South Dakota is classified as a relatively permissive state with regard to grandparents' rights. It is one of the states in which grandparents may sue for visitation even if their grandchildren live in an intact family.
Provisions of the Law
Grandparents can be granted reasonable rights of visitation with their grandchild, with or without petition by the grandparents. As in all of the 50 states, the court must find visitation to be in the best interests of the grandchild.
In addition, in South Dakota, the court must make one of the two following findings:
- That the child's parent or guardian has denied visitation or has prevented the grandparent from having a "reasonable opportunity" for visitation
- That the visitation will not "significantly interfere" with the parent-child relationship.
Grandparents rights of visitation terminate upon the adoption of a grandchild, unless the adopting party is a stepparent or grandparent. See South Dakota Codified Laws, Section 25-4-54.
Challenges to South Dakota's Law
In 2000 the U. S. Supreme Court's decision of Troxel v. Granville dealt a blow to grandparents' right. It stated that the decisions made by fit parents are presumed to be in the best interest of their children, even when they deny those children contact with grandparents.
This decision opened the door for grandparent visitation laws to be challenged in virtually every state.
The constitutionality of South Dakota's statute was challenged in the 2002 case of Currey v. Currey. The Supreme Court of South Dakota upheld the law, saying that it was not overly broad like the Washington statute challenged in Troxel v.
The court did say , however, that one provision of the law was unconstitutional. This portion stated that there is a "presumption that visitation with the grandparents is in the best interests of the grandchild if a parent of that grandchild, who is also the child of that grandparent, has died." Because the decisions of the parents are presumed to be in the child's best interest, that presumption cannot be transferred to the grandparents no matter what the circumstances. That section of the law did not apply to the situation in Currey v. Currey, and it was subsequently repealed.
More Relevant Court Cases
The Supreme Court relied heavily on Troxel in 2010 when it reversed a lower court decision giving grandparents visitation. In the case In re: A.L. and S.L.-Z, the court stated that grandparents "bear the ultimate burden of establishing by clear and convincing evidence that special factors exist showing that the visitation they seek is in the child's best interests." [emphasis added]