Do Grandparents Have Visitation Rights in South Dakota?

An overview of grandparent visitation in South Dakota.

By , Attorney · Brigham Young University J. Reuben Clark Law School
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Grandparents don't enjoy the same parental privileges with their grandchild that parents have with their own children. A parent can completely cut off visitation between a grandparent and grandchild. In some cases, a court will award the grandparent regular visitation with a grandchild if it serves the child's best interests. Yet, in other cases, a judge might determine that grandparent visitation is inappropriate or detrimental to the parent-child relationship.

A number of factors go into decisions regarding grandparent visitation rights. If you are a grandparent seeking more time with a grandchild, it's important to understand your legal rights. This article provides an overview of grandparent visitation rights in South Dakota. If after reading this article you have questions, contact a local family law attorney for advice.

Overview of Grandparent Visitation Under Troxel

There isn't a federal law governing grandparent rights. Instead, the U.S. Supreme Court case of Troxel v. Granville set forth guidelines for states to follow in drafting their own grandparent visitation laws. Every state recognizes some form of grandparent visitation privileges, but each state has its own requirements.

In the 2000 Troxel decision, the Supreme Court affirmed that courts must defer first to parental rights; states must consider a child's best interests as well as a parent's objections to grandparent visitation. Under the rules set byTroxel, a parent's wishes must be considered before awarding grandparent visitation rights. If a judge determines that grandparent visitation is appropriate, the judge will tailor the visitation schedule so it doesn't negatively impact the parents' time with their children.

Grandparent Visitation in South Dakota

In South Dakota, grandparents are afforded strong legal protections. South Dakota's grandparent visitation statute has withstood Constitutional challenges, even though it's one of the broadest in the country. Under South Dakota's law, a court can order grandparent visitation whether or not the grandparent has filed a petition for visitation with the court. As required by Troxel, South Dakota's visitation law allows grandparent visitation when it serves a child's best interests, and:

  • the visitation doesn't significantly interfere with the parent-child relationship, or
  • the child's parents have denied or prevented reasonable visitation between the grandparent and grandchild.

For example, in one South Dakota case, a set of maternal grandparents was awarded regular visitation with their grandchild. Although the child's parent tried to prevent the visits, the court held that grandparent visitation didn't deprive the parents of their fundamental parenting rights. The court awarded substantial grandparent visitation because it served the child's best interests and fostered a strong grandparent-grandchild relationship.

In another South Dakota case, a court denied grandparent visitation because the grandmother couldn't show that visitation served the child's best interests. Under South Dakota's grandparent visitation statute, a grandparent must show that the child would benefit emotionally from time with spent with the grandparent. Courts must also consider the reasons behind a parent's objections to grandparent visitation. For example, in a different South Dakota case, a court denied visitation because of the ill feelings between the grandparent and parent. The court determined in that case that the contentious relationship didn't serve the child's best interests and it was better if the relationship was avoided.

When Can a Grandparent Obtain Custody of a Grandchild?

Natural parents have a fundamental right to rear and raise their children as they see fit. A court will only intervene if the parent is unable to meet the child's needs. Under very limited circumstances, including where a parent is unfit, a grandparent may obtain custody of a grandchild. Specifically, a grandparent who seeks custody of a grandchild must prove that:

  • the parent has consistently neglected the child
  • that the parent forfeited or surrendered parental rights to the child to anyone other than the other parent
  • the parent abandoned his or her parental rights and responsibilities, or
  • that other extraordinary circumstances exist which show that parental custody would harm the child.

In one South Dakota case, maternal grandparents had served as their grandson's primary caregiver for two (2) years, but weren't entitled to custody. Although a lower court initially awarded the grandparents custody, a higher court reversed the decision, because the child's father was a fit and able-bodied parent and hadn't surrendered his parental rights. The father had a history of past due child support, instability, and lack of contact with his son. By contrast, the grandparents were stable and loving caretakers to the child. However, the father wanted to raise his son, and the court determined that the father could sufficiently meet the child's needs.

The above case highlights the legal presumption that parents are entitled to custody of their children. A court can't award custody to grandparents just because they could do a better job at parenting. To obtain custody, a grandparent must prove that a parent is unfit. Ultimately, a grandparent's rights are always secondary to a parent's.

Can a Biological Grandparent Obtain Visitation with an Adopted Child?

Adoption permanently terminates a child's legal ties to biological parents and grandparents. Following a child's adoption, a biological grandparent can't seek visitation with the child unless the adoption was by a stepparent or other grandparent. Even in the case of stepparent visitation, the grandparent seeking visitation must prove that the visits would serve the grandchild's best interests.

Too often, grandparents are shut out of their grandchildren's lives when parents separate, divorce, or pass away. When a child most needs the sort of stability a grandparent can provide, some parents are quick to prevent visits or cut off contact altogether. The good news is that there's legal recourse for grandparents who want a relationship with a grandchild. If you have additional questions about obtaining court-ordered grandparent visitation or custody in South Dakota, contact a local family law attorney for advice.

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