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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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