(dissenting).
[¶ 34] I respectfully dissent. It is undisputed that Patrick is not the natural or adoptive parent of Samantha.
[¶ 35] In Cooper v. Merkel, 470 N.W.2d 253 (S.D.1991), this court squarely addressed the issue of the visitation rights of a nonparent. In Cooper, a couple lived together for seven years, however, they never married. The couple separated and, during the course of the protection order proceedings, the plaintiff sought visitation privileges with the defendant’s minor child. The plaintiff alleged that he had assumed part of the responsibility for raising the child, that he had become a de facto parent to the child and, therefore, he should be granted the opportunity to visit the child. The trial court dismissed the plaintiffs request and the plaintiff appealed. We affirmed, stating:
This court has not spoken directly to the issue of the visitation rights of a nonpar-ent. However, “[t]he right of visitation derives from the right of custody and is controlled by the same legal principles.” This court has spoken to the custodial rights of nonparents.
Before a parent’s right to custody over his or her own children will be disturbed in favor of a nonparent a clear showing against the parent of “gross misconduct or unfitness, or of other extraordinary circumstances affecting the welfare of the child” is required, and an award cannot be made to [nonparents] simply because they may be better custodians.
It follows that in order to grant a nonpar-ent visitation rights with a minor child over the wishes of a parent, a clear showing against the parent of gross misconduct, unfitness or other extraordinary circumstances affecting the welfare of the child is required.
Cooper, 470 N.W.2d at 255-56 (citations omitted) (emphasis in original).
[¶ 36] The principles enunciated in Cooper were subsequently reaffirmed in Matter of *849Guardianship of Sedelmeier, 491 N.W.2d 86 (S.D.1992). In Sedelmeier, a couple provided primary care for the child of a divorced neighbor woman for a period of seven years. At the end of this seven-year period, the mother took the child back into her custody. A custody dispute between the mother and the neighbor couple ensued. The trial court awarded custody to the mother and we affirmed. The trial court also denied the neighbor couple visitation with the child and this court affirmed stating: “Since there was no clear showing of unfitness, the court cannot order visitation for an unrelated non-parent over the wishes of the mother.” Id. at 89.
[¶ 37] In this instance, there has also been no clear showing of unfitness with regard to Tamara. Therefore, the trial court erred in awarding Patrick visitation privileges with Tamara’s child. SDCL 26-4-46 limits the circuit courts to awarding custody of and visitation with, “the children of the marriage.” In Paquette v. Paquette, 146 Vt. 83, 87, 499 A.2d 23, 27 (1986), the Vermont Supreme Court held that a stepchild was included as a “child of the marriage.” The court in Paquette, however, had the Vermont Legislature’s guidance at 15 V.S.A. § 291(g), which states that the definition of children “shall include stepchildren.” 146 Vt. at 93, 499 A.2d at 30 (Billings, C.J., concurring in part and dissenting in part) (citing 15 V.S.A. § 291(g)). Our legislature has not defined children to include stepchildren in allowing the trial court jurisdiction over stepchildren during divorce proceedings.
[¶ 38] In Perry v. Superior Court of Kern County, 108 Cal.App.3d 480, 166 Cal.Rptr. 583 (1980), superseded by statute as stated in In re Marriage of Goetz and Lewis, 203 Cal.App.3d 514, 250 Cal.Rptr. 30, 31 (1988), the court faced the same challenge as we do today. The Perry court noted:
We are aware that in this modern society there are probably a considerable number of stepparents and stepchildren in situations substantially similar to that before us. The Legislature has the power to address this thorny oroblem of visitation by stepparents. We, on the other hand, cannot rewrite Civil Code section 4351 by a strained interpretation of the phrase “minor children of the marriage” merely because one mother has made a decision which the trial court and probation department have determined is contrary to the child’s best interest.
166 Cal.Rptr. at 586. The California Legislature did respond by allowing trial courts the discretion to award a limited form of visitation to stepparents in a dissolution proceeding. Cal.Civ.Code § 4351.5 (West 1995). However, the California Legislature “acknowledged the importance of parental autonomy by cautioning that even an award of visitation to a stepparent ‘shall not conflict with any visitation or custodial right of a natural or adoptive parent[.]’ ” Nancy S. v. Michele G., 228 Cal.App.3d 831, 279 Cal.Rptr. 212, 217 (1991) (quoting Cal.Civ.Code § 4351.5(j)). The South Dakota Legislature must make the decision whether to grant stepparents visitation.
[¶ 39] We recognize that other jurisdictions have allowed visitation by a stepparent under the doctrine of in loco parentis. Carter v. Brodrick, 644 P.2d 850, 854 (Alaska 1982); Anderson v. Anderson, 191 Kan. 76, 79, 379 P.2d 348, 351 (1963); Paquette, 146 Vt. at 87, 499 A.2d at 27. Yet, this court rejected this doctrine in Cooper, 470 N.W.2d at 255-56.
[¶ 40] The majority applies the doctrine of parens patriae in order to grant Patrick visitation. In Williams v. Williams, 425 N.W.2d 390, 393 (S.D.1988), we held that trial courts have the authority and obligation to protect children from remaining in an environment detrimental to their emotional and physical well-being. See also SDCL 19-14r-26 and -27. The cases where we have recognized parens patriae deal with children of the marriage whose custody is at issue because neither parent really serves the child’s best interests. See Matter of Guardianship of Petrik, 544 N.W.2d 388, 391 (S.D.1996); Jeschke v. Wockenfuss, 534 N.W.2d 602, 605 (S.D.1995); Swenson v. Swenson, 529 N.W.2d 901, 904 (S.D.1995); Williams, 425 N.W.2d at 393; Jasper v. Jasper, 351 N.W.2d 114, 117 (S.D.1984). Tamara is not an unfit parent.
[¶ 41] Therefore, I would stay the course of the established precedent of our prior deei-*850sions and leave for the legislature to determine whether our trial courts have jurisdiction to decide stepparent visitation.