The South Dakota Supreme Court upholds the constitutionality of the state's grandparent visitation statute, which allows visitation if it is in the best interests of the grandchild and would not 'significantly interfere' with the parent-child relationship. Currey v. Currey (S.D., No. 22184, August 7, 2002).
Shawn and Connie Currey were divorced in 2001. Because Shawn was incarcerated at the time of the divorce, Connie was given custody of the couple's two children. The terms of the divorce decree and custody agreement allowed Shawn's parents, Marvin and Darlene Currey, to visit their grandchildren. In June 2001, Connie moved to a different city. The grandparents petitioned the trial court for a modification of their visitation schedule. Connie countered by asking the trial court to declare South Dakota''s grandparent visitation statute, SDCL 25-4-52, unconstitutional under Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), and terminate the grandparents'' visitation with the children.
SDCL 25-4-52 provides for grandparent visitation "if the visitation is in the best interests of the grandchild and either the visitation would not significantly interfere with the parent-child relationship or the parent or custodian of the grandchild has denied or prevented a grandparent reasonable opportunity to visit the grandchild." The trial court declared the visitation statute unconstitutional and the divorce decree and custody agreement illegal and unenforceable, thereby terminating the grandparents'' visitation. The grandparents appealed, arguing that the statute is not unconstitutional, and, even if it is, it is not determinative of the issue of their visitation rights because those rights arose by agreement and were approved by the court in the divorce decree.
The Supreme Court of South Dakota concludes that there is no showing that the visitation statute is unconstitutional under the circumstances of this case. Accordingly, the court reverses the trial court''s termination of the grandparents' visitation rights and remands to determine whether grandparent visitation is in the best interests of the children. Unlike the Washington State statute at issue in Troxel, the court holds that South Dakota's statute 'does not allow any individual to petition for visitation nor does it deprive the custodial parent of the fundamental right to make decisions concerning the care, custody, and control of the children.' (emphasis in original) The court does find that one provision of the statute--stating that there is a presumption that visitation is in the best interests of the grandchild if the parent has died--is unconstitutional, but that this provision does not apply in this case.
For the full text of this decision, go to: https://www.sdbar.org/opinions/2002/August/2002_098.htm.
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