-11 be amended to read as follows:
25-4A-11. Upon the filing of a summons and complaint for divorce or separate maintenance or any other custody action or proceeding, the plaintiff shall also file and serve upon the defendant a copy of the standard guidelines. The standard guidelines attached to the summons shall become an order of the court upon fulfillment of the requirements of service.
Any minor child of the marriage shall remain in the custody of the parent who has been the primary caregiver for the minor child for the majority of time in the thirty days preceding the filing of the summons and complaint, unless the parties agree otherwise. The standard guidelines shall apply and continue in effect, unless the parties agree, or the court orders otherwise. Imposition of the standard guidelines creates no presumption as to who shall be awarded custody at any hearing.
Section 3. That chapter 25-4 be amended by adding thereto a NEW SECTION to read as follows:
In any custody and visitation proceeding, the court shall consider the factors below. If the court deviates from the standard guidelines in a temporary or final custody and visitation order, the court shall state on the record why its findings are in the best interest of the child, using the following factors as a guide:
(1) The likelihood of serious physical or emotional harm to the child if placed in the parent's custody;
(2) A history of abuse or neglect as defined in § 26-8A-2, domestic abuse as defined in § 25-10-1, or alcohol or drug abuse;
(3) The ability of either parent to provide for a child's physical, emotional, and other needs over a significant period of time;
(4) The establishment of a bonded relationship between the child and either parent, sufficient to cause emotional harm to the child;
(5) The impact of geographic separation or other situation that would cause significant instability and insecurity in the child's future.
(6) The ability of both parties to cooperate and communicate regarding the children and whether either party unreasonably refuses to cooperate or communicate with the other party;
(7) The pattern of involvement of the parties with the child that does not reflect a system of values, time commitment, and mutual support in raising the child;
(8) The ability of either party to encourage the sharing of love, affection, and contact between the child and the other party;
(9) An impairment to a child's right to an education while in the custody of either parent;
(10) The child's preference given sufficient age and mental capacity; and
(11) Whether either parent has abandoned, forfeited or surrendered their parental rights over the child.
Section 4. That chapter 25-4 be amended by adding thereto a NEW SECTION to read as follows:
Parent education classes. Within 30 days upon the filing of a summons and complaint for divorce or any other custody action or proceeding, the involved parties to an action involving a minor child or children shall attend parent education classes unless the court determines that attendance is not appropriate or necessary based on the conduct or circumstances of the parties, including, but is not limited to, situations where the parties have stipulated to the custody and visitation of the child, or a finding by a court with jurisdiction after all parties have received notice and an opportunity to be heard that the safety of a party or child may be endangered by attending the educational classes. The education program shall instruct and educate parents about the effects of divorce and custody disputes on their children, teach parents ways to help their children and minimize their trauma, assist parents in the development of a parenting plan, and facilitate mediation for disputes. The court shall, by order, establish sanctions for failure to attend.
Section 5. That § 25-4A-2 be amended to read as follows:
25-4A-2. Written request for order to show cause for violation of visitation or custody decree -- Hearing date. Any party granted visitation or custody rights to a child by a court decree may request the court to enter an order to show cause why the other party should not be held in contempt of court for violation of the decree relating to visitation or custody of the child. Upon receipt of a written request for an order to show cause, the court
may shall issue such an order and forthwith schedule a hearing date not less than thirty days in the future. No particular formality may be required of the moving party in making a written request for an order to show cause.
Section 6. That § 25-4A-5 be amended to read as follows :
25-4A-5. Violation of custody or visitation decree -- Punishment.
Each violation of the custody or visitation provisions of a court decree may be punished by imprisonment in jail not to exceed three days, by fine not to exceed one thousand dollars, or both. If, based on all the facts and circumstances, the court finds after a hearing that a parent, without proper cause, has failed to comply with the visitation or custody decree, the court shall order:
(1) The noncomplying parent to provide the moving party additional time with the child. The additional time shall be equal to the time missed with the child, due to the parent's noncompliance;
(2) The noncomplying parent to pay, to the moving party, all court costs and reasonable attorneys' fees incurred as a result of the noncompliance, and any reasonable expenses incurred in locating or returning the child;
(3) The noncomplying parent to pay a civil penalty of not less than the sum of one hundred dollars.
Upon finding of subsequent violations of the custody or visitation provisions of a court decree, the court shall order:
The noncomplying parent to provide the moving party additional time with the child that is twice the amount of time missed with the child, due to the parent's noncompliance;
The noncomplying parent to pay, to the moving party, all court costs and reasonable attorneys' fees incurred as a result of the noncompliance, and any reasonable expenses incurred in locating or returning a child; and
The noncomplying parent to pay a civil penalty of not less than five hundred dollars.
The court remedy may also include, but not be limited to:
Participation by the noncomplying parent in counseling or a parent education class which stresses the importance of providing a child with a continuing and meaning relationship with both parents;
Community service if the order will not interfere with the welfare of the child;
A financial burden to the noncomplying parent for promoting frequent and continuing contact between the child and the aggrieved party;
Requiring the noncomplying parent to post bond or security to ensure future compliance with the court's custody or visitation order;
Ordering the noncomplying parent to pay the cost of counseling to reestablish the parent-child relationship between the aggrieved party and the child.
May change custody if the change is in the best interests of the child;
Imposition of imprisonment in jail not to exceed three days, by fine not to exceed one thousand dollars, or both.
Upon motion for violation of visitation or custody decree, if the court finds the motion was brought without merit, the court shall order the moving party to pay to the nonmoving party, all costs, reasonable attorneys' fees and a civil penalty of not less than one hundred dollars.