Unmarried Custody Rights in South Dakota

By John Comerford
Parents love their children, regardless of their marital status at the time of birth.

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Married or unmarried, parents love their children. However, in the case of unmarried parents, specific laws may prevent a parent from making decisions regarding his child's life, health and education or having access to his child. Under South Dakota law, the birth of a child to unmarried parents is legally different than that of a child with married parents.

Custody Rights of Unmarried Mothers

In South Dakota, unmarried mothers have a different legal status than married ones.

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South Dakota law does grant custody of a child born to an unmarried woman to that woman, but state law does not order courts to assume that mother's custody to be in the best interests of the child. Admittedly, the only reasons specifically stated for the court to revoke an unwed mother's custody are those of neglect or abuse, but the wording of the law does leave the court with broad discretion for when to apply it. The courts themselves, however, may be willing to uphold the custody rights of such mothers. In the case of Feist and Feist v. Feist, Fousek and South Dakota, the South Dakota Supreme Court first denied the custody request of the mother of an unwed mother by virtue of a later agreement between the parents and grandparents of the mother's child; then the court later denied a second custody request by the mother's mother by asserting the written rationales for transferring custody from a mother to a non-parent to be unconstitutionally vague.

Custody Rights of Unmarried Fathers

South Dakota law gives unmarried fathers the legal means to fight for their parental rights.

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Without a court ruling to the contrary, South Dakota law awards custody of a child born to unmarried parents to the mother. The courts do reserve the right to award custody to either parent, but the unmarried father of a child can only gain custody through court action, and to do so he would have to prove both the existence of a strong parental bond with the child and a great failure on the mother's part to fulfill her parental responsibilities. He may be able to maintain some parental rights, however. The courts can uphold visitation -- a form of physical custody -- or other such rights even after a granting of custody to a non-parent.

Injunctions Possible Against Any Parent

Courts reserve the right to prevent any parent from certain behavior.

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In South Dakota, a court with jurisdiction can forbid a parent from moving a child on the grounds that a change in location would not be in the child's best interest. The court also has the right to make decisions regarding custody, child support and visitation when facing the absence or non-participation of one or more parties to the matter. Lastly, the court reserves the right to appoint counsel to represent the child in any court matters, thus limiting a parent's ability to represent that child as a part of her own side of a court case.

Considerations

In South Dakota, unmarried parents can participate in the lives of their children.

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In South Dakota, unmarried mothers do at least appear to have greater custody rights than unmarried fathers, but their rights are not equal to those of married parents. Furthermore, unmarried fathers do have the means to plead for custody. In order to do so, however, they have to prove not only their superiority as a parent over their child's mother, but they must also prove the mother's genuine inadequacy. Given these circumstances, unmarried fathers may prefer to seek custody by reaching an agreement for joint custody with the child's mother.

About the Author

John Comerford writes for "Discuss America," having previously worked for the same editor on Yahoo's "Third Party and Independents" page. He has written for "The South Shore Skeptic" and he won 1st place in WriteOn's 2010 competition for a travel article on a place the writer had never visited.

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