concurring in part and dissenting in part.
I concur with the majority opinion except for the standard of proof that it establishes for deciding whether the guardianship should continue. I agree with the majority opinion that because of the parental preference, the burden shifts to the nonparent; I believe, however, the standard to be applied should be the clear and convincing standard. It is undisputed that parents have a fundamental right to the custody and control of their children. Troxel v. Granville, 530 U.S. 57, 65-66,120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). The United States Supreme Court has described this interest as “perhaps the oldest of the fundamental liberty interests recognized by this Court.” Id. at 65, 120 S.Ct. 2054.
The Court has frequently emphasized the importance of the family. The rights to conceive and to raise one’s children have been deemed “essential,” “basic civil rights of man,” and “rights far more precious ... than property rights.” “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Ninth Amendment.
Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) (citations omitted). The pursuit of happiness guaranteed by the North Dakota Constitution includes “the right to enjoy the domestic relations and the privileges of the family and the home ... without restriction or obstruction ... except in so far as may be necessary to secure the equal rights of others.” Hoff v. Berg, 1999 ND 115, ¶ 10, 595 N.W.2d 285 (citation omitted); N.D. Const. art. I, § 1. This right is protected and insured by the due process clause of our Constitution. N.D. Const. art. I, § 12. We have repeatedly addressed the constitutional nature of parents’ rights in raising their children.
Parents have a fundamental, natural right to their children which is of constitutional dimension. In re L.F., 1998 ND 129, ¶ 9, 580 N.W.2d 573; Kleingartner v. D.P.A.B., 310 N.W.2d 575, 578 (N.D.1981). The right is paramount. In re R.D.S., 259 N.W.2d 636, 638 (N.D.1977). A parent’s paramount and constitutional right to the custody and companionship of their children is superior to that of any other person. Patzer v. Glaser, 396 N.W.2d 740, 743 (N.D.1986); Hust v. Hust, 295 N.W.2d 316, 318 (N.D.1980); Boeddeker v. Reel, 517 N.W.2d 407, 409 (N.D.1994).
Hoff, 1999 ND 115, ¶ 10, 595 N.W.2d 285.
[¶ 27] Shelly has not been proven to be an unfit parent; indeed, there is no sug-*411gestión in the record that she is an unfit parent. Recognizing the fundamental nature of her right to raise her child, to continue the guardianship, the Smestads must overcome the presumption that parents have a superior right to the custody of their children and must prove by clear and convincing evidence it is in the child’s best interest to continue the guardianship. I am persuaded by the reasoning of Matter of Guardianship of Blair, 662 N.W.2d 371, No. 2-950, 2003 WL 182981 at *5, 2003 Iowa App. LEXIS 102, at *13 (Iowa Ct.App. Jan. 29, 2003) that this standard is necessary to accommodate the fundamental rights of the parent under circumstances where the parent has not been adjudicated unfit.
The majority opinion indicates that because the statute does not impose a burden of proof, the standard must be the preponderance of evidence. The statute applicable to the removal of a guardian does not impose a standard of proof. N.D.C.C. § 30.1-27-10. However, the statutory conditions for appointment of a guardian and the effect of the appointment on the rights of the parent do suggest that an elevated standard of proof should apply. Under N.D.C.C. § 30.1-27-04, “[t]he court may appoint a guardian for an unmarried minor if all parental rights of custody have been terminated or suspended by circumstances or prior court order.” The statute applicable to the termination of parental rights, N.D.C.C. § 27-20^44, does not contain an explicit directive on the burden of proof yet it is constitutionally required that courts apply a burden of clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745, 747-78, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Section 30.1-27-09, N.D.C.C., recognizes that “[a] guardian of a minor has the powers and responsibilities of a parent who has not been deprived of custody of the parent’s minor and un-emancipated child.” Section 14-09-20, N.D.C.C., states “[t]he authority of a parent ceases: 1. Upon the appointment by a court of a guardian of the person of a child ...” The majority asserts the appointment and continuation of a guardianship is not a termination of the parental rights. But it is a clear suspension of those parental rights that the Stanley court has described as “essential,” “basic civil rights.” 405 U.S. at 651, 92 S.Ct. 1208. Where a parent has not been proven unfit, the continuing suspension of those fundamental rights requires that the burden of proof be by clear and convincing evidence that it is in the child’s best interest.
[¶ 29] Carol Ronning Kapsner