Third party visitation again - KOTA Territory News

Third party visitation again; an issue often in front of the Court these days



Gary Jensen
Beardsley, Jensen and Von Wald

Third parties – somebody other than a parent - may still obtain custody or visitation of a child pursuant to South Dakota statutes; the South Dakota Supreme Court recently reversed a Circuit Court decision which declared the statutes unconstitutional. 

SDCL 25-5-29 and 25-5-30 set out the circumstances permitting non-parents to obtain visitation or custody.  It's presumed to be in the best interest of a child to be in the care, custody, and control of his or her parent.  The presumption can be rebutted when there is parental unfitness or "extraordinary circumstances."  The statutes are constitutional, according to our Supreme Court, because they require that ‘special weight" be given to a fit parent's decisions regarding her child.

The bottom line to this very difficult issue is that custody or visitation may still be awarded to someone other than a parent if the circumstances warrant it within the framework set out by South Dakota statutes.   

To read more, see Feist and Lemieux-Feist  v. Lemieux- Feist, Fousek and State of South Dakota, 2010 S.D. 104.

E-mail Gary 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. 

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