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S.D. High Court Backs Grandparent Child Custody

South Dakota laws that allow grandparents and others to gain custody of children who aren't theirs are constitutional, the state Supreme Court said Thursday in a ruling that gives a couple another chance to seek custody of their 4-year-old granddaughter.

A circuit judge had thrown out the couple's request after ruling that state laws on the issue were unconstitutional because they allow courts to give others custody without first finding a child's parents unfit.

But the Supreme Court said the laws can stand because they require judges to give special consideration to fit parents. The laws presume it's in a child's best interest to be in the care and custody of a parent unless that parent is unfit or extraordinary circumstances exist, the high court said.

The ruling sends the Pennington County custody case back to circuit court to determine whether the grandparents should have custody of the girl.

Debra Watson of Rapid City, a lawyer for the grandparents, said the ruling improves the rights of children, who would often be better off with grandparents or others who love them, than their parents or in foster homes.

"It's a huge victory for the children of South Dakota because it does provide a placement option with a third party with whom the child already has a substantial attachment, when the child's parents are deemed unfit or extraordinary circumstances exist as defined by our statute," Watson said.

The girl's paternal grandparents sought custody after her parents broke up. They claim she would be better off with them because her parents have substance abuse and mental health problems and can't care for her properly.

The South Dakota Supreme Court said state laws require that a non-parent seeking custody must be a primary caretaker or parental figure for the child or have some other significant relationship with the youngster. The laws also say a parent's presumed right to custody can be overcome only with proof of abandonment, neglect or other extraordinary circumstances.

The U.S. Supreme Court has said parents' relationships with their children are protected by the Constitution and parents have a fundamental right to direct their children's upbringing, the South Dakota justices said.

But they also said the nation's highest court has not specifically required that parents be found unfit before a third party can gain visitation or custody rights. The U.S. Supreme Court ruling only requires that special weight be given to a fit parent's wishes for their children, the state court said, adding that South Dakota's laws do.

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