[SD] Do I need to file for sole custody of my child if I believe the child's father is unfit?
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Here's what you need to know:
1. Current Rights in South Dakota
- As the biological mother and since paternity hasn’t been legally established, you have sole legal and physical custody under SDCL § 25-5-10.
- He has no legal rights to custody or visitation without a court order or signed acknowledgment of paternity.
2. Filing for Custody
- Even though you already have custody, filing a formal Petition for Custody is wise—especially now that you’ve revoked his visitation.
- File in the circuit court in your county.
- Needed forms:
- Summons and Complaint for Custody
- Financial Affidavit
- Parenting Plan (even if proposing sole custody)
- Request for Hearing (if applicable)
Forms are available via the South Dakota Unified Judicial System website.
3. Child Support and Custody Risk
- Filing for child support can trigger a paternity action, and he may seek custody or visitation.
- However, the court considers the best interest of the child.
- You can submit evidence of drug use, instability, and request:
- Supervised visitation or
- Temporary suspension of contact
4. If He Files Later
- He’ll need to legally establish paternity via court or voluntary acknowledgment (SDCL § 25-5-10).
- You’ll be able to oppose custody or visitation based on his unfitness.
5. Summary
- File for custody to formalize your sole custody rights.
- Avoid filing for child support right now if you're worried it will legally involve him.
- Gather documentation of his drug use/unfitness in case he files later.
- You can also request a temporary no-contact order during the custody hearing.
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I need help filing for custody of a minor in South Dakota. The child was born out of wedlock.
I understand. Have you already established paternity for the child?
No, I am the mother.
Are you looking to establish sole custody or joint custody?
Sole.
Is there anything else the lawyer should know before I connect you?
I don't think so.
Hello. My name is Richard, and I’ve been a licensed attorney for over 25 years. Is there a custody issue with the father?
I had the baby out of wedlock. The father and I had a verbal agreement. I recently found out he’s still using drugs, and I told him he can’t see the baby anymore. He also stopped paying the child support we agreed on verbally. I’m worried if I request child support, it’ll trigger a custody claim, and he’s unfit. I’m scared I’ll be forced to let him have custody.
Here's what you need to know:
1. Current Rights in South Dakota
- As the biological mother and since paternity hasn’t been legally established, you have sole legal and physical custody under SDCL § 25-5-10.
- He has no legal rights to custody or visitation without a court order or signed acknowledgment of paternity.
2. Filing for Custody
- Even though you already have custody, filing a formal Petition for Custody is wise—especially now that you’ve revoked his visitation.
- File in the circuit court in your county.
- Needed forms:
- Summons and Complaint for Custody
- Financial Affidavit
- Parenting Plan (even if proposing sole custody)
- Request for Hearing (if applicable)
Forms are available via the South Dakota Unified Judicial System website.
3. Child Support and Custody Risk
- Filing for child support can trigger a paternity action, and he may seek custody or visitation.
- However, the court considers the best interest of the child.
- You can submit evidence of drug use, instability, and request:
- Supervised visitation or
- Temporary suspension of contact
4. If He Files Later
- He’ll need to legally establish paternity via court or voluntary acknowledgment (SDCL § 25-5-10).
- You’ll be able to oppose custody or visitation based on his unfitness.
5. Summary
- File for custody to formalize your sole custody rights.
- Avoid filing for child support right now if you're worried it will legally involve him.
- Gather documentation of his drug use/unfitness in case he files later.
- You can also request a temporary no-contact order during the custody hearing.
When I submit the forms, will he be served?
Yes, you’ll need to have the sheriff or a process server serve him.
If he doesn’t show up at the court hearing, does custody go to me automatically?
Yes. You already have sole custody as the natural mother. Unless there’s a court order otherwise, that remains.
But he could still file for custody later, right? Even if he hasn’t seen the child in six months?
Correct.
And if I file for child support, that will trigger paternity and custody?
Yes, that’s correct.
If you were in my shoes and worried about him getting visitation after court, would you leave it or file now?
If you want legal certainty and peace of mind, I recommend filing now.
Okay, thanks.
No problem. Thanks again for using AskaLawyer.
