Grandparent Child Custody Allowed in Recent Court Decision

A recent court decision outside of Florida could have future implications for Florida child custody laws. The Supreme Court of South Dakota recently ruled that laws on the books in that state that allow grandparents to gain custody of grandchildren are constitutional.

Riverside family law attorneys noted that a lower South Dakota court had previously ruled the laws unconstitutional, because they allowed courts to award child custody to non-parents without first making a determination that the parents were unfit.

The rationale used by the South Dakota Supreme Court in upholding the laws was that the laws require judges to give special consideration to fit parents. The presumption is always that it is best for a child to be in the custody and care of a fit parent.

In other words, the first court said the laws were unconstitutional because they did not protect parents enough. But the Supreme Court decided the laws did have enough protections for fit parents.

The case will go back to the trial court for a new custody determination.

Advocates of the laws were pleased, because there are cases where children would be better off in the custody of grandparents than in the custody of unfit parents, or in foster care.

The child in the underlying case was a girl who had grandparents that sought custody after her parents broke up. The grandparents claimed the parents were unfit because of mental health issues and substance abuse problems.

South Dakota state law requires 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 child. They also say a parent’s presumed right to custody can be overcome only with proof of abandonment, neglect or other extraordinary circumstances.

The South Dakota Supreme Court looked at U.S. Supreme Court decisions and decided that the South Dakota laws had protections for fit parents, and did not require a finding that a parent was unfit before making a custody decision.