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2010 S.D. 104
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
LEON R. FEIST and
BECKY LEMIEUX-FEIST, Petitioners and Appellees,
v.
ZACHARY E. LEMIEUX-FEIST, Respondent,
and
ASHLEY FOUSEK, Respondent and Appellee,
and
STATE OF SOUTH DAKOTA, Intervenor and Appellant.
* * * *
APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA
* * * *
HONORABLE MERTON B. TICE, JR.
Judge
* * * *
DEBRA D. WATSON of Attorney for petitioners
Watson Law Office, P.C. and appellees Feist &
Rapid City, South Dakota Lemieux-Feist.
COURTNEY R. STOTTLER
PATRICK M. GINSBACH of
Farrell, Farrell and Ginsbach, P.C. Attorneys for respondent
Hot Springs, South Dakota and appellee Fousek.
MARTY J. JACKLEY
Attorney General
KIRSTEN E. JASPER
Assistant Attorney General Attorneys for intervenor
Pierre, South Dakota and appellant.
* * * *
ARGUED ON OCTOBER 5, 2010
OPINION FILED 12/29/10
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MEIERHENRY, Justice
[¶1.] We must decide in this case whether South Dakota’s third party
custody statutes are constitutional. The two statutes in question are SDCL 25-5-29
and 25-5-30. The circuit court found these statutes unconstitutional because they
do not specifically require “a finding of parental unfitness prior to awarding custody
to a non-parent.” We hold that the statutes can be construed constitutionally, and
therefore, the circuit court must be reversed.
FACTS
[¶2.] Zachary Lemieux-Feist (Father) and Ashley Fousek (Mother) had a
daughter (A.L.F.). Father and Mother had a strained relationship that dissolved
after A.L.F. was born. Leon Feist and Becky Lemieux-Feist (Grandparents) filed a
petition against Father and Mother to gain custody of A.L.F. under SDCL ch. 25-5.
Before the circuit court decided whether to grant Grandparents’ petition, an
agreement was reached between Father, Mother, and Grandparents. This
agreement resulted in joint legal custody between Father and Mother, with primary
physical custody with Mother and visitation for Grandparents. The circuit court
approved this agreement. Grandparents later filed another petition to gain custody
of A.L.F. Mother filed a motion to dismiss this petition, arguing that SDCL 25-5-29
and 25-5-30 are unconstitutional. The circuit court granted Mother’s motion to
dismiss. The circuit court declared these two South Dakota statutes
unconstitutional because they “contain no requirement for a finding of parental
unfitness prior to awarding custody to a non-parent.” The circuit court based its
ruling on Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000)
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(plurality opinion). The circuit court did not enter findings of fact or consider
whether the statutes at issue were capable of constitutional interpretation or
application.
ANALYSIS
[¶3.] This Court reviews “a challenge to the constitutionality of a statute [ ]
de novo.” Currey v. Currey, 2002 S.D. 98, ¶ 7, 650 N.W.2d 273, 276 (citations
omitted). Therefore no deference is given to the circuit court. In re S.M.N., T.D.N.,
and T.L.N., 2010 S.D. 31, ¶ 10, 781 N.W.2d 213, 218. If a statute “can be construed
so as not to violate the [C]onstitution, we will adopt such a construction.” State v.
Page, 2006 S.D. 2, ¶ 73, 709 N.W.2d 739, 763 (citations omitted). The party
challenging the constitutionality of a statute bears a heavy burden: “There is a
strong presumption that the laws enacted by the [L]egislature are constitutional
and that presumption is rebutted only when it clearly, palpably and plainly appears
that the statute violates a provision of the [C]onstitution.” Burlington N. R.R. Co. v.
Green, 2001 S.D. 48, ¶ 18, 624 N.W.2d 826, 831 (citations omitted).
[¶4.] SDCL 25-5-29 and 25-5-30 prescribe the circumstances permitting non-
parents to seek visitation or custody of a child. See S.M.N., T.D.N., and T.L.N.,
2010 S.D. 31, ¶ 16, 781 N.W.2d at 220. These statutes require that the person
seeking custody have a relationship with the child as “a primary caretaker” or “a
parental figure” or that person and the child have “otherwise formed a significant
and substantial relationship.” SDCL 25-5-29. These statutes also establish that “a
parent’s presumptive right to custody” may be rebutted only by proof of
abandonment or neglect, surrender, abdication of parental rights, or “other
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extraordinary circumstances [ ] result[ing] in serious detriment to the child.” Id.
