Child Support

The Commission has under consideration updates to the child support guidelines schedule. The guidelines provide the base amount of child support obligations based on income and calculated for the number of children.

Built into the current schedule is a Self-Support Reserve of $871. The Self-Support Reserve is the amount of income for the subsistence needs of the obligated parent with a limited ability to pay. The Commission is considering increasing the Self-Support Reserve to $1,148 based on the federal poverty level adjusted for South Dakota prices.

The Commission is also considering two options for the child support schedule:

• Utilizing inflationary changes in prices for the Midwest Region from July 2021 to March 2025.

• Utilizing those inflationary increases as well as adjusting for income changes in South Dakota (as determined by realigning national data to South Dakota incomes using 2023 Census data).

Side-by-side comparisons of Options 1 and 2 (including adjustment of the Self-Support Reserve) with the existing schedule:

• 1-3 children
• 4-6 children

Prior-period support length of time
South Dakota Codified Laws 25-7A-21.1 and 25-8-5 currently allows for prior period support to be established back 3 years from date of application with any Title IV-D agency, date of filing with a court of competent jurisdiction, or date of written demand served on the payor of support.  SDCL 25-8-5 is in relation to paternity proceedings.

The Commission is considering four options:

1. Limiting prior-period support to one year calculated at the state’s current minimum wage;
2. Eliminating prior-period support;
3. Leaving prior-period support at 3 years, but calculating at the state’s current minimum wage; or
4. Leaving prior-period support at 3 years, but only calculating using the state’s current minimum wage if actual income information is not available.

Age of emancipation for child support
South Dakota Codified Law 25-5-18.1 establishes a legal duty for parents to support their child until the child turns 18 or until 19 if the child is a full-time student in a secondary school. With an increasing number of children enrolled in alternative school or instruction programs, this requires DCS to determine if the alternative school/instruction meets the definition of full-time student.

The Commission is considering removing the school attendance language and setting the age of emancipation for child support cases at 19. As 74.65% of high school students in South Dakota turn 18 prior to their graduation, setting the emancipation age for child support at 19 helps ensure financial support continues through the completion of secondary education – without placing an additional burden on parents to provide enrollment verification.

Adjudication of paternity
Under state statute, child support referees do not have legal authority to establish paternity. When DNA testing has been completed and the Notice of Support Debt has been issued, even after a hearing with the referee, the resulting support order does not legally establish paternity. As a result, the father's name cannot be added to the child’s birth certificate.

A similar situation is created when a second child is born when a child support order is already in place. If DNA testing is performed for the new child, the parents must request a modification of the existing support order. This modification also goes before a child support referee, who still may not have the authority to legally establish paternity.

The Commission is considering an amendment to SDCL 25-7A-6 stating “If genetic testing showing a 99% or higher likelihood of paternity or a Voluntary Acknowledgment of Paternity are presented as evidence during the hearing, the referee shall make a finding of adjudication of paternity and include such finding in the report to the court.”

Minimum order amounts
SDCL 25-7-6.2 states that child support obligations must be set using the lesser of the amount shown in the schedule for the non-custodial parent’s net income or the proportionate share using both parent’s monthly net incomes. Inconsistency in order amounts have resulted for noncustodial parents, including those who are incarcerated, with an income of $0.

The Commission is considering requiring that in all cases obligations may not be less than the base obligation amount established in the schedule.

Obligations of incarcerated payors of support upon release
In some cases, child support obligations of incarcerated payors of support have been ordered by the court to automatically reinstate to the pre-incarcerated amount upon release from incarceration. This approach conflicts with the 2021 Commission on Child Support’s recommendation that payors file a Petition for Modification upon release, to facilitate post-release reviews that reflect the current financial circumstances of the payor.

The Commission is considering an amendment to SDCL 25-7-6.13 to codify that child support obligations do not revert to the pre-incarceration amount upon release and that a Petition for Modification must be filed to adjust the obligation post-release.