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In South Dakota, the Circuit Court is the only entity with authority to modify a child support obligation. This is usually done in response to a petition filed by one of the parents. Either parent or a representative may file a petition to modify their child support order. A support order may be modified without showing any change in circumstances if the order was entered prior to July 1, 2005.
An order entered after July 1, 2005 may be modified only:
Petition for Modification Form
A petitioner must provide the complete address of the other parent and enter the actual dollar amount of the support obligation being requested. If the petitioner is not sure what this amount should be, he or she should enter an amount that they believe the support order should be. See child support payment guidelines.
The completed, notarized petition, along with a financial statement, verification of income, Child Support Order Filing Data form UJS/DSS 089, copy of the most recent South Dakota court order or decree establishing child support and other necessary attachments must be filed with the:
When the petition and attachments are received by the Department of Social Services, the forms are reviewed for completeness and forwarded to the Clerk of Courts in the county where the support order was entered. The Circuit Court Judge will then appoint a referee to conduct a hearing.
The court appointed referee will send a notice of the modification hearing to both parties by mail and request the respondent to submit financial and other information to be considered in establishing the child support obligation. The notice will advise the parties of the time and place of the hearing. This usually occurs within 30 days from the date the petition is filed. This timeframe may vary depending on the workload of the referee and the location of the hearing. The hearing may be held in the county of the parent responding to the petition or in the county where the referee is located. The petitioner must appear at the hearing in person or by telephone or the referee may dismiss the modification request.
While there are no fees charged to either party, the referee or the court may assess costs under certain circumstances. The referee will designate the location of the hearing, typically a private office or local courthouse. Referees may hold hearings by phone if either party lives a long distance from the hearing site. Distant parties who wish to take part by phone must make arrangements with the referee in advance of the hearing.
At the hearing, the referee will obtain information and testimony from the parents regarding their financial resources and circumstances in order to determine the child support obligation as provided under the child support guidelines and laws. The parents should present any issues and evidence they want the referee to consider in setting the support order, i.e. deviations or additional factors they want considered in establishing the obligation.
It is not necessary for either party to obtain legal counsel for a modification hearing. However, they may do so if they desire, at their own expense. Persons not licensed as attorneys by the South Dakota Bar Association may not represent the parties at a modification hearing.
Once a petition is filed with the Clerk of Courts, the parties may not enter into a voluntary agreement for payment of child support without the referee’s written approval.
After the modification hearing, the referee will prepare and file a report and a recommended order for support with the Circuit Court. Both parties are sent a copy of the referee’s report and the recommended order.
In determining the support obligation, the combined monthly net incomes of both parents and number of children must be used in determining the obligation and divided proportionately between the parties based on their respective net incomes. The amount of child support to be paid by the noncustodial parent is determined by finding the category on the child support payment schedule closest to the combined monthly net incomes for both parents and apportioning that amount between the parents on the basis of their respective incomes.
If the obligation using only the noncustodial parent’s monthly net income is within the bolded areas of the schedule, that amount must be compared to the noncustodial parent’s proportionate share using both parents’ monthly net incomes. The lesser amount establishes the noncustodial parent's child support order.
The referee may also consider deviations provided by the parents and additional issues raised by either party such as child care costs, health insurance coverage, abatements for visitation or shared parenting and travel costs for visitation.
Within 10 days of the referee’s report and recommended order, either party may file objections contesting the recommended child support order. Objections must be in writing and filed with the Clerk of Courts in the county that issued the order being modified. The Circuit Court may require a transcript of the referee hearing to be filed with the written objections.
If objections are filed within 10 days by one of the parties, the other party must have an additional five days from the date of service of the objections to file additional objections with the court. The Circuit Court then schedules a hearing to consider the objections to the referee’s report. This hearing is based solely on the record established at the referee’s hearing. That is, the Court may not consider any new evidence or information, only the issues and evidence presented at the referee’s modification hearing. After the court hearing on the objections, the Circuit Court may adopt, modify, or reject and remand the referee’s report with instructions to the referee for further hearing.
If neither party files objections to the referee’s report and recommended order within 10 days of the referee’s report, the Circuit Court will enter the order. If objections are filed, the court will enter an order after the court hearing on the objections. A copy of the order will be sent to both parties by certified mail.
A party who disagrees with the court order may appeal the decision to the South Dakota Supreme Court within 30 days.
The Department of Social Services is the central payment center for the state and handles all disbursements. Once the modified order is filed with the Clerk of Courts, all future child support payments must be made payable to the Division of Child Support and mailed to:
Under the provisions of the Uniform Interstate Family Support Act, an order for child support issued in another state may be registered in South Dakota for modification if certain conditions are met as specified by South Dakota law. (SDCL 25-9B-611 or 25-9B-613).
For further information about modification of out-of-state child support orders, contact your attorney or the Division of Child Support at 605-773-3641.