SDCL 25-5-29, in its entirety, provides as follows:
Except for proceedings under chapter 26-7A, 26-8A, 26-8B, or
26-8C, the court may allow any person other than the parent of
a child to intervene or petition a court of competent jurisdiction
for custody or visitation of any child with whom he or she has
served as a primary caretaker, has closely bonded as a parental
figure, or has otherwise formed a significant and substantial
relationship. It is presumed to be in the best interest of a child
to be in the care, custody, and control of the child’s parent, and
the parent shall be afforded the constitutional protections as
determined by the United States Supreme Court and the South
Dakota Supreme Court. A parent’s presumptive right to custody
of his or her child may be rebutted by proof:
(1) That the parent has abandoned or persistently neglected
the child;
(2) That the parent has forfeited or surrendered his or her
parental rights over the child to any person other than
the parent;
(3) That the parent has abdicated his or her parental rights
and responsibilities; or
(4) That other extraordinary circumstances exist which, if
custody is awarded to the parent, would result in serious
detriment to the child.
SDCL 25-5-30 further defines the extraordinary circumstances that constitute
serious detriment to a child:
Serious detriment to a child may exist whenever there is proof of
one or more of the following extraordinary circumstances:
(1) The likelihood of serious physical or emotional harm to
the child if placed in the parent’s custody;
(2) The extended, unjustifiable absence of parental custody;
(3) The provision of the child’s physical, emotional, and other
needs by persons other than the parent over a significant
period of time;
(4) The existence of a bonded relationship between the child
and the person other than the parent sufficient to cause
significant emotional harm to the child in the event of a
change in custody;
(5) The substantial enhancement of the child’s well-being
while under the care of a person other than the parent;
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(6) The extent of the parent’s delay in seeking to reacquire
custody of the child;
(7) The demonstrated quality of the parent’s commitment to
raising the child;
(8) The likely degree of stability and security in the child’s
future with the parent;
(9) The extent to which the child’s right to an education
would be impaired while in the custody of the parent; or
(10) Any other extraordinary circumstance that would
substantially and adversely impact the welfare of the
child.
The circuit court reviewed these two statutes in light of Troxel and held them to be
constitutionally inadequate because they do not specifically require a finding of
parental unfitness.
[¶5.] Troxel involved a Washington visitation statute that permitted “any
person” to petition for visitation rights “at any time.” 530 U.S. at 61, 120 S.Ct. at
2057-58. The Washington Supreme Court determined that the statute was
unconstitutional because “parents have a right to limit visitation of their children
with third persons, and that between parents and judges, the parents should be the
ones to choose whether to expose their children to certain people or ideas.” Id. at
63, 120 S.Ct. at 2059 (citations omitted).
[¶6.] The Troxel plurality, in affirming the Washington Supreme Court,
recognized that parents have an interest in the care, custody, and control of their
children. Id. at 65, 120 S.Ct. at 2060 (citing Meyer v. Nebraska, 262 U.S. 390, 399,
401, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) (holding that the liberty interest protected
by the Due Process Clause includes a parent’s right to “establish a home and bring
up children” and to “control the education of their own [children].”); Pierce v. Soc. of
Sisters, 268 U.S. 510, 534-35, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) (recognizing
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parents’ liberty interests to “direct the upbringing and education of children under
their control.”); Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645
(1944) (“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.”). Troxel also recognized that
the relationship between “parent and child is constitutionally protected” under the
Fourteenth Amendment Due Process Clause. Id. at 66, 120 S.Ct. at 2060 (citing
Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978)). A
majority of the Court recognized parents’ fundamental right to direct the
upbringing of their children. See id. at 66, 120 S.Ct. at 2060; Id. at 77, 120 S.Ct. at
2066 (Souter, J., concurring); Id. at 80, 120 S.Ct. at 2068 (Thomas, J., concurring);
Id. at 86, 120 S.Ct. at 2071 (Stevens, J., dissenting).
