Saturday, January 8, 2011

fotolia_3038387_XS.jpgThis blog is a great tool for keeping our readers informed about developments in family law. The field of family law has seen significant change over the past few decades. Grandparent visitation and child custody is an area of the law that is presently going through significant changes. A recent case from South Dakota underscores a trend in how the law treats grandparents seeking custody of their grandchildren.

Grandparent child custody has been around for a long time. However, grandparents are typically only given child custody when the parents are unavailable or unfit to be parents. South Dakota passed a law that gave grandparents child custody in certain circumstances even when the parents were not declared to be unfit.

The recent case stems from a request by grandparents to have child custody over their 4-year-old granddaughter after her parents broke up and endured substance abuse and mental health problems. They lost at trial when a judge declared the state law unconstitutional because the U.S. Constitution requires that the parents be found unfit before custody could be awarded to grandparents. They appealed that ruling to the state Supreme Court and won.

The state Supreme Court said the law was constitutional because the state law took the fitness of parents into account, and gave special consideration to fit parents. Additionally, the law presumed that children's interests are best served by being in the custody and care of their parents, unless their parents are unfit or other extraordinary circumstances exist.

The U.S. Supreme Court has said that a parent's relationship with his or her child is protected by the U.S. Constitution and parents have a fundamental right to raise their children. However, the South Dakota Supreme Court noted that the U.S. Supreme Court has never specifically required that a parent be found unfit before child custody could be given to a grandparent or family member.

Source: CBS News, "S.D. High Court Backs Grandparent Child Custody," 12/31/2010

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