Beardsley, Jensen and Von Wald
Grandparent visitation disputes are awful, wreaking terrible emotional and financial costs on all concerned. Sadly, they continue to exist and require the court system to have the wisdom of a panel of Solomons.
Recently, the South Dakota Supreme Court issued a decision reaffirming the "right" of grandparents to visitation, but delineated a rigorous burden of proof grandparents must meet in order to exercise their right.
Before ordering grandparent visitation, a trial court must (1) presume that a fit parent acts in his or her child's best interests, (2) give special weight to a fit parent's decision to deny or limit visitation, (3) consider whether the parent has completely denied visitation or simply limited visitation, (4) shift the burden to the parent to offer evidence in support of the parent's decision only if the grandparents overcome the parental presumption, and (5) require the grandparents to 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.
If a court orders grandparent visitation, it must make findings of fact and conclusions of law identifying the "special factors" it relies upon. Such factors might include, for example, physical or emotional harm to the child if grandchild visitation is denied, preference for grandparent visitation expressed by a child of sufficient age, "or some other compelling circumstance warranting state interference in parental decision making."
It is not sufficient that grandparents seek visitation by mere assertion that the grandchild will gain some benefit. Generalities about the positive influence grandparents have fall short of the necessary showing for government interference with parental decisions.
After observing the "painful dilemma" a court faces in these cases, our Court concluded its analysis by stating, "Ordinarily, though, we must defer to the fundamental rights our constitution affords the choices parents make, even if we might deem these choices regrettable."
Hopefully, you and your family will not find yourself in this terrible situation.
Lawline@KOTATV.com is intended as general information on legal issues affecting us all. This information should not be relied upon in any particular case and should never be used in lieu of consulting with an attorney.
1. You see yet another car accident at a spot where there have been many accidents in the past and will be more accidents in the future?
2. You learn another person is hurt using a machine that has injured others in the past and will injure others in the future?
3. You watch a dangerous practice – like where a school bus parks – you know is a disaster waiting to happen?
What should you do?
Try to prevent the next accident, injury, and catastrophe from happening.
How can you do that?
Send a letter or email to those responsible – the highway department, the owner and operator of the machine, the school district - putting them on notice of the danger.
Your letter or email will either prompt a "fix" or help the next innocent victim establish liability against those who failed to act.
Taking a few minutes to write a letter or email can have a huge impact; you can be a difference maker.