[¶7.] Unlike the circuit court, we do not read Troxel as specifically requiring
a finding of parental unfitness in third party visitation or custody cases. As we
have noted before, Troxel only requires that “special weight” be given to a fit
parent’s determinations regarding her children. See id. at 70, 120 S.Ct. at 2062.
See, e.g., In re A.L. and S.L.-Z., 2010 S.D. 33, ¶ 20, 781 N.W.2d 482, 487
(recognizing Troxel’s “special weight” requirement); Clough v. Nez, 2008 S.D. 125, ¶
21, 759 N.W.2d 297, 306 (same).
[¶8.] We recently applied Troxel to South Dakota’s grandparent visitation
statutes. See A.L., 2010 S.D. 33, ¶ 20, 781 N.W.2d at 487. As noted in Clough, the
application of Troxel to visitation statutes also applies to custody statutes. As such,
our reasoning in A.L. applies here. In Clough, this Court noted that “[t]he right of
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visitation derives from the right of custody and is controlled by the same legal
principles.” Clough, 2008 S.D. 125, ¶ 15, 759 N.W.2d at 304 (citing Cooper v.
Merkel, 470 N.W.2d 253, 255 (S.D. 1991)). Therefore the same legal principles
applied in A.L. apply to South Dakota’s third party custody statutes (SDCL 25-5-29
and 25-5-30). See Clough, 2008 S.D. 125, ¶ 15, 759 N.W.2d at 304.
[¶9.] In A.L., we found South Dakota’s grandparent visitation statutes to be
facially constitutional but unconstitutionally applied. 2010 S.D. 33, ¶ 19, 781
N.W.2d at 487. 1 Constitutional application requires “three pieces from Troxel” as
follows:
First, parents have a “liberty interest” in the rearing of their
children. Fit parents are presumed to act in the best interest of
their children. Second, given a parent’s liberty interest in
childrearing, the [S]tate will “normally” have no reason to
question parental decisions. Troxel emphasized that its ruling
did not rest on a fit parent’s “normal” right to be free of [S]tate
intervention in parenting decisions, but instead rested on a
“combination of . . . factors.” Third, the Court established a
“special-weight” requirement. The trial court in Troxel failed to
1. In South Dakota, grandparent visitation is controlled, in part, by SDCL 25-4-
52, which provides:
The circuit court may grant grandparents reasonable rights of
visitation with their grandchild, with or without petition by the
grandparents, if the visitation is in the best interests of the
grandchild and:
(1) If the visitation will not significantly interfere with
the parent- child relationship; or
(2) If the parent or custodian of the grandchild has
denied or prevented the grandparent reasonable
opportunity to visit the grandchild.
The circuit court shall issue any orders necessary to enforce or to
protect visitation rights granted pursuant to this section.
As used in this section, the term grandparents includes great-
grandparents.
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give “at least some special weight” to the mother’s determination
of her daughters’ best interest.
Id. ¶ 20, 781 N.W.2d at 488 (emphasis added). We said, “[i]n light of Troxel, the
best interests determination cannot be left solely to the [circuit] court’s discretion
without considering and giving deference to a fit parent’s decision.” Id. After
applying Troxel, we ultimately reversed the circuit court’s award of visitation to
grandparents because “[n]othing in the circuit court’s written findings or
conclusions indicated that the court gave any special weight to the parents’ decision”
regarding visitation. Id. ¶ 16, 781 N.W.2d at 486 (emphasis added). But we
declared that Troxel requires that “special weight” be given to fit parents’
determinations concerning their children. See id. 2
[¶10.] In Clough, a non-parent sought visitation rights under the statutes
now challenged (SDCL 25-5-9 and 25-5-30). See 2008 S.D. 125, ¶ 6, 759 N.W.2d at
301. Although the child’s mother did not directly challenge the constitutionality of
SDCL 25-5-29 and 25-5-30 in Clough, she claimed that Troxel required the trial
court to give “deference or special weight to her determinations” regarding the child.
2008 S.D. 125, ¶ 21, 759 N.W.2d at 306. In that case, Keith Clough sought
visitation with a child he allegedly fathered. Clough claimed that he provided care
during the child’s first four years of life. DNA evidence, however, proved the child
was not his biological child. Id. In determining whether Clough should have been
granted visitation, we recognized that “the special weight and presumption
2. In A.L., we declined to address how Troxel’s standards apply when the parent
is unfit. See 2010 S.D. 33, ¶ 23 n.6, 781 N.W.2d at 489 n.6 (“We express no
opinion on how [Troxel’s] standards should be applied in a grandparent
visitation proceeding where the objecting parent is unfit[.]”).
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discussed in Troxel . . . [wa]s only applicable in situations involving a fit parent,
[and that] presumption disappears in situations where there are also extraordinary
circumstances rebutting that parent’s presumptive right[.]” Id. ¶ 22, 759 N.W.2d at
306. This Court further stated that “to adequately protect the natural parent’s
fundamental liberty interest in the custody of her children, extraordinary
circumstances must denote more than a simple showing of the children’s best
interests.” S.M.N., T.D.N., and T.L.N., 2010 S.D. 31, ¶ 21, 781 N.W.2d at 223
(citing Clough, 2008 S.D. 125, ¶ 10, 759 N.W.2d at 302).
[¶11.] Based on the presence of extraordinary circumstances in Clough, this
Court affirmed the trial court’s determination that Clough be awarded visitation
with the child. Clough, 2008 S.D. 125, ¶ 23, 759 N.W.2d at 307. In analyzing the
issue and interpreting SDCL ch. 25-5, we concluded that “extraordinary
circumstances” justified not giving the child’s mother the “special deference
normally afforded a fit parent.” Id. ¶ 23. We interpreted the language of Troxel to
mean that “deference and special weight must be given only when a fit parent has
adequately cared for his or her children, i.e., when no extraordinary circumstances
apply. When extraordinary circumstances have been shown, the presumption
disappears.” Id. ¶ 22, 759 N.W.2d at 306-07. See A.L., 2010 S.D. 33, ¶ 20, 781
N.W.2d at 487.
[¶12.] Although we do not interpret Troxel to require a finding of parental
unfitness, we note that parental unfitness is implicit in many of the circumstances
the South Dakota Legislature identified in SDCL 25-5-29 and 25-5-30. See SDCL
25-5-29 (1-3). See also SDCL 25-5-30 (1-3) & (6-9). Even so, the Legislature has
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provided a mechanism for extraordinary circumstances to justify awarding custody
or visitation to a third party over a fit parent’s objections. SDCL 25-5-29(4); SDCL
25-5-30.
[¶13.] Our past cases demonstrate that SDCL 25-5-29 and 25-5-30 can be
interpreted and applied without offending the constitutional protections outlined in
Troxel. SDCL 25-5-29 requires that “it [be] presumed to be in the best interest of a
child to be in the care, custody, and control of the child’s parent.” Only when
parental unfitness or “extraordinary circumstances” are present may this
presumption be rebutted. See SDCL 25-5-29 (“A parent’s presumptive right to
custody of his or her child may be rebutted by proof: . . . (4) That other
extraordinary circumstances exist which, if custody is awarded to the parent, would
result in serious detriment to the child.”). SDCL 25-5-29 and 25-5-30 can be
construed constitutionally because these statutes require that “special weight” be
given to a fit parent’s decisions regarding her child. See Troxel, 530 U.S. at 70, 120
S.Ct. at 2062. See also Page, 2006 S.D. 2, ¶ 73, 709 N.W.2d at 763. As a result,
Mother has failed to meet her burden of demonstrating that SDCL 25-5-29 and 25-
5-30 “clearly, palpably and plainly” violate the Constitution. See Green, 2001 S.D.
48, ¶ 18, 624 N.W.2d at 831. 3
[¶14.] Reversed.
[¶15.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and
SEVERSON, Justices, concur.
3. Grandparents and Mother have requested appellate attorney’s fees. Based
on this record, we conclude that each party should be responsible for their
own attorney’s fees. See Lovejoy v. Lovejoy, 2010 S.D. 39, ¶ 17, 782 N.W.2d
669, 674.
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